Shavelson v. Marcus

• Decision Date: 25 November 1930
• Parties: REBECCA SHAVELSON v. LOUIS MARCUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 237

REBECCA SHAVELSON v. LOUIS MARCUS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1930

October 9, 1930.

Present: RUGG, C.

J., CROSBY, PIERCE SANDERSON, & FIELD, JJ.

Negligence, Of one owning or controlling real estate.

At the trial of an action of tort for personal injuries against the owner of a house, there was evidence that, as the plaintiff was leaving the house after visiting it by appointment with the defendant, he caught his foot on a nail in the piazza floor and fell; that the nail protruded between two matched boards about an inch and a quarter; that it was rusty and its head quite large; and that the piazza floor was worn at that place. Held, that the evidence warranted a finding that the nail constituted a defect which had existed for such a length of time before the accident that the defendant, in the exercise of reasonable care, should have seen it and remedied it; and warranted a verdict for the plaintiff.

TORT for personal injuries. Writ dated October 23, 1926. Material evidence at the trial in the Superior Court before Walsh, J., is stated in the opinion. The judge denied a motion by the defendant that a verdict be ordered in his favor. There was a verdict for the plaintiff in the sum of $1,700.

The defendant alleged exceptions.

G.

B. Rowell, for defendant. G.I.

Cohen, for the plaintiff.

CROSBY, J. This is an action of tort to recover for personal injuries received by the plaintiff while on premises owned by the defendant. There was evidence that the property had been placed for sale by the defendant with one Silverman, a real estate broker who made an appointment with the defendant's wife for the plaintiff and her husband to visit the premises; that they made an examination of the house, and while they were leaving it and the plaintiff was taking the first step down from the porch to the street, her foot caught on something and she fell and was injured. She testified that after she had fallen she saw a nail protruding about an inch and slightly upward from a board in the piazza floor; that the nail was rusty and the head quite large; that the house was in poor condition and at that particular place the piazza floor was worn. There was further testimony tending to show that the nail was driven in between two matched boards of the piazza floor which were about an inch thick and that the nail was driven in about three quarters of an inch from the upper side of the board. The plaintiff testified that she did not notice the condition of the steps until after the accident. Her husband testified in substance that the nail protruded slightly upward an inch and a quarter, and that it had a rusty head. The defendant introduced evidence tending to show that neither he nor any of the tenants had ever seen the nail before the accident.

At the close of the evidence the defendant filed a motion for a directed verdict it was denied, subject to his exception. He also excepted to the...