DeFilippo v. DiPietro

Ritgg, C.J. This is an action of tort whereby the plaintiff, a tenant, seeks to recover of the defendant, her landlord, for injuries alleged to have been sustained by the defective condition of a common stairway in the control of the defendant. One issue at the trial was whether the plaintiff might be found to have been in the exercise of due care. The evidence upon this point was that a defect in the stairway arising from a broken step had existed for about four weeks prior to the plaintiff’s injury, and that during this period the plaintiff had walked up and down these stairs almost every day and had seen the defect; that at the time of the accident it was so light that she could have seen it if she had looked, but that in coming down the stairs she did not look to see where she was stepping and was not as careful as she had been on previous occasions; that the defect in the step had gone out of her mind at the moment and she was not thinking of it. This evidence warranted findings that the defect in the stair arose after the commencement of the tenancy a number of years before and that the plaintiff was in the exercise of due care. Looney v. McLean, 129 Mass. 33, 36. Callahan v. Dickson, 210 Mass. 510, 515. Another issue at the trial was whether the plaintiff had lost weight by reason of the accident. Her husband testified that she had been weighed upon a scale where, by putting a penny in a slot, a card came out with figures on it indicating the weight, and that as the card came out it showed on several occasions “Sometimes 102 and sometimes 104 pounds.” If the witness were present and saw with his own eyes the card with the figures upon it come out of the machine, it was competent for him to testify what those figures were. Such testimony would stand on the same footing as testimony of the indication of the weight upon an ordinary platform scale. It is argued that the witness was not present but was testifying from what he saw upon slips shown him by the plaintiff. That does not clearly appear in the record. The excepting party is bound to set out enough in the bill [189] of exceptions to show that there has been error. His failure in the case at bar to show that the witness was not present and did not see the slips prevents him from requiring us to accept that inference where the record is susceptible of another inference. The burden is on the excepting party to show that he has been harmed. Posell v. Herscovitz, 237 Mass. 513, 516, 517. Commonwealth v. McIntosh, 259 Mass. 388, 391. Exceptions overruled.