350 Mass. 47

December 10, 1965 - December 31, 1965

Suffolk County


Evidence in an action that a customer of a variety store leaving a stool in front of a soda fountain fell and was injured when she "put her . . . foot back . . . [and] caught her foot" in a latticework wire rack placed three to four inches behind the stool, whose positions she had observed on entering the store and on previous visits there, warranted a finding of negligence on the part of the proprietor of the store in the placing of the rack, and did not require a finding of contributory negligence on the part of the customer.

TORT. Writ in the Superior Court dated October 25, 1960.

The action was tried before Paquet, J.

James J. Twohig for the plaintiff.

Steven J. Cohen for the defendant.

WHITTEMORE, J. These are the plaintiff's exceptions to the direction of a verdict for the defendant in an action of tort for personal injuries sustained by the plaintiff on August 29, 1960, in the defendant's variety store when her foot caught in a wire display rack behind the soda fountain. The jury could have found as follows: There were five or six stools in front of the fountain and to its right was a window. The wire rack "in the form of latticework" extended from the window behind the right hand stool and half way to the next stool in a line parallel to the stools. The space between the rack and the right hand stool measured three to four inches. When the plaintiff entered the store all the stools were occupied except the one nearest the window. She observed that the rack came up "in . . . back of the stool" in the same position that she had observed when previously in the store. She "squeezed in between the woman on the second seat from the window

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and the wire rack. . . . In leaving . . . [she] turned to her left . . . [and] put her left foot back in order to get up . . . [and] caught her foot in the . . . rack and fell." The evidence should have been submitted to the jury. They could have found negligence in the placing of the rack. The plaintiff was invited into a space from which she could not get out except at the risk of engagement with the latticework of the rack. It was not contributory negligence as a matter of law to use this customer space in response to the invitation and to leave it in the way described, regardless of whether the plaintiff had the position of the visible rack in mind, or should have. See Robicheau v. Supreme Mkts. Inc. 333 Mass. 608 , 609-610. To the extent that O'Neil v. W. T. Grant Co. 335 Mass. 234 , 235, states a different rule we decline to follow it.

Exceptions sustained.