Pastrick v. S.S. Kresge Co.

• Decision Date: 24 October 1934
• Citation: 288 Mass. 194,192 N.E. 485
• Parties: PASTRICK v. S. S. KRESGE CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 194

192 N.E. 485

PASTRICK

v.S. S. KRESGE CO. (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 24, 1934.

Exceptions from Superior Court, Hampden County; W. A. Burns, Judge.

Two actions of tort by Mae A. Pastrick and by Frank Pastrick against the S. S. Kresge Company, heard by a judge without a jury. Finding for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

C. R. Clason, of Springfield, for plaintiffs.

E. Hutchins, of Boston, for defendant.

LUMMUS, Justice.

These actions, one by a woman for bodily injuries, and the other by her husband for consequential damages, arise out of a fall sustained by the former while walking down a stairway in a retail store of the defendant. Hearing the cases without jury, the judge found for the defendant. The plaintiffs alleged exceptions.

Each step was equipped with the so-called Mason safety tread, a metal strip three inches wide. This strip was composed of alternate trenches and grooves running across the tread of the step, near to and parallel with the edge, the trenches being one-half inch wide and filled with an abrasive to prevent slipping, and the grooves being one-quarter inch wide and hollowed out to a depth of three-sixteenths of an inch for the purpose of catching small articles that might cause a rolling of the foot. The surface of the tread was flat except for these small grooves. Unless the plan of the stairway and of the Mason safety tread constituted a defect, the stairway was safe. it was well lighted, it was equipped with hand rails on the sides and in the middle, there was a sign ‘Watch Step’ in a conspicuous position above the stairway, there was no foreign substance on the steps, and they were not worn to any appreciable extent.

There was evidence for the plaintiffs that the treads were approximately twelve and seven-eighths inches wide, and that the risers were approximately seven and one-half inches high. An expert witness for the plaintiffs testified that such steps were ‘not a good form of construction’ for a stairway for the use of customers in a retail store, and that according to ‘the usual practice of almost all architects' the sum of the width of the tread and the height of the riser should not exceed seventeen and one-half inches. He testified that the larger sum of the width and height in the stairway in question gave ‘an abnormally high cadence’ to the pacing of an ordinary person, with the result that his foot would touch different steps at different distances from the edge unless he should ‘instinctively recognize a change in the normal pacing, and rectify it’; and unless he should do that he might drag his ‘foot on over the nosing.’ The woman plaintiff testified that ‘she went down four or five stairs without taking hold of the hand-rail, had her weight on her right foot and was bringing her left foot off the tread above when the sole at the toe of her shoe on her left foot caught in one of the grooves,’ and she fell.

Exceptions were taken by the plaintiffs to the exclusion of their questions to the manager of the defendant's store, by which the plaintiffs offered to show that the manager held and had expressed an opinion that the stairway was dangerous to women, had so reported to the defendant, and had known of the falling of many women on the stairway. There were other exceptions to evidence which seem of minor importance, and need not be stated. Each plaintiff filed substantially the same requests for rulings, thirty-three in number, of which some were granted and some refused, and excepted to the failure to give the requested rulings not given.

The exceptions need not be discussed in detail. None of them relates to the physical condition of the stairway, which was not in dispute. The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where...