Home SABINA SLUSARZ MOREAU vs. ALBERT SLUSARZ.

343 Mass. 771

November 2, 1961

Decrees affirmed. This is an appeal from a decree of the Probate Court for Hampden County allowing the will of Martin Slusarz. The judge filed a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, Section 11. The appellant filed a motion to amend the report, which was denied, and the appellant again appealed. The evidence is not reported, and there is nothing in the report of material facts to impair the findings. The judge was not required to grant any part of the motion to amend his report.

Home JOHN C. CONNELLY & another vs. ERNEST J. SCARPA & another.

343 Mass. 771

November 2, 1961

Exceptions overruled. That the jury awarded the plaintiff Catherine N. Connelly $12,000, notwithstanding the finding of the auditor (not final) that her damages were $15,000, did not require a new trial. Consistent with the rule stated in Cook v. Farm Serv. Stores, Inc. 301 Mass. 564 , 566-567, such a finding of damages, depending "upon sound judgment based largely upon common knowledge" (Sarhanis v. Young, 301 Mass. 571 , 572), is not binding where a description of the injuries, warranting a finding in a different amount, is given in the auditor's report, ibid., or in the testimony of witnesses before the jury. Savin v. Block, 297 Mass. 487 , 490. The testimony before the jury of the plaintiff and of two physicians warranted a verdict proportionate to the injuries as the jury appraised them, ibid. We discern no basis for concluding that the award was "greatly disproportionate to the injury proved." Bodwell v. Osgood, 3 Pick. 379 , 385, cited in Bartley v. Phillips, 317 Mass. 35 , 41. There is therefore no basis for holding that the judge's denial of a motion for a new trial was not well within the limits of his discretionary power, much less that it "could not have been the honest act of a conscientious judge acting intelligently" (Moran v. Pieroni, Inc. 326 Mass. 516 , 518), and hence abuse of discretion amounting to an error of law.

Home ROBERT ROBINSON vs. IPSWICH POST 1093, V. F. W. INC.

343 Mass. 771

November 6, 1961

Exceptions overruled. The judge directed a verdict for the defendant in this action of tort wherein the evidence most favorable to the plaintiff, who, we assume, was a business invitee of the defendant, showed that en route to the men's room he was caused to slip and fall on a very slippery, heavily waxed dance floor of the defendant upon which some liquor had been spilled by a waitress of the defendant approximately fifteen minutes before his fall. When the plaintiff fell (an hour and three quarters after his arrival) the premises were crowded, and the people were dancing, but the plaintiff had room enough to walk. The waitress had sloshed some drinks on the tray she was carrying and they spilled on the exact spot where the plaintiff later fell. None of the glasses, however, fell

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to the floor. At no time, before or after he fell, did the plaintiff see any liquid or other foreign substance on the floor. After he fell, he felt his pants and they were wet. The judge was right. "[M]ere slipperiness, in and of itself, does not establish negligence." Kay v. Audet, 306 Mass. 337 , 341. There is no evidence of the negligent application of wax. Cf. Ventromile v. Malden Elec. Co. 317 Mass. 132 . A highly polished surface is to be expected on dance hall floors. There is no duty to warn when the condition is obvious. McGuire v. Valley Arena Inc. 299 Mass. 351 , 352. Nor does the other evidence show that a dangerous condition, other than the mere slipperiness which already existed, was created by the spilling of the liquid. See Connolly v. Boston Elev. Ry. 309 Mass. 177 , 179. The amount of liquor spilled to the floor from the tray was conjectural, but inferentially (since there was no evidence that the glasses tipped over) was necessarily small. Compare Hutchins v. F. W. Woolworth Co. 324 Mass. 5 , 6. Moreover, even assuming the existence of such a dangerous condition, the plaintiff has not shown that such condition was causally related to his fall. Gerstenzang v. Kennedy & Co. Inc. 340 Mass. 174 .