339 Mass. 779

November 5, 1959

Exceptions overruled. This is an action of tort for injuries sustained by the plaintiff, a patron, when he slipped and fell because of an accumulation of waxed paper cups and liquids spilt therefrom in an aisle of the defendant's sports arena. The case was heard upon the report of an auditor whose findings were not final and upon oral evidence before a judge without a jury. The auditor found that the defendant was negligent and that the plaintiff was not guilty of contributory negligence. The judge found for the plaintiff in the sum of $1,118.87 in accordance with the report. He properly denied the defendant's motions to strike out certain designated portions of the auditor's report for none of them was irrelevant, conjectural or a mere conclusion of law not warranted by the facts found, as the defendant contended. The denial of the motion for a directed verdict for the defendant had no place at a jury waived trial, and there was no error even if we consider the motion as a request for a ruling in favor of the defendant. The defendant was obliged to use ordinary care to keep its premises in a reasonably safe condition, having regard to the construction of the place, the character of the entertainment given and the customary conduct of persons attending. Constantine v. Proven Pictures of Boston, Inc. 338 Mass. 463 , 464, and cases cited. It could have been found that by the exercise of ordinary care the accumulation of waxed paper cups and liquids should have been discovered and remedied. The fact that the plaintiff had seen the accumulation prior to his fall did not require a holding that he was contributorily negligent. Correira v. Atlantic Amusement Co. Inc. 302 Mass. 81 , 83. Mello v. Peabody, 305 Mass. 373 , 375. Hayes v. Boston Fish Mkt. Corp. 319 Mass. 556 , 559. Constantine v. Proven Pictures of Boston, Inc. 338 Mass. 463 , 464.


339 Mass. 779

December 1, 1959

Order dismissing report affirmed. The plaintiff, a subcontractor, brought this action of contract against the general contractor to recover for the installation of vinyl tile and cork flooring and vinyl tile base in the infirmary at Hanscom Field, Bedford. The declaration contained two counts, one on the written contract, and one in quantum meruit. The defendant's answer included a declaration in set-off seeking damages alleged

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to have been incurred by it because of the plaintiff's failure to perform in accordance with the terms of the contract. The judge found for the defendant in the original action and for the plaintiff (original defendant) on its declaration in set-off. A report to the Appellate Division was dismissed and the plaintiff appealed. The questions of law arise from the denial of several requests for rulings presented by the plaintiff. We have examined the record and briefs with care and are satisfied that the trial judge did not err in dealing with the requests. For the reasons set forth in the opinion of the Appellate Division, with which we agree and to which nothing need be added, we are of opinion that the order dismissing the report must be affirmed.