Potter v. Dunphy
| Citation | 297 Mass. 345,8 N.E.2d 785 |
| Parties | MARY A. POTTER v. LEONA J. DUNPHY. |
| Decision Date | 26 May 1937 |
| Court | United States State Supreme Judicial Court of Massachusetts |
April 6, 1937.
Present: RUGG, C.
J., FIELD, DONAHUE LUMMUS, & QUA, JJ.
Practice, Civil Leave reserved under G. L. (Ter. Ed.) c. 231, Section 120. Landlord and Tenant, Common stairway.
An exception by the defendant to the denial of his motion that a verdict be entered for him after leave reserved under G. L. (Ter. Ed.) c. 231, Section
120, properly brought before this court the question whether the evidence at the trial warranted the verdict for the plaintiff although the reservation of leave was made without any previous exception by the defendant.
A landlord in control of a common stairway in a tenement house properly was found liable for injuries sustained by his tenant's daughter when she tripped on a defective rubber tread on one of its steps, which had been in good condition at the time of the letting.
TORT. Writ in the Superior Court dated December 30, 1931. The action was tried before F. T. Hammond, J., who, after the recording, with leave reserved, of a verdict for the plaintiff in the sum of $2,500, denied a motion by the defendant that a verdict he entered in her favor. The defendant alleged an exception.
The case was submitted on briefs.
F. W. Ziniti & A.
L. Brown, for the defendant.
W. A. Taylor & D.
A. Foley, for the plaintiff.
The plaintiff lived with her father in a third floor tenement hired by him in October, 1930, as tenant at will of the defendant. At the time of the letting, the treads of the common stairway in the control of the defendant were covered by rubber mats, nearly a year old, about one eighth of an inch thick, nailed at the back of the treads near the riser and so moulded and thickened at the front that they fitted over the front of the treads and remained in place without being fastened.
As time went on, the mats curled at the front, ceased to fit over the front of the treads, and tended to curl up or fold up on the treads. On May 17, 1931, according to evidence in the case, the plaintiff sustained injury by tripping over such a curled or folded mat.
Without any previous exception, the judge reserved leave under G. L (Ter. Ed.) c. 231, Section 120, when the jury returned a verdict for the plaintiff. Later the defendant excepted to the denial of her motion that a verdict be entered in her favor under the leave reserved. That single exception brings the case here. The plaintiff contends that the reservation of leave was improper and ineffectual, because there were no "exceptions . . . alleged" and no "question of law reserved" within the section cited, to serve as the basis for the reservation of leave to enter a different verdict. Perhaps it would be enough to say that the plaintiff saved no exception to the procedure adopted. Buono v. Cody, 251 Mass. 286 , 289. But in Moore v. Amesbury, 268 Mass. 462 , 465, there was a similar...
To continue reading
Request your trial