Prushensky v. Pucilowski

• Decision Date: 31 December 1929
• Citation: 169 N.E. 422,269 Mass. 477
• Parties: PRUSHENSKY v. PUCILOWSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 477

169 N.E. 422

PRUSHENSKY

v.PUCILOWSKI.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 31, 1929.

Report from Superior Court, Essex County; Patrick M. Keating, Judge.

Action by Joseph Prushensky against Casimer Pucilowski and Amelia Pucilowski. Casimer Pucilowski having died before trial, case was continued against Amelia Pucilowski, individually and as administratrix of the estate of Casimer Pucilowski. At close of the evidence, plaintiff discontinued his action against Amelia Pucilowski individually. Verdict for plaintiff. On report. Judgment for defendant.

William E. Sisk and Richard L. Sisk, both of Lynn, for plaintiff.

E. J. Coughlin, of Lynn, for defendant.

PIERCE, J.

This is an action of tort to recover damages for injuries, alleged to have been sustained by the plaintiff through the negligence of the defendant's intestate in placing upon a common stairway a paint can upon which the plaintiff tripped and was thrown to the cellar floor. The action was brought originally against Casimer Pucilowski and his wife, Amelia, individually. Before trial Casimer Pucilowski died; the case was then tried to a jury against Amelia Pucilowski individually and as administratrix of the estate of her husband. At the close of the evidence, with the consent of the judge, the defendant not objecting, the plaintiff discontinued his action against Amelia Pucilowski individually. The jury found for the plaintiff, and the trial judge reported the case to this court upon all the evidence material to the issues, with the following stipulation: ‘If the trial judge was right in submitting the case against the female defendant as administratrix to the jury judgment is to be entered for the plaintiff in the sum found by the jury; otherwise judgment for the defendant.’

The judge instructed the jury: ‘If you should find that the plaintiff did not fall because of a can being on the stairs, or through some other cause, or if you should find that he did fall because of the presence of a can on the stairs but that that can was not placed there by the defendant's intestate, her late husband, then your verdict should be for the defendant.’ The facts most favorable to the plaintiff as they appear in the report are in substance as follows: At the time of the accident the plaintiff lived in a three tenementblock owned by the defendant and her intestate. The defendant occupied the first floor, the plaintiff was a tenant on the second floor, and the third floor was occupied by another tenant. The stairway on which the plaintiff fell led from the first floor to the cellar and was a common passageway. After returning home from his work, the plaintiff, at about 2:30 P. M., went down this common passageway to the cellar and remained there until three or four o'clock that afternoon. It was light there and he did not notice anything on the stairs. Going down the stairway to the cellar there is one step, then a wide step, then a turn and five steps to the...