Home MABEL DAVIS vs. ALBERT STEIGER, INC.

360 Mass. 861

December 7, 1971

This is an action in tort for injuries the plaintiff suffered when she fell while walking down a stairway in the defendant's department store. A verdict for the defendant was directed and the plaintiff excepted. Viewed in the light most favorable to the plaintiff, the evidence shows the following. At the time of the accident the plaintiff was holding onto the railing as she went down the stairway. She was wearing high-heeled shoes. Her shoe slipped on a stair and she fell, suffering injury. The stair on which she fell was slippery and its edge was worn down about a quarter of an inch. We think this evidence was insufficient to permit submission of the case to the jury. Shinkwin v. H. L. Green Co. Inc. 318 Mass. 70 . To the extent that Bennett v. Jordan Marsh Co. 216 Mass. 550 , is contrary, we decline to follow it.

Exceptions overruled.

Home PACELLA DEVELOPMENT CORP. vs. PETER G. RUSCITTO & others.

360 Mass. 861

December 8, 1971

This suit in equity was commenced by a writ dated January 7, 1970, and returnable March 2, 1970. The bill alleged, in substance, that the defendants had entered into an agreement in 1967 to convey certain real property to the plaintiff and it sought to enforce specific performance against the defendants. The case was called for trial on May 26, 1970. On May 27, 1970, the plaintiff's motions to remove from the advance list and to continue the case were denied. A final decree dismissing the bill for want of prosecution was entered on that day. The plaintiff appeals from the denial of the motions and from the final decree. All matters raised by this appeal were for the judge's discretion. "The decision as to whether or not a case shall be tried when reached or continued for hearing at a later time rests within sound judicial discretion." Foote v. Process Equip. Co. Inc. 353 Mass. 755 . Morgan v. Steele, 242 Mass. 217 . The record before us is devoid of any showing of an abuse of that discretion. On the contrary, considering the date of the alleged agreement and the date on which the matter was

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called for trial, the judge had ample reason to believe that the plaintiff had adequate time to prepare its case.

Interlocutory decrees affirmed.

Final decree affirmed with costs of appeal.