Nelson v. Economy Grocery Stores

• Decision Date: 12 March 1940
• Citation: 305 Mass. 383,25 N.E.2d 986
• Parties: NELSON v. ECONOMY GROCERY STORES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 383

25 N.E.2d 986

NELSON

v.ECONOMY GROCERY STORES.

Supreme Judicial Court of Massachusetts, Essex.

March 12, 1940.

Exceptions from Superior Court, Essex County; Morton, Judge.

Action by Gelia M. Nelson against the Economy Grocery Stores for personal injuries allegedly received when plaintiff slipped on a string bean on the sidewalk in front of defendant's store. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

F. H. Tarr, of Boston, for plaintiff.

J. W. Sullivan, of Lynn, for defendant.

RONAN, Justice.

The plaintiff, while travelling along Main Street in Gloucester in the early evening of August 29, 1936, slipped upon a string bean upon the sidewalk in front of the defendant's store and received personal injuries for which she seeks damages. The jury returned a verdict for the defendant. The plaintiff alleged exceptions to certain portions of the instructions to the jury.

On one side of the door, which was located in the middle of the front of the store, was a wooden stand 10 feet long containing one or two rows of bushel boxes, tipped toward the street, for the display and sale of vegetables. At the time of the accident, various kinds of vegetables, including string beans, were in the boxes upon this stand. Goods were sole from this sidewalk stand to the defendant's customers, but, as there were no scales at the stand, the goods were taken into the store by a clerk where they were weighed and then delivered to the purchasers. Vegetables of the same kind were also sold inside the store. The boxes on the stand were replenished from time to time from a stock of vegetables kept inside the store. These boxes were not covered and if anything fell from a box to the sidewalk it was the duty of the defendant's clerks to take ‘it right up’. The plaintiff testified that she was opposite the entrance to the store and was walking in the middle of the cement sidewalk, which was about 10 feet wide, when she slipped ‘upon a piece of string bean, part of which was still on the bottom of her shoe.’ After she fell she noticed that there were fragments of vegetables along the sidewalk and at the edge of the stand. Her son testified that immediately after the accident there were beans, peas, pieces of cabbage and other vegetables on the sidewalk under and alongside the base of the stand. An ordinance of the city prohibited the maintenance of any stand upon a sidewalk for the display or sale of goods.

The plaintiff's declaration, which was in a single count, alleged that ‘the defendant, by its agents and servants, improperly and negligently placed, and suffered to be and remain on the sidewalk in front of said store premises, baskets or boxes of vegetables, and had improperly and negligently placed or suffered to remain on the said sidewalk small quantities of string beans or other vegetables, which were scattered from said baskets or boxes thereon.’ It alleged no further or other breach of duty by the defendant. The answer was a general denial and contributory negligence of the plaintiff. Although the liability of the defendant was posited upon negligence in the particular manner alleged in the declaration, it is apparent from the record that the case was tried not on this issue alone, but also upon the question of nuisance. Indeed, one of the parties has briefed and argued before this court the question of nuisance. The deviation of the trial from the issue raised by the pleadings seemed to have resulted in considerable confusion and uncertainty, but the plaintiff did not object to this extraneous issue being presented and submitted to the jury. She cannot now contend that she was thereby prejudiced. Commonwealth v. Dascalakis, 246 Mass. 12, 26, 27, 140 N.E. 470;Wireless Specialty Apparatus Co. v. Priess, 246 Mass. 274, 140 N.E. 793.

At the conclusion of the charge the plaintiff's counsel excepted ‘to that reference that it [the presence of the string bean on the sidewalk] was something that ought to be expected-anticipated or foreseen by the storekeeper,’ and also excepted to that portion of the charge in which the jury were told that if the string bean came upon the sidewalk from the box the plaintiff must prove that was something the defendant should naturally have foreseen or anticipated. We assume in favor of the plaintiff that her exceptions relate to the two parts of the instructions that contained the only mention that it was for the plaintiff to prove that the presence of the string bean on the sidewalk was something the defendant should have reasonably anticipated.

We have examined the charge in reference to the matters to which objections were made. The jury were told, in substance, that if the string bean that caused the accident came from the box ‘then the plaintiff must satisfy you that that was something that the storekeeper should naturally have foreseen or anticipated, wholly aside from negligence,’ and later they were told that the ‘nuisance end of it so dominates the situation * * *. If you find negligence than there is no liability again, unless you find that the presence of the string bean on the sidewalk was naturally to be anticipated or foreseen, just the same as a case of nuisance.’ These two statements seemed to have resulted from the attempt of the judge to treat together the issues of negligence and nuisance, when only the former was in the case and when the latter was separate and distinct from the former because negligence is not an essential element of a public nuisance. Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 135 N.E. 318;Solomon v. Weissman, 265 Mass. 423, 164 N.E. 487;Bullard v. Mattoon, 297 Mass. 182, 8 N.E.2d 348. But the jury found that the plaintiff did not prove that the string bean came from the stand, and this finding rendered immaterial the question of nuisance because no causal connection between the maintenance of the stand and the presence of the string bean on the sidewalk was shown. Consequently the plaintiff could not have been harmed by the first statement, contained in the charge, to which she objected. Crowe v. Boston & Maine Railroad, 242 Mass. 389, 136 N.E. 189;Tucker v. Haverhill Electric Co., 262 Mass. 81, 159 N.E. 447.

Disregarding the portions of the charge dealing with the question of nuisance and considering all the remainder of the charge, which we must do, Cronin v. Boston Elevated Railway Co., 233 Mass. 243, 123 N.E. 686;Partridge v. United Elastic Corp., 288 Mass. 138, 192 N.E. 460, it sufficiently appears that, after directing the jury's attention to the different sources from which the vegetable that caused the accident might have come, the judge instructed the jury that the defendant was not to be held liable unless it should have reasonably anticipated the presence of the string bean upon the sidewalk. The correctness of the charge must be determined by the state of the evidence. Here there was no evidence as to the manner in which the string bean happened to be upon the sidewalk and there was nothing whatever to show how long it had been there prior to the accident. It was not error in these circumstances to instruct the jury, as we construe this portion of the charge, that there was no evidence of negligence other than the failure of the defendant to have anticipated that a string bean might become located upon the sidewalk. The negligent failure to anticipate the existence of a dangerous condition that he had brought about would make one liable for the resulting injuries. Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 87 N.E. 567;Delaney v. Framingham Gas, Fuel & Power Co., 202 Mass. 359, 88 N.E. 773;Ogden v. Aspinwall, 220 Mass. 100, 107 N.E. 448;Beauvais v. Springfield Institution for Savings, Mass., 20 N.E.2d 957, 124 A.L.R. 611. But there is no breach of duty if one is not responsible for the creation of the conditionsthat caused the injury. The...