Ferron v. King

Rugg, C. J. The plaintiff had one natural leg and one wooden leg with a flat base about three inches across. As he came out of the defendant’s cigar store, where for a considerable time he had been a regular customer, upon the public way, his wooden leg went through the walk, according to some of the evidence, “ in a slanting way towards the cellar and partly under the building,” and he sustained injuries by reason of which this action is brought. 1. It cannot be said as matter of law that the deposition of Lambert was admitted erroneously. There was ground to support the inference that the condition of the walk and foundation and cellar of the defendant’s store at the time of the deponent’s observations was the same as immediately after the plaintiff’s accident. Whether it was too remote was in the discretion of the trial judge within reasonable limits. This discretion does not appear to have been exercised wrongly. White Sewing Machine Co. v. Phenix Nerve Beverage Co. 188 Mass. 407. Jaquith v. Morrill, 204 Mass. 181, 191. Young v. Snell, 200 Mass. 242. 2. The refusal to rule that “ there was not sufficient evidence for the jury that the defendant knew or should have known by the exercise of due care and diligence that there was any defect in her premises ” was correct. There was evidence which, if believed, would warrant a finding that for some time before the injury to the plaintiff the filling was dropping away from the entrance to the defendant’s store in such a way as might render it dangerous, a situation which reasonable inspection would have revealed, and which when discovered reasonable prudence would [78] have remedied. In this respect the case is well within Tilton v. Haverhill, 203 Mass. 580, where the authorities chiefly relied upon by the defendant are discussed and distinguished by Mr. Justice Loring. 3. The jury were instructed, in language not objected to, as to the general principles which governed the defendant’s liability. They were further told, in substance, that they might take into account, as bearing upon the care which the defendant ought to exercise, the fact that she knew of the infirmity of the plaintiff, and that he was in the habit of trading at her store. The standard of care required of the defendant was that of the ordinarily prudent person in the light of all the circumstances by which she was surrounded. If her premises were frequented to her knowledge for. purposes of business by a person afflicted with some limitation of physical powers, that was equivalent to an invitation to him by her, and was a fact to be considered with all the others as bearing upon the question whether she had conformed to the required standard of care. Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478. Glennen v. Boston Elevated Railway, 207 Mass. 497, 500. Exceptions overruled.