Robinson v. Weber Duck Inn Co.

• Citation: 1 N.E.2d 27,294 Mass. 75
• Parties: ROBINSON v. WEBER DUCK INN CO.
• Decision Date: 02 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 75

1 N.E.2d 27

ROBINSON v. WEBER DUCK INN CO.

Supreme Judicial Court of Massachusetts, Norfolk.

April 2, 1936

Action of tort by Rose V. Robinson against the Weber Duck Inn Company. From an order by the appellate division dismissing a report of the trial judge who found for plaintiff in the sum of $1,000, the defendant appeals.

Order affirmed.

Appeal from Appellate Division of District Court, Southern district.

H. P Mason, and R. J. Cook, both of Boston, for appellant.

K. C Tiffin, of Boston, for appellee.

DONAHUE, Justice.

The plaintiff with a party of friends, at about half past nine one evening became a guest in a restaurant conducted by the defendant. There were in the dining room a considerable number of inflated toy balloons resting against the ceiling and having the appearance of decorations. During the evening some of the balloons descended from the ceiling and came into the hands of guests. At about half past twelve the plaintiff and her friends were in the vestibule and were proceeding to leave the restaurant when the outer door of the building was opened and a gust of wind blew one of the balloons, which had been in the hands of a guest, against the plaintiff's face. Another guest touched the balloon with a lighted cigar there was ‘ a flash and an explosion’ and the plaintiff's fur coat was burned on the collar and on the sleeves. She has brought this action to recover for that damage.

The judge before whom the case was tried in the district court of Western Norfolk found for the plaintiff. He denied certain requests for rulings presented by the defendant. In substance, as treated by the defendant in argument, they were requests that there was no evidence to support a finding that the defendant was negligent and requests that the plaintiff's damages were not sustained as the proximate or immediate result of any negligence of the defendant. The trial judge reported his refusals to rule as requested by the defendant to the appellate division and there the report was ordered dismissed.

The defendant purchased of a ‘ novelty dealer’ two gross of uninflated rubber balloons and a metal drum of gas which was billed to the defendant as ‘ one tank of gas $5.00.’ Nothing appears in the record as to what if anything was said by the buyer or by the seller at the time of the purchase. There was no evidence as to whether or not the defendant had ever before purchased balloons and gas or had used balloons inflated with gas on its premises. The defendant brought the balloons and the tank of gas to its restaurant and the balloons were there inflated from the tank by the defendant's employees and were placed in the dining room between five o'clock and seven o'clock on the evening when the plaintiff became the defendant's guest.

A chemist called by the plaintiff qualified as an expert and testified that there were only three types of gases which would cause toy balloons to ascend: helium which is non-inflammable, and hydrogen gas and illuminating gas both of which are inflammable. He gave the opinion that the balloons in question were inflated with inflammable gas. From the plaintiff's testimony as to what happened and the chemist's description of the effect of touching a lighted cigar to a balloon filled with hydrogen gas it might have been found that the gas which the defendant used was hydrogen. He testified that if a lighted cigar were touched to a balloon containing hydrogen gas there would be a momentary flame and a report, that a slight spark would be sufficient to cause ignition, that the flame would spread and ignite anything inflammable although the rubber of the balloon would not burn and the gas in the balloon would not itself support combustion. He also testified that this type of balloon was used at Revere Beach and other places of amusement and that balloons inflated with hydrogen gas would tend to descend in about three hours. The trial judge found, and there was evidence to support the finding, that the balloons when filled with hydrogen gas were inherently dangerous articles.

Since the presence of the plaintiff in the restaurant of the defendant was a benefit to each, the defendant was under the obligation to use reasonable care to see to it that portions of the premises where the plaintiff was expressly or impliedly invited to go were reasonably safe for her use. Jacobsen v. Simons, 217 Mass. 194, 104 N.E. 490; Del Rosso v. F. W. Woolworth Co. (Mass.) 200 N.E 277. The defendant was also obligated not, without warning, to expose the plaintiff to a danger existent on the premises which was known or ought to have been known by the defendant but was not known or was not of such a character that it should have been known by the plaintiff. Statkunas v. L. Promboim & Son, Inc., 274 Mass. 515, 520, 174 N.E. 919; Kelley v. Goldberg, 288 Mass. 79, 81, 192 N.E. 513; Henebury v. Cabot, 288 Mass. 349, 352, 353, 193 N.E. 47, and cases cited. There was no evidence on which it could be found that the defendant actually knew that the balloons when...