Rocco v. Boston-Leader, Inc.
| Decision Date | 04 January 1960 |
| Docket Number | BOSTON-LEADE,INC |
| Citation | 340 Mass. 195,163 N.E.2d 157 |
| Parties | Josephine ROCCO v. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John A. Fiorentino, Everett, for plaintiff.
Peter D. Cole, Boston (Albert E. Good, Cambridge, with him), for defendant.
Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE, and CUTTER, JJ.
In this action of tort the plaintiff testified that on September 9, 1955, she entered the defendant's store; that while walking around looking at merchandise 'her left foot slipped and twisted under her and she went down'; and that she 'did not go all the way to the floor since her daughter-in-law had hold of her right arm and was supporting her.'
The plaintiff based her right of recovery on the fact that the floor was improperly waxed. The plaintiff's daughter-in-law testified that the The defendant's manager testified that the floor was covered with 'vinal plastic requiring little waxing' and that it was 'cleaned every six weeks by a commercial cleaner with rotary brushes of steel wool and waxed with nonskid wax.' He also testified that the 'floor was in good condition [on] the day of the accident.' There was no testimony as to when the floor was last waxed.
The judge in finding for the defendant stated, 'I find as a fact that the floor had not been improperly waxed and that it was not in a dangerous condition' and that the plaintiff 'failed to establish a breach of any duty of the defendant.' A report to the Appellate Division was dismissed and the plaintiff appealed.
The sole question presented by the report is a ruling on evidence, which arose in these circumstances. The plaintiff testified that 'while she was being assisted to an erect position by her daughter-in-law * * * one of the salesgirls came running over to her' and said The plaintiff testified that the salesgirl's remark 'seemed to come out of * * * [her] all of a sudden and was made while she [the plaintiff] was being assisted to her feet, and couldn't have been more than a second or two after the moment when her left foot slipped.' The evidence as to what the salesgirl said was admitted de bene with the understanding that if the judge later ruled that the evidence was inadmissible the plaintiff's rights would be saved. When making his decision, the judge stated that
There was no error.
The evidence was not competent as an admission to bind the...
To continue reading
Request your trial
-
Corsetti v. Stone Co.
...respect to a discretionary matter concerning the exclusion of evidence. We have not done so in the past. See Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197, 163 N.E.2d 157 (1960); Griffin v. General Motors Corp., 380 Mass. 362, 365-366, 403 N.E.2d 402 (1980). Moreover, it is highly irregu......
-
Com. v. French
...their proposed break. No defendant was present. The judge erroneously admitted this testimony as res gestae. See Rocco v. Boston Leader, Inc., 340 Mass. 195, 196, 163 N.E.2d 157. See also Commonwealth v. Hampton, 351 Mass. 447, 449--450, 221 N.E.2d 766; Anderson, Wharton's Criminal Evidence......
-
Commonwealth v. Wilson, 17-P-254
...sinker" in McLaughlin, remains the foundation for the excited utterance exception in Massachusetts. See Rocco v. Boston-Leader, Inc., 340 Mass. 195, 196-197, 163 N.E.2d 157 (1960) ; Mass. G. Evid. § 803(2) (2018), and cases cited.However, the "Wigmorian" view, which is also reflected in Fed......
-
Com. v. Bowie
...must depend upon its own circumstances." 6 Wigmore, Evidence § 1750, at 203 (Chadbourn rev. 1976). See Rocco v. Boston-Leader, Inc., 340 Mass. 195, 196-197, 163 N.E.2d 157 (1960); Commonwealth v. McLaughlin, 364 Mass. 211, 223, 303 N.E.2d 338 (1973); Commonwealth v. Williams, 399 Mass. 60, ......
-
After Crawford double-speak: "testimony" does not mean testimony and "witness" does not mean witness.
...its sway and to be dissipated.... [T]here can be no definite and fixed limit of time." Id. at 569 (citing Rocco v. Boston-Leader, Inc., 163 N.E.2d 157 (Mass. 1960) (quoting WIGMORE, supra, [section] (23) See JOHN HENRY WIGMORE, THE PRINCIPLES OF JUDICIAL PROOF: AS GIVEN BY LOGIC, PSYCHOLOGY......
-
NEW YORK'S EXCITED UTTERANCE HEARSAY EXCEPTION: AVE ATQUE AND VALE?
...(Mass. App. Ct. 2018) (first quoting Commonwealth v. McLaughlin, 303 N.E.2d 338, 346 (Mass. 1973); then citing Rocco v. Boston-Leader, 163 N.E.2d 157, 158 (Mass. (217) See Mayhand v. United States, 127 A.3d 1198, 1207 n.10 (D.C. 2015) (first quoting Odemns v. U.S., 901 A.2d 770, 778 n.7 (D.......