McIlvane v. Percival
| Decision Date | 03 March 1958 |
| Citation | 337 Mass. 768,148 N.E.2d 182 |
| Parties | James McILVANE v. Vernon PERCIVAL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Marvin H. Margolies, Boston, for plaintiff.
Thomas R. Morse, Jr., Boston, for defendant.
Before RONAN, SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.
RESCRIPT.
This action of tort for personal injuries was brought in the Municipal Court of the City of Boston. It could have been found (a) that the plaintiff fell in the defendant's pool room when his foot caught in a long, dark crack, about one half inch wide, and one half inch deep, between uneven, chipped or worn boards on a wooden floor; (b) that the condition had existed unchanged for as much as five months prior to the injury; (c) that the plaintiff had seen the condition ten or twelve times before the injury, and was in the pool room four or five days each week; and (d) that at the time he did not think of the crack because he was concentrating on a pool shot. The trial judge refused to rule that there was no evidence to warrant a finding for the plaintiff and found for the plaintiff. The defendant appealed from dismissal by the Appellate Division of a report. Findings were warranted (a) that the defendant had failed to keep the premises in a reasonably safe condition for the use of business invitees and that the defect was not trivial (see Hillis v. Sears, Roebuck & Co., 284 Mass. 320, 321, 187 N.E. 558; Shrigley v. Boston Symphony Orchestra, Inc., 287 Mass. 300, 303, 191 N.E. 420; Schwartz v. Feinberg, 306 Mass. 331, 332-333, 28 N.E.2d 249; Di Noto v. Gilchrist Co., 332 Mass. 391, 392-393, 125 N.E.2d 239; compare Pastrick v. S. S. Kresge Co., 288 Mass. 194, 196, 192 N.E. 485, and cases cited); and (b) that the defect had existed long enough (see Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563-564, 126 N.E.2d 190; compare Kelleher v. Dini's, Inc., 331 Mass. 217, 219, 118 N.E.2d 77; Chastain v. Hotel Commander, Inc., Mass., 146 N.E.2d 912), for the defendant to have notice of it. The plaintiff's knowledge of the defect was merely evidence of contributory negligence and did not require a finding of contributory negligence as a matter of law. Spencer v. Bartfield, 334 Mass. 667, 668, 138 N.E.2d 129. Compare O'Neil v. W. T. Grant Co., 335 Mass. 234, 235, 139 N.E.2d 406.
Order dismissing report affirmed.
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...wet was merely evidence of negligence and did not require a finding of contributory negligence as matter of law. McIlvane v. Percival, 337 Mass. 768, 148 N.E.2d 182 (1958). The question was one for the jury. See Spencer v. Bartifield, 334 Mass. 667, 668, 138 N.E.2d 129 (1956). There was evi......
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