This is an appeal from an order of the Probate Court denying the framing of jury issues with respect to the alleged will (executed on September 20, 1955) of the late Mary D. Miller, who died in 1964 at the age of 105. The expected evidence has been examined. We give due weight to the decision of the probate judge. No error is perceived in the refusal to frame the three requested issues. For the governing principles see Spilios v. Bouras, 337 Mass. 176 , 177, and cases cited. See also O'Brien v. Wellesley College, 346 Mass. 162 , 169-173. Cf. Tarricone v. Cummings, 340 Mass. 758 , 761-764.
Order denying jury issues affirmed.
The plaintiff has excepted to the allowance of the defendants' motion for a directed verdict in this action of tort in which he seeks recovery for injuries sustained by him on premises controlled by the defendants. The plaintiff, a business invitee, was leaving the defendants' store when the defendant Freda Dupuis stepped back and motioned him to pass in front of her across sweepings which he had seen her accumulate. He crossed "directly over the sweepings," then slipped and fell before he reached the door. He noticed after his fall a banana peel with the sweepings. The defendants were obliged to exercise reasonable care to keep in safe condition that portion of the premises to which customers were invited or at least to warn the plaintiff of dangers not known or obvious to him as an ordinarily intelligent person which were either known or ought to have been known by the defendants. Greenfield v. Freedman, 328 Mass. 272 , 274, and cases cited. Here the plaintiff saw the sweepings and chose to walk across them.
Following the decision in Reder v. Reder, 348 Mass. 783 , a decree after rescript was entered on March 23, 1965. The defendant's appeal from this decree, and motions by him to set aside the decree and to suspend its operation, were dismissed on motions by the plaintiff on June 21, 1965. The defendant on July 12, 1965, filed a bill of exceptions alleging exceptions to the allowance of the plaintiff's motions. On July 13, 1965, the plaintiff filed a motion to dismiss the bill of exceptions. This motion was allowed on July 26, 1965, but the allowance was not docketed until October 11, 1965. The defendant on October 13, 1965, filed in the county court a petition for leave to appeal late from the order of July 26, 1965, dismissing his bill of exceptions. G. L. c. 214, Section 28. The single justice ruled that the defendant (petitioner)
had failed to show a meritorious appeal. This was essential. See General Motors Corp., petitioner, 344 Mass. 481 , 482-484. He also ruled that the defendant (petitioner) had shown no cause for setting aside the final decree or suspending its operation. He found the exceptions to be without merit and dismissed the petition. The rulings of the single justice were correct.
Decree dismissing petition affirmed.