CHARLES H. THORNTON, JUNIOR, administrator, & another vs. FIRST NATIONAL STORES, INC.

CUTTER, J. This is an action of tort, in which recovery is sought in one count for personal injuries to Mrs. Thornton, now prosecuted by her husband as administrator, and in another count for his consequential damages. A motion for directed verdicts was denied, subject to the defendant's exception, and there was a verdict for the plaintiff on each count. Exceptions were also saved to the admission of certain testimony, to the denial of several requests for rulings, and to some aspects of the judge's charge. The facts are stated in their aspect most favorable to the plaintiffs.

1. Mrs. Thornton was injured at about 10:30 A.M. on December 21, 1954, when she "stepped up on . . . [a] step in the recessed doorway of the" defendant's store. "[S]he slipped and fell and hit her knee on the corner of the step." She "noticed that there was a little rock salt there and . . . there was ice and some snow because it had been snowing over the ice." She told the manager of the store about it and "she saw an open salt bag there." When "she stepped

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up on this step . . . it was just . . . light snow over the ice, which was a `potted' ice" about an inch and a half to two and a half inches thick "frozen solid to the step. . . . [I]t was a dirty ice . . . under this snow because it had been snowing all day." Weather Bureau information in evidence showed that the temperature had ranged from 29 degrees Fahrenheit at 6 A.M. to 27 degrees at 10 A.M. and 26 degrees at 11 A.M. and that there had been a light snowfall for some hours.

From the presence of salt on the step the jury could have inferred that the defendant had tried to melt ice or snow on the step at some time prior to the accident and had knowledge of the presence of whatever old ice may have been on the step, even if the light snow on top had freshly fallen. The jury could also reasonably have inferred that the old ice had been there for some time because it was "frozen solid to the step." See Lanagan v. Jordan Marsh Co. 324 Mass. 540, 541; Willett v. Pilotte, 329 Mass. 610, 613; Schallinger v. Great Atl. & Pac. Tea Co. 334 Mass. 386, 390. Cf. Falden v. Gordon, 333 Mass. 135, 138. Although of some confirmatory value, the fact that the ice was dirty is of less significance, for ice in an entrance used for travel would be likely to become dirty very quickly. See Leary v. Jordan Marsh Co. 322 Mass. 309, 310. A verdict could not be directed for the defendant.

2. A chemical expert was permitted to testify, subject to the defendant's exception, that to keep ice of the thickness of one and one half to two and a half inches in melted form at temperatures from 26 degrees to 29 degrees Fahrenheit would require "roughly two and a half to five per cent of salt by weight which . . . is an extremely high concentration." We cannot say that this was not a proper subject for expert testimony or that, in view of Mrs. Thornton's observation of "a little rock salt" in the entrance, it was an abuse of discretion to admit the testimony. See Commonwealth v. Makarewicz, 333 Mass. 575, 591-592; Ellis v. Wingate, 338 Mass. 481, 487. Cf. Scully v. Joseph Connolly Ice Cream Sales Corp. 336 Mass. 392, 394; Merwin v. De Raptellis, 338 Mass. 118, 120.

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3. The admission in evidence of answers to interrogatories given by Mrs. Thornton prior to her death was permissible under G. L. c. 233, Section 65 (as amended through St. 1943, c. 232, Section 1), and Section 65A (inserted by St. 1931, c. 386). To the extent that these answers contained information about her injuries and treatment, medical matters of which Mrs. Thornton did not have direct personal knowledge, the defendant was not prejudiced. Because hospital records in evidence contained the same information, the testimony was merely cumulative.

4. The defendant requested a ruling that "[e]ven if . . . [Mrs. Thornton] fell because of snow or ice on . . . [the] step . . . the plaintiff cannot recover unless . . . such snow or ice had been there long enough so [that the] defendant should in the exercise of due care have remove[d] it." The request should have been given. The defendant properly excepted to the judge's failure to give it. The trial judge, after referring to the request, thereupon gave further instructions, quoted in part in the margin. [Note 1] The defendant now contends that these instructions did not clearly tell the jury that Mrs. Thornton could not recover if the jury found that the ice had not been there long enough so that the defendant should have discovered and removed it if in the exercise of due care. See Lanagan v. Jordan Marsh Co. 324 Mass. 540, 541. Nevertheless, at the close of the additional instructions, the defendant (cf. Horowitz v. Bokron, 337 Mass. 739, 746) merely "excepted to that portion of the

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additional charge . . . `that this was a dirty place.'" The judge, by the additional instructions on this phase of the case, had made a substantial attempt to correct his failure to give the defendant's requested ruling. If the defendant thought that the effort was not sufficient, it was incumbent on the defendant to renew its exception. See Cozzo v. Atlantic Ref. Co. 299 Mass. 260, 269. See also Commonwealth v. Hersey, 324 Mass. 196, 203-204. Cf. Shawsheen Manor Corp. v. Colantino, 329 Mass. 715, 719.

The presence of dirt, without more, is of slight, if any, probative value in determining how long ice, water, or other substances have been in a particular spot. See DiAngelo v. United Mkts. Inc. 319 Mass. 143, 148-149; Leary v. Jordan Marsh Co. 322 Mass. 309, 10-311; Uchman v. Polish Natl. Home, Inc. 330 Mass. 563, 565. The judge's references to the dirty ice, however, seem to have been little more than a method of recalling to the minds of the jurors the relevant testimony. It did not so overemphasize the significance of the dirt as to make his reference prejudicial error.

5. The judge in his charge referred to what we may reasonably infer to have been a comment by the defendant's counsel upon the administrator's failure to produce as a witness an attending doctor. Thornton had testified that the doctor was at the time of the trial in practice in Dedham. This was not sufficient proof of the actual availability of the witness on the day of trial to warrant comment by counsel on the witness's absence, even if, which we need not decide, upon adequate proof of the witness's availability such comment would have been proper. The defendant was not prejudiced by the judge's caution to the jury that such comment by counsel was improper. Cf. Horowitz v. Bokron, 337 Mass. 739, 743-744, and cases cited. Cf. also McKim v. Foley, 170 Mass. 426, 428.

6. The judge, subject to the defendant's exception, said in his charge: "A housewife that is injured . . . if there is a diminution, a lessening of her ability to earn, no matter in what she is engaged, . . . is entitled to damages. And

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if she is entitled to damage[s] for loss to earning capacity, then this administrator stands in her position . . .." He went on to say, "Now, there is in this case here a count for consequential damages. Consequential damages . . . are sought by the husband as a rule, for what he has paid out . . . to restore his wife to that condition of health . . . enjoyed just before the accident. He is entitled to anything he paid out for drugs or . . . for any hospital bills . . .. Those are called consequential damages. He is entitled to any diminution, any loss, any lessening of his wife's ability to earn which follows the accident, and is due to the injury she then received in the accident. Those are the elements that go to make up the damage part of the case" (emphasis supplied). The instructions were not clear. The jury on these instructions could have concluded (a) correctly, that Thornton as administrator was entitled to recover for his wife's loss of earning power, and (b) incorrectly, that Thornton, in his own right, was also entitled to recover for such loss. There cannot be a double recovery. Cassidy v. Constantine, 269 Mass. 56, 59. See Alden v. Norwood Arena, Inc. 332 Mass. 267, 276, and discussion in Thibeault v. Poole, 283 Mass. 480, 483-485; Cummings v. Brenci, 334 Mass. 144, 145-146. See also G. L. c. 209, Section 6; Saltzberg v. Lumbermens Mut. Cas. Co. 326 Mass. 351, 354. Cf. Hinckley v. Capital Motor Transp. Co. Inc. 321 Mass. 174, 178-179. [Note 2] The possibility of confusion was not cured by other provisions of the charge or by the brief additional charge [Note 3] on this point. The judge's inadequate additional comment was not so clear, or so plainly directed to correcting the earlier confused statement, as to lead us to refuse to consider the original exception in the absence of a further exception following the additional comment.

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7. The exception to the charge on recovery for loss of earning power is sustained. There must be a new trial confined to the issue of damages.

So ordered.