Letiecq v. Denholm & McKay Co.
| Citation | 102 N.E.2d 86,328 Mass. 120 |
| Parties | LETIECQ et al. v. DENHOLM & McKAY CO. |
| Decision Date | 28 November 1951 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. W. Proctor, Worcester, for plaintiffs.
J. A. Crotty, Jr., Worcester (J. A. Crotty, Worcester, with him), for defendant.
Before QUA, C. J., and RONAN, WILKINS, SPALDING & WILLIAMS, JJ.
Shortly after 5 P. M. on March 12, 1946, the female plaintiff, hereinafter called the plaintiff, went to the women's shle department in the defendant's store for the purpose of purchasing a pair of shoes. This department contained four aisles which ran through row of chairs. The plaintiff walked a few feet into one of the aisles (the width of which was four feet) and asked a clerk who was on duty there whether a certain brand of shoes was sold there. The clerk told her that that brand was not sold in that department and directed her to 'go right over on that side,' pointing to another department. The plaintiff went in the direction indicated by the clerk. In doing so the turned to her right and tripped over a foot measure and a footstool and fell. The place where she well was in the middle of the aisle. She tripped on the foot measure first and this in turn caused her to fall over the footstool. The foot measure was about four inches wide and about three feet long and had a heel grip on it. The stool was about three feet long, one foot wide and one foot high. The stool was of the type commonly seen in shoe stores, the 'clerk sits on it, and the customers put their feet on it when the clerk tries on the shoes.' Just before talking to the clerk the plaintiff had passed the footstool and knew it was there. Her conversation with the clerk lasted about two minutes. The plaintiff had come from the east and as she talked to the clerk the latter was facing east and the plaintiff was facing west. During this conversation the footstool was behind the plaintiff, and when she turned to her right after the conversation had ended she had forgotten about the stool. The stool was about thirteen inches away. The foot measure 'She had known it was there before, but forgot all about it afterward.' It is conceded that the plaintiff was an invitee.
At the conclusion of the evidence, of which the foregoing is a summary, the defendant presented a motion for a directed verdict on each count of the declaration and the motion was allowed. 1 The case comes here on the plaintiffs' exceptions to this action and to the exclusion of certain evidence.
The duty owed by the defendant to the plaintiff, a customer in its store, is so familiar that a few citations will suffice. Kelley v. Goldberg, 288 Mass. 79, 81, 192 N.E. 513; Palmer v. Boston Penny Savings Bank, 301, Mass. 540, 542, 17 N.E.2d 899, 120 A.L.R. 633; Parker v. Jordan Marsh Co., 310 Mass. 227, 229, 37 N.E.2d 465; Coates v. First National Stores, Inc., 322 Mass. 563, 565, 78 N.E.2d 501. Numerous cases have presented the question whether objects of one sort or another in a store or similar place and over which a customer tripped could be found to constitute negligence on the part of the person in control of the premises. In the following cases it was held that findings of negligence were warranted: Ginns v. C. T. Sherer Co., 219 Mass. 18, 106 N.E. 600, hat box left in the aisle of a millinery department; Nye v. Louis K. Liggett Co., 224 Mass. 401, 113 N.E. 201, weighing machine in a drug store near the exit; McCarthy v. Great Atlantic & Pacific Tea Co., 292 Mass. 526, 198 N.E. 757, drawer of bread box projecting into aisle near an entrance; Lombardi v. F. W. Woolworth Co., 303 Mass. 417, 22 N.E.2d 28, weighing machine projecting into aisle; Keeley v. Miller Drug Co., 324 Mass. 692, 88 N.E.2d 342, pail of water in path of travel between door and soda fountain.
On the other hand, it has been held in the following cases that as matter of law no negligence was shown: Mahoney v. Great Atlantic & Pacific Tea Co., 269 Mass. 459, 169 N.E. 424, sled leaning against radiator; Adriance v. Henry Duncan Corp., 291 Mass. 202, 196 N.E. 906, lawnmower on display in hardware store; Brooks v. Sears, Roebuck & Co., 302 Mass. 184, 19 N.E.2d 39, wooden curbing in parking lot; Parker v. Jordan Marsh Co., 310 Mass. 227, 37 N.E.2d 465, platform on which modles were displayed; O'Hanley v. Norwood, 315 Mass. 440, 53 N.E.2d 3, protruding handle of jack in filling station; LeBlanc v. Atlantic Building & Supply Co., Inc., 323 Mass. 702, 84 N.E.2d 10, piece of canvas in driveway of lumber yard; Griffin v. Fletcher Hardware Co., Inc., 327 Mass. ----, 97 N.E.2d 744, roll of...
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