Timbrell v. Plainville Recreational Drive-In Theatre, Inc., DRIVE-IN
| Decision Date | 06 November 1972 |
| Docket Number | DRIVE-IN |
| Citation | 289 N.E.2d 840,362 Mass. 880 |
| Parties | Kathleen Ann Belko TIMBRELL v. PLAINVILLE RECREATIONALTHEATRE, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward J. Davis, Boston, for plaintiff.
William D. Joyce, Boston, for defendant.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.
RESCRIPT.
This is an action in tort for negligence in which the defendant's answer was a general denial, contributory negligence, and assumption of risk. The jury found for the defendant, and the case is here on a bill of exceptions. The accident occurred in 1955 but the action was not brought until 1967 (the statute of limitations having presumably been tolled during the plaintiff's minority) and was finally tried in 1970. On September 1, 1955, the plaintiff with her mother and others came by car to the defendant's drive-in movie theatre and attended a picture showing there. The plaintiff was then eight years of age. At intermission, around 9 P.M., the plaintiff with others walked to the restaurant stand on the premises to buy refreshments. The plaintiff proceeded along a metal rail to the counter where food and coffee were being served. According to the plaintiff, a waitress behind the counter lost her balance while holding a container of very hot coffee in her hand; her arm came forward over the counter and the coffee spilled onto the plaintiff causing severe burns on the plaintiff's right upper arm and midchest. Testimony on the part of the defendant tended to prove that there was a cardboard tray on the counter with holes to secure uncovered cups of the hot coffee and that the plaintiff picked up the tray and spilled the coffee on herself. At the close of the evidence, the plaintiff's counsel requested an instruction roughly as follows looking to the defendant's version of the facts: that if coffee was placed in such a position on the counter that it might be reasonably anticipated by the defendant that it could involve the danger of an eight year old child reaching and causing the coffee to come upon the child, then the jury would be warranted in finding the defendant negligent and liable unless the child was contributorily negligent in her status as an eight year old child. The judge denied the requested instruction, and an exception was taken. He then instructed the jury generally. To this charge no exception was taken. The requested instruction was an attempt by the plaintiff to...
To continue reading
Request your trial