Home REGINA FLYNN vs. F. W. WOOLWORTH COMPANY.

338 Mass. 789

January 7, 1959

Exceptions overruled. The plaintiff seeks to recover for personal injuries sustained by her while leaving the defendant's store on Riverside Avenue in Medford. After a verdict for the plaintiff, the judge entered a verdict for the defendant under leave reserved, to which the plaintiff excepted. The doorway in question was eight feet high and consisted of two doors of glass panels enclosed in wooden frames which swung outward and when closed met in the center of the doorway. The plaintiff, who had used the exit on numerous occasions, had just made a purchase and was carrying in her arms several books and a small box. She testified that she intended to take a bus to her home, but was "not in any particular hurry," and that she "pushed the door open with her left hand and the next thing she knew she was sitting on the sidewalk with some glass on her lap." As there is no evidence of any negligence on the part of the defendant with respect to the maintenance of the doorway, the plaintiff cannot recover. Smith v. Johnson, 219 Mass. 142 . Buzzell v. R. H. White Co. 220 Mass. 129 . Kelley v. Jordan Marsh Co. 278 Mass. 101 . Callaghan v. R. H. White Co. 303 Mass. 413 . Sterns v. Highland Hotel Co. 307 Mass. 90 . Rosenberg v. Hartman, 313 Mass. 54 . Mitchell v. William Filene's Sons Co. 335 Mass. 760 . Valunas v. J. J. Newberry Co. Inc. 336 Mass. 305 . Home Pub. Mkt. v. Newrock, 111 Colo. 428. Compare Norton v. Chandler & Co. Inc. 221 Mass. 99 ; Nersiff v. Worcester County Inst. for Sav. 264 Mass. 228 ; Promisel v. Hotels Statler Corp. 286 Mass. 15 ; Rutherford v. United States, 93 F. Supp. 772.

Home JOSEPH BARRETT vs. H. P. HOOD & SONS, INC.

338 Mass. 789

January 9, 1959

Exceptions overruled. The plaintiff, about five and one half years of age, was playing in the vicinity of the defendant's parking lot where a milk truck loaded with one hundred ten cases of milk was backing slowly -- about a mile an hour -- to park with some of the other trucks of the defendant. According to his own testimony the plaintiff, with three or four companions who were playing in the area in which the truck was proceeding to park, ran to meet the truck, the plaintiff giving directions to the operator as to the manner of backing. He then went to the rear of the truck and attempted to join his companions who were then, unknown to the driver, sitting on the rear floor which projected from the truck, but he was too short to climb upon the step. He caught hold of the iron rail used by the operator for the purpose of access to the interior of the truck, but the plaintiff's legs were too short to reach the ground and he held on for a short time with both feet in the air, let go of the rail, and was run over by the right rear wheel of the truck. Whether the accident occurred on the land of the defendant or that of an abutter is irrelevant in view of our opinion that in the circumstances the plaintiff was a licensee on the truck to whom the defendant owed the duty merely to refrain from wilful, wanton or reckless conduct tending to expose him to danger. Baines v. Collins, 310 Mass. 523 , 524. Sheehan v. Goriansky,

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317 Mass. 10 , 14. Scott v. Boston Elev. Ry. 318 Mass. 31 . On the evidence most favorable to the plaintiff we are of opinion that he failed to prove such conduct on the part of the defendant or its employees.