311 Mass. 320

February 4, 1942 - April 1, 1942

Suffolk County

Present: FIELD, C.J., QUA, COX, & RONAN, JJ.

Evidence merely that a patron of a lighted theatre slipped on a greasy spot on the floor between rows of seats and that the floor had been waxed some time before, without evidence as to how long before, did not warrant a finding of negligence on the part of the proprietor of the theatre.

TORT. Writ in the District Court of Chelsea dated December 11, 1939.

The case was heard by Walsworth, J.

F. H. Farrell, for the plaintiff.

H. F. Tracy, for the defendant.

COX, J. The plaintiff and a female companion went to the defendant's theatre one evening about a quarter to eight to see moving pictures. There had been an afternoon performance. The plaintiff's companion preceded her down the aisle, the theatre being lighted, and walked into a row where there were vacant seats. When her companion reached the third or fourth seat in from the aisle, she slipped. When the plaintiff reached the spot where her companion is alleged to have slipped, she also slipped and fell. When she looked at the floor where she had slipped, she noticed that it was "sort of greasy like" and was "greasy and slippery." When her companion looked "in the same spot" she noticed something that looked and felt like "grease or dried soap," and that the floor was slippery as glass. There was other evidence that the floor was waxed some time before the night in question. This is all the evidence reported that bears in any way upon the condition of the floor.

The trial judge found for the plaintiff, denied certain of

Page 321

the defendant's requests for rulings, one of which is that the evidence does not warrant a finding that the defendant was negligent, and gave as his reason for the denial of this request his finding that the defendant and its employees were negligent. The Appellate Division for the Northern District found that there was prejudicial error in the denial of this request, ordered that the finding for the plaintiff be vacated, and that judgment be entered for the defendant. The plaintiff appealed. See Moskow v. Fine, 292 Mass. 233, 234, 239; Himelfarb v. Novadel Agene Corp. 305 Mass. 446, 449.

The defendant's duty to the plaintiff as an invitee need not be repeated. See Keenan v. E. M. Loew's, Inc. 302 Mass. 309, 311. It could have been found that the plaintiff slipped at the spot, the condition of which was described. Although there was evidence that the floor was waxed some time before the night in question, there is no other evidence as to when this was. There is no evidence, apart from the description of the floor, as to how long the condition described had existed. See Rosenthal v. Central Garage of Lynn, Inc. 279 Mass. 574, 576; Renzi v. Boston Elevated Railway, 293 Mass. 228, 231; Smail v. Jordan Marsh Co. 309 Mass. 386, 387. Compare Jennings v. First National Stores, Inc. 295 Mass. 117, 118; Bavosi v. Interstate Theatres Corp. 307 Mass. 124.

The case at bar is distinguishable from cases like Manell v. Checker Taxi Co. 284 Mass. 151, Foley v. F. W. Woolworth Co. 293 Mass. 232, 234, where many cases are collected, Zanes v. Malden & Melrose Gas Light Co. 298 Mass. 569, Correira v. Atlantic Amusement Co. Inc. 302 Mass. 81, 83, and Bavosi v. Interstate Theatres Corp. 307 Mass. 124.

We are of opinion that the evidence reported did not warrant a finding that the defendant was negligent.

Order of judgment for defendant affirmed.