
    John Jennings vs. Eugene Tompkins.
    Suffolk.
    November 22, 1901.
    January 3, 1902.
    Present: Holmes, C. J., Knowlton, Lathrop, Hammond, & Loring, JJ.
    
      Nuisance.
    
    The projection of a nail three sixteenths of an inch on a wooden step in the aisle' of the gallery of a theatre, by reason of the board of the step being worn down by use, is not a defect for whicli the person in control of the theatre is liable to one injured by a fall caused by his heel catching on the protruding nail.
    Tort for injuries by reason of a fall caused by the plaintiff catching his heel on a nail protruding from a step in an aisle of the gallery of a theatre under the management and control of the defendant. Writ dated May 27, 1899.
    In the Superior Court, G-askill, J. directed a verdict for the defendant; and the plaintiff alleged exceptions.
    
      S. S. Tyng, for the plaintiff.
    
      J. Lowell & S. H. Smith, for the defendant.
   Loring, J.

The plaintiff in this case had purchased a seat in the fourth row of the gallery in the defendant’s theatre, and while walking down the wooden steps of the aisle to go out, he fell and seriously injured his knee. He testified that he felt the stair give slightly, that his heel caught and that he fell face downwards. The plaintiff also introduced evidence that the tread of the stair in question was made of a seven eighths inch board; that it did not project beyond the riser on which it rested; that it was worn thin by use, and that there was a nail protruding about one sixteenth of an inch; that the board gave a little when stepped on, and that when a person stepped on the tread, the nail stuck up about three sixteenths of an inch. We think that a jury would be authorized in finding that the plaintiff’s heel caught on this nail.

This case, therefore, presents the general question how far a boai’d can be allowed to be worn down by use without its being a defect as against persons who have a right to use it. The line must be drawn somewhere, and it is necessarily to some extent an arbitrary matter where it is to be drawn. We are of opinion that if the board is worn so that a nail projects three sixteenths of an inch there is not a defect.

Exceptions overruled.  