Toland v. Paine Furniture Co.

Morton, J. The plaintiff was bound to show by a fair preponderance of the evidence that the accident was due to negligence on the part of the defendant. She was herself unable to tell what caused it. But that, as the presiding justice told the jury, was not conclusive against her right to recover, if the accident was in fact due to the defendant’s negligence. It is not contended, and it could not be, that the maintenance of the stairway close by the door through which the plaintiff passed, and the neglect of the defendant to warn the plaintiff of it constituted negligence on its part. Hunnewell v. Haskell, 174 Mass. 557. What the plaintiff relies on is that the small mat between the top of the stairs and the long mat was curled up and out of repair, and worn on the edge next to the long mat, and that that caused her to trip and fall. In order to entitle her to recover on [477] that ground she was bound to show that that was its condition at the time of the accident, and that the defendant knew it, or in the exercise of reasonable care ought to have known it, and to have remedied it. The only evidence tending to show such defective condition was the testimony of a witness who examined the mat on the same day several hours after the accident; of another witness who examined it on Monday, the accident having occurred on Saturday, and the testimony of a man in the defendant’s employ who had charge of arranging the two rooms on the first floor of the defendant’s store, of which the room where the accident occurred was one, and of the carpets, mats, and floors of those rooms, and wrho testified in substance that he knew what the condition of the mats was about the time of the accident, that he did not notice that the mat was curled up; that he did not notice any change in the condition of the mats, and did not know whether there was any between the time of the accident and the time when they were examined several hours later by the witness referred to above, and that there was no change to his knowledge for a month after. Taking into account the character of the alleged defect, we think that this evidence, if it does not fall short of showing that there was a defective condition at the time of the accident, at least falls short of showing that, if there was such a condition, it had been there so long that the defendant knew or ought to have known of it. The evidence is as consistent with the existence of the defect, if there was one, for a few moments only before the accident, as it is with its existence for a longer time. It does not seem to us, therefore, that the plaintiff has sustained the burden of showing that the defect (if there was one) had existed so long before the accident that the defendant, in the exercise of reasonable care, ought to have known of it and remedied it. We think that the exceptions should be sustained. So ordered.