325 Mass. 76

October 24, 1949 - November 30, 1949

Bristol County


Evidence merely of the maintenance of a "break in the continuity of . . . [a] slope," consisting of a "drop" or step of six to eight inches without a warning sign on premises where a race track was conducted did not warrant a finding of negligence of the proprietor of the premises toward a patron injured through a fall on the step while in a "dense crowd" where it was "difficult to see."

TORT. Writ in the Superior Court dated July 10, 1946. The action was tried before Warner, J. J. J. Harrington & H. W. Radovsky, for the plaintiffs, submitted a brief. D. D. Leahy, for the defendant.

SPALDING, J. This action is brought by Leonora Gurll, hereinafter called the plaintiff, for personal injuries sustained while she was a business invitee on premises controlled by the defendant. By amendment a second count was added in which the husband of the plaintiff sought consequential damages. G. L. (Ter. Ed.) c. 231, Section 6A, as inserted by St. 1939, c. 372, Section 1. Verdicts were returned for the plaintiff and her husband which were recorded under leave reserved. Thereafter the judge entered verdicts for the defendant subject to exceptions of the plaintiff and her husband. The correctness of this action presents the only question for decision.

These facts could have been found: The defendant operates a race track in Raynham where dog racing is conducted. On the evening of July 21, 1945, between eight thirty and nine o'clock, the plaintiff and her husband,

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accompanied by their two children, after paying the admission price entered the defendant's premises through a turnstile. From there they proceeded "over smooth level terrain" to the vicinity of the bandstand, "which is an area north of the general racing ground." The plaintiff then left her family and walked "up a slight macadam incline" east from the grandstand toward the ticket sellers' windows. These windows were located sixty to seventy-five feet east of the track. "She then proceeded thirty feet from the said sellers' windows on a slight smooth decline." As she walked toward the track "the crowd was very dense" and she fell as she went through the crowd. The fall occurred about thirty feet from the ticket windows at a place where there was a "break in the continuity of the slope." It was a "drop" or step which was "not the conventional step that you see anywhere." The drop or step was "sixty feet long and six to eight inches in depth." There were no signs warning that the step was there. There were about twenty of these steps about three feet apart, and they were "curved like an amphitheater." The steps "descended from the spot where . . . [the plaintiff] fell, westerly to the race track." The ticket windows and the race track were seventy-five feet apart. The windows were lighted and there were lights around the track but between the races the track was not lighted. There were no lights within thirty feet of the place where the plaintiff fell. "With the dense crowd it was difficult to see in this area." When the plaintiff fell she was "milling into a dense crowd [which was] milling toward the track."

The bill of exceptions does not state that it contained all the evidence material to the question presented. This, of itself, is enough to justify overruling the exceptions but, as the result is unchanged, we consider the case on the merits. McKin v. Siegel, 256 Mass. 269. Hall v. Smith, 283 Mass. 166, 167.

The duty owed by the defendant to the plaintiff, an invitee, has been set forth in numerous decisions of this court and need not be restated. See Crone v. Jordan Marsh

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Co. 269 Mass. 289, 291; Kelley v. Goldberg, 288 Mass. 79; Rynn v. Fox-New England Theatres, Inc. 299 Mass. 258, 259; Coates v. First National Stores, Inc. 322 Mass. 563, 565. That duty was not violated here. "It is matter of common observation that in entering and leaving stores, halls, railway car stations and platforms, office buildings, and other buildings . . . adjoining surfaces are frequently at different levels, and the difference in level has to be overcome by one or more steps of greater or less height or by some other device. . . . We cannot think that such a construction is of itself defective or negligent." Ware v. Evangelical Baptist Benevolent & Missionary Society of Boston, 181 Mass. 285, 286. One entering premises where a race track is maintained cannot reasonably expect to find all parts of the premises at the same level or expect that there will not be steps or other devices between the levels. There was no evidence of any defect in the step itself at the place where the plaintiff fell, and we are of opinion that neither the placing of a step at that point nor the type of construction can be said to be negligent. The case is governed in principle by Ware v. Evangelical Baptist Benevolent & Missionary Society of Boston, 181 Mass. 285, 286, Hoyt v. Woodbury, 200 Mass. 343, 345, Pastrick v. S. S. Kresge Co. 288 Mass. 194, Rynn v. Fox-New England Theatres, Inc. 299 Mass. 258, and Sterns v. Highland Hotel Co. 307 Mass. 90. See Lord v. Sherer Dry Goods Co. 205 Mass. 1, 3. Compare Kennedy v. Cherry & Webb Co. Lowell, 267 Mass. 217; Rosen v. Boston Symphony Orchestra, Inc. 315 Mass. 732. The count of the plaintiff's husband for consequential damages falls with the plaintiff's case. Brazinskos v. A. S. Fawcett, Inc. 318 Mass. 263, 267.

Exceptions overruled.