Negligence, In a retail store, Contributory. If the proprietor of a retail drug store maintaining a soda counter has placed an upright weighing machine so near the entrance of the store that its low base or platform is in the path of customers passing in and out and a woman turning from the soda counter to pass out of the store stumbles over the base of the weighing machine and is injured, in an action against the proprietor for her injuries thus caused it can be found that the defendant was negligent.
In an action by a woman against the proprietor of a retail drug store for personal injuries caused by the plaintiff stumbling over the base of a weighing machine when she had turned from a soda counter to pass out of the store, under St. 1914, c. 553, it is a question for the jury, with the burden of proof on the defendant, whether the presumption of the plaintiff's due care has been overcome by all the evidence.
BRALEY, J.
The plaintiff was lawfully in the store, and while there the defendant owed her the duty to use ordinary care to keep the premises in a reasonably safe condition for her use as a customer. Ginns v. C.T. Sherer Co. 219 Mass. 18.
It sold soda, drugs and the articles usually dealt in by the proprietor of a retail drug store, and the jury could find from the evidence, which included the plan, that when viewed in connection with the volume of patronage as described by her the weighing machine, over which the plaintiff stumbled and fell as she turned from the soda counter to pass out of the store, had been placed too near the entrance to permit customers to make their exit safely, and that the defendant in the exercise of due care should have discovered this probable danger and removed the machine. While the case is close, we cannot say as matter of law that there was no evidence for the jury of the defendant's negligence. Ginns v. C.T. Sherer Co., supra. Bennett v. Jordan Marsh Co. 216 Mass. 550.
It is further contended that the plaintiff was negligent. But under the St. of 1914, c. 553, this question was for the jury, who were to determine whether the presumption of her due care had been overcome by all the evidence, with the burden of proof on the defendant.
The exceptions to the admission of evidence having been waived, and the exceptions to the order of the court submitting certain questions to the jury not having been argued, we come to the exceptions to the refusal to give the defendant's requests. The first, second and sixth requests were denied rightly for reasons previously stated, while the fourth, fifth, seventh and eighth requests in so far as applicable were fully and accurately covered by the instructions. Graham v. Middleby, 185 Mass. 349. By the terms of the report the plaintiff is to have judgment for the amount stipulated.
So ordered.