BENNETT v. COHEN, Mass., Judgment, Law, casemine.com

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Attorney(S)

F.E. Smith, for the defendants. H.S.R. Buvfinton R.A. Bogle, for the plaintiff.

Judges

DONAHUE, J.

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Smart Summary

Factual and Procedural Background

The plaintiff was walking on a sidewalk in the shopping district of Fall River at about six o'clock on an October evening when she stepped on a tomato, slipped and was injured. The fall occurred in front of a market owned and operated by the defendants, who maintained movable sidewalk stands for the display and sale of fruit and vegetables. On the evening in question, employees of the defendants removed certain stands from the sidewalk into the market about six or seven minutes before the plaintiff arrived. The employees carried the stands without removing the piled fruit and vegetables, and some contents, including tomatoes, fell onto the sidewalk.

Procedurally, the action was a tort case (writ dated March 4, 1938) tried in the Superior Court before Judge Broadhurst. The judge denied the defendants' motion that a verdict be ordered for them. A jury returned a verdict for the plaintiff in the sum of $3,550. The defendants alleged exceptions and the case was submitted on briefs to the Supreme Judicial Court of Massachusetts. The opinion was delivered by Donahue, J., on January 28, 1942 (hearing Oct. 28, 1941).

Legal Issues Presented

Whether the evidence warranted a finding that the defendants' employees were negligent in moving the stands and that such negligence caused the tomato being on the sidewalk.
Whether the plaintiff was required to exclude other possible causes for the presence of the tomato (e.g., the act of a customer or other person) in order to establish liability.
Whether the trial judge's admission of testimony (that an employee "cleaned up" the tomato) without contemporaneously limiting its use was prejudicial, or whether any such error was cured by instructions in the judge's later charge to the jury.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jennings v. First National Stores, Inc. 295 Mass. 117	Support for finding negligence where use of sidewalk stands with piled produce made falling of contents likely.	Used to justify that removal of stands with piled produce, which caused contents to fall, warranted a finding of employee negligence.
Heina v. Broadway Fruit Market, Inc. 304 Mass. 608, 610	Similar authority on liability where display and movement of piled produce leads to hazards on sidewalk; cited for both negligence and causation principles.	Relied upon to support both the conclusion of negligence and that the tomato likely came upon the sidewalk through defendants' employees.
Sweatland v. Springfield Public Market, Inc. 247 Mass. 268, 269	Distinguishes situations where it is equally likely that a hazard arose from other persons rather than the defendant's employees.	Compared to show this case was not one where alternative causes were equally likely.
Beach v. S.S. Kresge Co. 302 Mass. 544, 546	Authority on evaluating competing hypotheses for cause of an injury.	Cited to support that the plaintiff need not show with absolute certainty that defendants' negligence caused the injury.
Bigwood v. Boston Northern Street Railway, 209 Mass. 345, 348	Statement that plaintiff need only prove causation by a preponderance, not exclude all other possibilities.	Applied to explain the standard of proof required to establish that defendants' negligence caused the plaintiff's injury.
Crisafi v. Sells Floto Circus, 262 Mass. 120, 122	Precedent on burden of proof and causation by preponderance of evidence.	Used to reinforce that the plaintiff's burden is to show by preponderance that negligence of defendant caused the injury.
Rocha v. Alber, 302 Mass. 155, 157-158	Authority concerning causation and inferences from circumstantial evidence.	Applied to support inference that the tomato probably came from defendants' employees rather than from others.
Agnew v. Franks, 255 Mass. 539, 541	Case law on weighing probabilities when attributing cause to defendant's actions.	Cited to show that evidence indicated greater likelihood the tomato resulted from defendants' employees' negligence.
DeCunto v. Broadway Savings Bank, 306 Mass. 119, 120, 121	Principles on probability and causation in negligence cases.	Used to support the court's conclusion that the evidence indicated a greater likelihood of defendant-caused harm.
Todd v. Boston Elevated Railway, 208 Mass. 505, 506	Authority that an improperly limited admission of evidence can be cured by an explicit jury instruction explaining its proper use.	Cited to support that any insufficient limitation at time of admission was cured by the judge's later charge.
McKechnie v. Boston Elevated Railway, 224 Mass. 36, 38	Similar rule that an erroneous admission may be rendered harmless by clear limiting instructions in the charge.	Relied upon to conclude the judge's charge adequately directed the jury in how to use the testimony about the tomato being "cleaned up."

Court's Reasoning and Analysis

The court proceeded in two main analytical steps. First, it examined the evidence about the defendants' practice and the events immediately preceding the plaintiff's fall. The defendants maintained movable sidewalk stands with piled fruit and vegetables and their employees moved such stands into the market shortly before the plaintiff arrived. The employees removed the stands without unloading the piled produce, and some of the produce, including tomatoes, fell onto the sidewalk. The court concluded that this evidence warranted a finding of negligence by the defendants' employees because the removal of piled stands was likely to cause contents to fall, and it in fact did. The court relied on prior authority (including Jennings and Heina) to support the conclusion that the conduct created a foreseeable hazard and thus supported liability.

Second, the court addressed causation and the burden of proof. It rejected a standard requiring the plaintiff to exclude all other possible sources of the tomato (for example, a customer or other passerby). Instead, the court applied the preponderance standard: it was sufficient that the evidence made it more likely than not that the tomato causing the fall came from the defendants' employees. The court distinguished this case from those where alternative causes are equally likely, and cited authorities (such as Bigwood, Crisafi, Rocha, and others) to support that inference from the circumstantial evidence was permissible and adequate to establish causation.

Regarding the contested testimony: a plaintiff's witness, when asked if he saw anyone "sweep up" the tomato, said an employee came and "cleaned . . . up" the tomato. The defendants excepted to the question and moved to strike the answer; the judge denied the motion but stated at the time that the evidence was admitted solely as bearing on the question of knowledge of the presence of a tomato on the sidewalk. Later, in a detailed charge to the jury (to which the defendants took no exception), the judge instructed that the testimony was not evidence that the tomato came upon the sidewalk by defendants' negligence and that it was admitted only to prove that there was in fact a tomato on the sidewalk in front of the market. The court held that even if the initial limitation had been inadequate at the time of admission, the later explicit instructions in the charge cured any potential error, citing Todd and McKechnie.

Holding and Implications

Holding: The defendants' exceptions are overruled.

Implications: The court sustained the jury's verdict for the plaintiff (a verdict of $3,550 is part of the trial record) by rejecting the defendants' exceptions. The decision rests on (1) a finding that the evidence warranted an inference of negligence in moving piled produce from the sidewalk, (2) the application of the preponderance standard for causation rather than a requirement to exclude all other possibilities, and (3) a determination that any possible error in limiting testimony at the time of admission was remedied by the judge's subsequent charge. The opinion does not announce a new rule of law beyond the application of existing principles cited in the opinion.

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NORA BENNETT vs. CHARLES COHEN another.

Negligence, Store, Use of way, Slippery substance. Evidence, Presumptions and burden of proof. Practice, Civil, Exceptions: whether error harmful. Error, Whether harmful.

Evidence, that, while employees of a market were moving stands "piled up" with fruit and vegetables from a public sidewalk into the market, some of their contents, including tomatoes, fell to the sidewalk a few minutes before a pedestrian slipped on a tomato in front of the market and was injured, warranted a finding that such tomato came upon the sidewalk through negligence of the employees. A failure by a trial judge to limit properly the use of certain testimony at the time of its admission was cured by explicit statements to the jury in the charge.

DONAHUE, J.

The plaintiff, while walking along a sidewalk in the shopping district of the city of Fall River, at about six o'clock on an October evening, stepped on a tomato and slipped and fell, receiving injury. The place of her fall was in front of a market owned and operated by the defendants. During the day the defendants maintained on the sidewalk several movable stands for the display and sale of fruit and vegetables. On the evening in question, employees of the defendants had removed certain stands from the sidewalk to the inside of the market six or seven minutes before the plaintiff came along. This they did without removing from the stands any of the fruit or vegetables which were "piled up" thereon. As the employees were carrying the stands, some of their contents, including tomatoes, fell upon the sidewalk.

1. It does not appear that the defendants' use of the sidewalk stands for the display of fruit and vegetables was a violation of any municipal ordinance or regulation. There was evidence, however, that the removal of the stands, with fruit and vegetables "piled" thereon, would be likely to result in some of their contents falling on the sidewalk and it further appeared that this in fact occurred. A finding that the employees of the defendants were negligent was warranted. Jennings v. First National Stores, Inc. 295 Mass. 117. Heina v. Broadway Fruit Market, Inc. 304 Mass. 608, 610.

A finding was also warranted that the tomato that caused the plaintiff's injury had come upon the sidewalk through negligence of the defendants' employees. This is not a case where it is just as likely that the tomato that caused the plaintiff's fall was on the sidewalk through the act of a customer of the defendants or of some other person, as that it was there by the act of the defendants' employees. Compare Sweatland v. Springfield Public Market, Inc. 247 Mass. 268, 269. Beach v. S.S. Kresge Co. 302 Mass. 544, 546. The plaintiff was not required to exclude all possibilities other than negligence for which the defendants were responsible, as the cause of the plaintiff's injury. It is enough if it appeared by a preponderance of the evidence that the plaintiff's injury occurred because of negligence for which the defendants were responsible. Bigwood v. Boston Northern Street Railway, 209 Mass. 345, 348. Crisafi v. Sells Floto Circus, 262 Mass. 120, 122. Rocha v. Alber, 302 Mass. 155, 157-158. The evidence here indicates a greater likelihood that the tomato, which caused the plaintiff's fall, came upon the sidewalk through negligence of the defendants' employees for which the defendants were liable than from a cause for which the defendants were not responsible. Agnew v. Franks, 255 Mass. 539, 541. Heina v. Broadway Fruit Market, Inc. 304 Mass. 608, 610. DeCunto v. Broadway Savings Bank, 306 Mass. 119, 120, 121.

2. A witness called by the plaintiff was asked by her counsel if he saw anyone "sweep up" the tomato that had caused the plaintiff's fall, and the witness answered in effect that an employee of the defendants came from the market and "cleaned . . . up" the tomato. The defendants seasonably excepted to the question and to the denial by the judge of their motion to strike out the answer. The judge at that time stated that the evidence was admitted "as bearing only on the question of knowledge on the part of the defendants, through some agent, of the presence of this tomato on the sidewalk." Later in his charge to the jury the judge instructed them at considerable length as to the effect that could be given to this testimony. He said, in substance, that the testimony objected to was not evidence that the tomato came upon the sidewalk through the negligence or any fault of the defendants or of anybody employed by them, and that the evidence was admitted solely on the question whether there was in fact a tomato on the sidewalk in front of the defendants' market. If it be assumed that the limitation, by the judge, as to the use of the testimony excepted to, was not adequately stated at the time when the evidence was introduced, the charge, to which the defendants took no exception, forcibly stated the use that the jury could properly make of the evidence in question. See Todd v. Boston Elevated Railway, 208 Mass. 505, 506; McKechnie v. Boston Elevated Railway, 224 Mass. 36, 38.

Exceptions overruled.

BENNETT v. COHEN