Hendricken v. Meadows

28 N.E. 1054, 154 Mass. 599, 1891 Mass. LEXIS 192

• Court: Massachusetts Supreme Judicial Court
• Decided: November 18, 1891
• Status: Published

Opinion

Lathrop, J.

The only questions which have been argued by the defendant in this case are whether there was sufficient evidence to warrant the jury in finding due care on the part of the plaintiff, and also negligence on the part of the defendant.

We are of opinion that there was evidence for the jury on both of these points. The evidence was conflicting on the questions whether any warning was given to the plaintiff, and whether she saw the hole before the accident. Although it appears that she might have seen the hole if she had looked on the floor, and had not had her eyes fixed upon the articles in the showcase which she desired to purchase, yet we cannot say, as matter of law, that such conduct on her part amounted to a want of due care. Whether a woman who, while in a shop where she has no reason to apprehend danger, keeps her eyes fixed upon articles which are put on exhibition to attract purchasers, rather than upon the floor in search of pitfalls, uses the ordinary caution and vigilance which persons of reasonable prudence would be expected to use under like circumstances, is a question of fact for the jury, and not of law for the court.

If no warning was given, the evidence was abundant to warrant the jury in finding that the defendant was guilty of negligence. Although there was evidence that the defendant’s clerk warned the plaintiff, she testified that she did not bear the warning. The defendant contends that this is not sufficient evidence that the warning was not given. But the plaintiff could not, by her own testimony, contradict the defendant’s evidence in any other way. The jury might well have been of the opinion that, under the circumstances, if any warning was given, it must have been heard; and, if they believed the plaintiff, have found that, as the warning was not heard, it was not given.

Exceptions overruled.