Home MAX RUCH vs. BANCROFT WHEELER.

354 Mass. 776

November 27, 1968

The plaintiff's exceptions are to the judge's charge and his refusal to give certain instructions to the jury in an action of tort against a physician for negligence. The plaintiff also excepted to the denial of his motion for a new trial. The only evidence regarding liability came from the defendant. The judge in his charge was far more voluble than instructive. The charge was prolix and most of it was unnecessary. Nevertheless, considering it in its entirety, we do not believe that there was prejudicial error. In addition, although the judge denied the defendant's motion for a directed verdict, to which no exception was taken, from our review of the evidence we do not see how the jury could have arrived at a verdict other than one for the defendant. From the foregoing it is obvious that the denial of the plaintiff's motion for a new trial was not an abuse of discretion.

Exceptions overruled.

Home JAMES M. LANE'S (dependent's) CASE.

354 Mass. 776

November 29, 1968

There is no error in the final decree of the Superior Court awarding workmen's compensation death benefits to a surviving widow. The evidence permitted the board's finding that the deceased, although compensated by a share of commissions, was an employee of the insured real estate firm and not an independent broker, and that he was engaged on the employer's business at the time of the accident; also that exertion, while on a business trip, in changing a tire on a cold January day was a cause of the coronary seizure that preceded and led to his death. The board could infer that the deceased had been changing the tire from the testimony that a passerby found him, lying on the ground, gasping and gurgling, beside the jacked up car in the breakdown lane. The trunk of the car was open. The right rear snow tire had been removed and was on the road and the spare tire was in place. McLean's Case, 323 Mass. 35 , 38. The medical testimony based on probability was adequate to permit the conclusion that there was a medical connection between the injury and death. The decree is affirmed. Costs and expenses of appeal shall be awarded by the single justice.

So ordered.

Home GEORGE C. STOKES vs. OLD COLONY TRUST COMPANY, executor.

354 Mass. 776

November 29, 1968

Stokes, tenant of a basement apartment, seeks to recover from his landlord's estate for injuries allegedly caused by "the defective condition" of a common stairway. About 10:30 P.M. on May 30, 1964, Stokes left the building by the back door. Two basement hall ceiling lights, "on always," were not burning. The lower two thirds of the rear stairs get light from one of these. Stokes operated the switch. Nothing happened. About 12:15 A.M. Stokes returned by the front door, and proceeded to the rear stairs. Lights were on in the front of the house. He hit his head on a projection, not changed after Stokes' tenancy began, near the top of the stairs. There "the light . . . came from the second floor landing." He thought he "lost . . . [his] footing and fell." His injuries impaired his memory. The trial judge excluded testimony concerning whether the basement lights were burning on May 24 or 25 and, in the mid-forenoon, two or three days after the accident. There was no offer of proof of any attempt to turn the lights on by using the switch on either occasion. Upon a motion, in part based upon a variance (between

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the alleged "defective condition" of the stairs and the attempted proof of lack of light; see Richards v. New York, N.H. & H. R.R. 328 Mass. 204 , 206; cf. Berwin v. Levenson, 311 Mass. 239 , 246-247), the trial judge directed a verdict for the defendant. The evidence did not show more than conjectural causal connection between any lack of light and the injury (see Wardwell v. George H. Taylor Co. 333 Mass. 302 , 305; Fallstrom v. Brady Elec. Co. Inc. 347 Mass. 600 , 607) or that the landlord was charged with notice, by complaint or lapse of time, that any lights were not burning. See Falden v. Gordon, 333 Mass. 135 , 138. Cf. Sullivan v. Hamacher, 339 Mass. 190 , 193. Cf. also Coan v. Adams, 332 Mass. 654 , 656-657. The judge reasonably excluded testimony about the lights several days before and after the accident. See Burwick v. McClure, 318 Mass. 626 , 631.

Exceptions overruled.