Home M. ELIZABETH COUNIHAN & another vs. JORDAN MARSH COMPANY.

338 Mass. 796

February 12, 1959

Exceptions overruled. This is an action of tort in two counts. In the first, the female plaintiff (hereinafter called the plaintiff) seeks to recover for the alleged negligence of the defendant; in the second, her husband seeks consequential damages. We summarize the evidence as follows: On December 7, 1953, the plaintiff entered the defendant's store to do some shopping. She went to a counter on which there was a "T" shaped metal fixture used for the display of shopping bags. "[T]he `T' standard was approximately eighteen to twenty-four inches high, holding . . . shopping bags on its arms." The standard, the base of which was round, was not affixed to the counter. The weight of the standard was "on the bottom." While the plaintiff was standing about two feet from the standard, it fell from the counter and injured her. The plaintiff saw no one in the vicinity of the standard and she did not see it fall. At the close of the evidence the judge directed verdicts for the defendant subject to the plaintiffs' exceptions. There was no error. What caused the standard to fall is a matter of conjecture. It cannot be said on the evidence in this record that the defendant's use of the standard for display purposes constituted negligence. There is nothing to show that its construction was such that it would be likely to fall when put to ordinary use. In short, the evidence shows no more than that a display device, not shown to be defective or dangerous, fell on the plaintiff. There are situations where the happening of an accident occurs in circumstances which would warrant an inference of negligence (Cushing v. Jolles, 292 Mass. 72 , 74), but this is not one of them. See Rankin v. Brockton Pub. Mkt. Inc. 257 Mass. 6 , 10.

Home THOMAS W. WATKINS AND SON, INC. & another vs. TOWN OF AMESBURY & others.

338 Mass. 796

February 27, 1959

Decree affirmed. This is an appeal from a final decree ordering the corporate plaintiff to pay the defendant town the sum of $360 for use and occupation of a certain parcel of land in accordance with a counterclaim in the answer and dismissing the bill of complaint. The bill sought, among other things, to have a vote of the limited town meeting to sell the land to another company declared invalid; and to have St. 1957, c. 69, Section 1, declared unconstitutional as "onerous, burdensome and impossible of accomplishment." This statute raised the number of signatures necessary to obtain a referendum on a vote of the limited town meeting from twenty-five to one hundred in each precinct. There are six precincts, and the signatures must be obtained in five days. The judge found against all the contentions of the plaintiffs, and made findings and an order for decree "On the above facts and all the evidence." This was not the equivalent of a report of

Page 797

the material facts found by him under G. L. c. 214, Section 23, and the entry of the decree imported a finding of every fact essential to sustain it and within the scope of the pleadings. Birnbaum v. Pamoukis, 301 Mass. 559 , 561-562. There is no need to make a pronouncement on the constitutional question. Attorney Gen. v. Dover, 327 Mass. 601 , 608.