FANNIE OSTROFF vs. JACOB DONDIS
Negligence, Contributory. Evidence, Presumptions and burden of proof. Practice, Civil, Ordering verdict.
At the trial of an action by a woman against the proprietor of a store for personal injuries suffered when she fell as she was descending a stairway to the basement, where the plaintiff admitted that it was daylight and the flight of stairs was straight and testified that there was a pile of papers on the stair and her foot turned on the stairs and on the paper, it was proper for the trial judge to refuse to rule either that there was no evidence that the plaintiff was not in the exercise of due care or that upon all the evidence the jury should find that the plaintiff was in the exercise of due care: the question, whether the plaintiff exercised due care, was for the jury to determine.
TORT for personal injuries. Writ dated November 7, 1922.
In the Superior Court, the action was tried before Gray, J. Material evidence and rulings by the judge upon request by the plaintiff are stated in the opinion. The jury found for the defendant. The plaintiff alleged exceptions.
D. R. Radovsky, (H. W. Radovsky with him,) for the plaintiff.
H. F. Hathaway & E. A. Hathaway, for the defendant, were not called on.
CARROLL, J. The plaintiff testified that she went to the defendant's place of business to purchase merchandise; that while going down a flight of stairs leading to the basement, she fell and was injured; that she fell because "there was a big pile of papers at the bottom stair that covered one step or two steps; that her foot then slipped . . . that the bottom one or two were covered with these. papers . . . that her foot turned . . . on the stair and on the paper." She admitted it was daylight and the flight of stairs was straight; that she supposed "she could have pushed . . . [the paper away with her foot . . . [but] she did not stop to do that." At the close of the evidence the plaintiff asked the judge to
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rule: (1) There was no evidence that the plaintiff was not in the exercise of due care; and (2) upon all the evidence the jury should find that the plaintiff was in the exercise of due care. The jury found for the defendant.
The trial judge was right in refusing to make either of the rulings requested. The question of the plaintiff's care was one of fact for the jury. The judge could not rule that the plaintiff was in- the exercise of due care. Although her testimony was not contradicted, the jury might not have believed it. They might have found that she was not injured in the way she testified; nor because the paper was on the stairway. The weight to be given to her testimony was for the jury. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 191. Dorne v. Adams, 243 Mass. 438,440.
Even if the jury believed a part of the plaintiff's testimony and disbelieved other parts, they could have found that, in going down the stairs and seeing the paper, she might have paused and pushed it away before proceeding, and that she was not in the exercise of proper care in acting as she did. See Hicks v. H.B. Church Truck Service Co. 259 Mass. 272.
Exceptions overruled.