Hathaway v. Chandler & Co.

Crosby, J. The plaintiff, as a customer of the defendant, was rightfully in its store by its invitation, and no contention is made that she was not in the exercise of due care when injured. The only question is whether there was any evidence which would warrant a finding that the defendant was negligent. The plaintiff testified that as she was walking across the store with a friend her foot caught in a strip of matting upon the floor and she fell receiving the injuries complained of. She further testified that after she fell she saw the matting “looped up . . . that the center of the loop was from one and one half to two inches from the floor, and that about twelve inches in length of the edge of the rug was raised from the floor.” The strip of matting was about forty-five feet long, four feet wide, and a quarter of an [94] inch thick, was green in color, and made of cocoanut fibre; there was evidence that it was of a kind in common and general use, and there was no evidence to the contrary. The judge of the Superior Court rightly ruled that the plaintiff was not entitled to recover. Upon the evidence most favorable to her it seems plain that there was no negligence of the defendant. The case of Toland v. Paine Furniture Co. 179 Mass. 501, cited and relied on by the plaintiff, is clearly distinguishable from the case at bar. In that case the plaintiff caught her foot and fell over a rubber mat in a dimly lighted room. There was evidence that the mat was of cheap material, was much worn and curled up at the edge where she tripped, and was nailed down on each side. In the case at bar the evidence showed that the store was well lighted, and it did not appear that the matting was worn, defective or curled up; while the plaintiff testified that after she fell she noticed that for a space of about twelve inches the matting was raised at the centre for from one and a half to two inches from the floor, still there is no evidence whatever to show that it did not lie smoothly upon the floor up to the time the plaintiff caught her foot and fell. The plaintiff’s fall of itself is not evidence of negligence. As there is nothing to show that the edge of the matting was raised or was otherwise in a defective condition before the accident, there is no evidence of negligence on the part of the defendant. The condition of the matting before the accident does not appear; whether it was raised or lay smoothly on the floor is wholly a matter of conjecture. Kelley v. W. D. Quimby & Co. Inc. 227 Mass. 93. The cases of Hendricksen v. Meadows, 154 Mass. 599, Morris v. Whipple, 183 Mass. 27, Ginns v. C. T. Sherer Co. 219 Mass. 18, and Nye v. Louis K. Liggett Co. 224 Mass. 401, are all distinguishable from the case at bar. See McGowan v. Monahan, 199 Mass. 296. The plaintiff offered to show that at a time after the accident another person fell over the same matting while it was in the same position as that testified to by the plaintiff. This evidence was excluded and the plaintiff excepted. The exception has not been argued and may be treated as waived; the evidence was clearly inadmissible. Exceptions overruled.