Spencer v. Bartfield
| Decision Date | 13 November 1956 |
| Citation | 334 Mass. 667,138 N.E.2d 129 |
| Parties | Vernon H. SPENCER v. Isaac BARTFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas S. Carey and David E. Swartz, Worcester, for plaintiff.
Thomas F. Maher, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is an action of tort for personal injuries sustained by the plaintiff on July 4, 1947, as a result of negligence of the defendant. It was agreed at the pre-trial hearing that the plaintiff was a tenant of the defendant on the date of the accident and that the defendant was the owner of the premises and in control of the common passageway where the accident occurred.
The case comes here upon an exception to the denial of the defendant's motion for a directed verdict. The only issue argued by the defendant is contributory negligence of the plaintiff. There was no error.
There was evidence from which the jury could find that the plaintiff prior to the accident had been a tenant on the first floor of a three apartment dwelling house at number 44 Tainter Street, Worcester, since 1937. Sometime in 1940 the defendant became the owner of the premises. There were four cement steps leading from the sidewalk to a cement walk which led to the entrance to the apartment house. Early in 1947 a break occurred in the cement walk causing a crack in it. This crack was about one and one half feet beyond the top cement step. It was about two and one half to three inches deep and about three inches wide. It ran diagonally across the walk. On March 1, 1947, the plaintiff directed the condition to the attention of the defendant who said he would fix it. The accident happened at about 7:30 P.M. when the sun was shining. The plaintiff walked up the steps preparatory to entering the house. Just as he passed over the top step his foot caught in the crack in the walk. He stumbled, fell and fractured his right arm.
In cross-examination the plaintiff admitted that he It is upon this statement that the defendant relies to sustain his contention that the plaintiff was guilty of contributory negligence. We do not agree. We are of opinion that the case was properly submitted to the jury. While the plaintiff's knowledge of the defect was evidence which the...
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Mirick v. Galligan
...in determining the question, (but) it did not as matter of law require a finding of contributory negligence.' Spencer v. Bartfield, 334 Mass. 667, 668, 138 N.E.2d 129, 130 (1956); Goldstein v. Gontarz, 364 Mass. 800, 804, 309 N.E.2d 196 (1974). Only in a rare case may a judge rule as matter......
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Hubbard v. Palmer Russell Co.
...City of Boston, 301 Mass. 492, 494, 17 N.E.2d 696; Reagan v. Town of Belmont, 316 Mass. 467, 469-470, 55 N.E.2d 765; Spencer v. Bartfield, 334 Mass. 667, 668, 138 N.E.2d 129. There was no error in the denial of the defendant's motion for a directed Exceptions overruled. 1 Mass.Adv.Sh. (1961......
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Tanner v. Eliot Realty Corp.
...of law. McIlvane v. Percival, 337 Mass. 768, 148 N.E.2d 182 (1958). The question was one for the jury. See Spencer v. Bartifield, 334 Mass. 667, 668, 138 N.E.2d 129 (1956). There was evidence from which the jury could have found that the plaintiff proceeded with due care in entering and lea......
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Summering v. Berger Realty, Inc.
...N. H. & H. R. Co., 301 Mass. 361, 363, 17 N.E.2d 189. This was a question of fact for the jury to determine. See Spencer v. Bartfield, 334 Mass. 667, 668, 138 N.E.2d 129; Hubbard v. Palmer Russell Co., Mass., 178 N.E.2d 869. There was no error in the denial of the defendant Berger's motion ......