
    ROSE ALMA DROLETTE vs. W. T. GRANT CO. ARMAND DROLETTE vs. SAME.
    Essex, ss. Northern District Central District Court of Northern Essex
    Argued December 8, 1941
    Opinion filed January 19, 1942.
    Present: J ones, P. J., Pettingell & Sullivan, JJ.
    
    
      
      G. Karelite, for the Plaintiffs.
    
      Dymsea $ McCabe, for the Defendant.
   Sullivan, J.

These are two actions in tort that come to this division in the form of a consolidated report, wherein the first action is for personal injuries received by the female plaintiff and the second action is by her husband for consequential damages.

The evidence tended to show that the female plaintiff went to the defendant’s store at Haverhill on July 1, 1940 and purchased a dress and when on her way out slipped and fell on the floor receiving the injuries alleged; that the floor walker helped her regain her feet and escorted her to the office; that upon regaining her feet she saw a skid mark on the floor, where she had fallen, about three feet long; that she had dirt and oil on her hands, that there was a smudge on her right knee and an odor of oil; upon leaving the store, about ten minutes after the accident, she saw some small bubbles where she had fallen and nowhere else; that the plaintiff was ill about three weeks; that medical attention was furnished to her as well as assistance in conducting her household obligations. There was no evidence given as to where the oil or oily small bubbles on the floor came from. The defendant offered no evidence.

There were twelve requests for rulings filed by the defendant in each case, a total of twenty-four requests, all of which were refused by the trial judge. There were findings for Rose Alma Drolette in the sum of one hundred twenty-five dollars and for Armand Drolette in the sum of seventy-one dollars.

The court in denying the defendant’s requests for rulings states they were not pertinent to the facts as found and that the female plaintiff slipped and fell on the floor, that there was a skid mark three feet long where she had fallen; that there were small bubbles on the floor of an oily substance that made the floor dangerously slippery; that there were oily smudges on her hands and knees and that there was no evidence from where the oil or oil bubbles came from. '

The report is alleged to contain all the evidence material to the issue involved.

The female plaintiff in order to prevail in this action must prove that the premises of the defendant were in a defective condition and such condition existed for a sufficient length of time that in the exercise of due care could have been detected so as to prevent the accident. The defendant owed it to the plaintiff to keep its premises in a reasonably safe condition because of its invitation to trade therein.

As to the question of determining the negligence of the defendant the evidence demonstrates that the plaintiff slipped on the floor because of the presence of a foreign substance, an oily substance that soiled her clothes and portion of her body; that it was a smudge and that oily bubbles were present.

There is no evidence as to the manner in which the foreign substance happened on the floor, whether through negligence of the defendant, or by someone whose actions the defendant would be liable for. There is no evidence as to the length of time such alleged defective condition existed in order that the defendant in making such discovery, could remedy the same. The trial court has found that there was no evidence as to the cause of the presence of the oily substance. There is no evidence that the floor had'been oiled by the defendant or by any person for whose act it would be liable. Some customer who was on the premises before the plaintiff’s visit may have tracked in or dropped the foreign substance upon which the plaintiff slipped. How such substance came is a matter of conjecture and leaves the situation in the realm of uncertainty. The plaintiff has failed to maintain the burden of showing that the defendant is responsible for the alleged defective condition of the floor. The presence of the oily substance may have been caused by a stranger. Todd vs. Winslow, 278 Mass. 588, 591.

In the above case the plaintiff, a business invitee, slipped on the defendant’s step causing her injuries. The court found that there was no evidence of the length of time the soap upon which the plaintiff slipped had been on the stairway or who had placed it there. It may have been dropped by a tenant. The inference that it was caused by a person for whose act the defendant was liable is at least as strong as any inference that it was caused by the defendant. Tariff vs. S. S. Kresge Co., 299 Mass. 129, 130.

In Mascary vs. Boston Elevated Ry. Co., 258 Mass. 524, the plaintiff slipped on a banana peel on the stairs of which the defendant was in control. The court stated that the peel may have been dropped a moment before by a stranger or may have come on the stairs without fault on the part of the defendant. See cases cited at page 525.

The evidence does not show that the oil was on the floor so long that it should have been discovered and removed by an employee of the defendant. Sisson vs. Boston Elevated Ry. Co., 277 Mass. 431.

The plaintiff slipped on an apple on the defendant’s stairway which substance was “black and dirty and covered with grime.” The court found that the evidence did not warrant a finding that the substance on which the plaintiff slipped had been on the step so long that it should have been discovered and removed by the employee of the defendant who had the duty to keep the stairway clean.

Bequest No. 3. “There is insufficient evidence to warrant the court in finding that the defendant was negligent” and Bequest No. 4. “ There is sufficient evidence to warrant the court in finding that it is a matter of speculation and conjecture as to the length of time that the defendant’s floor was defective, if it was defective prior to the plaintiff’s fall thereon,” should have been given. Because of the plaintiff’s failure to maintain its burden of proving the defendant’s negligence there was prejudicial error in denying them.

Because the finding for the plaintiff must be vacated, and finding for the defendant is ordered it is unnecessary to discuss the other requests.

As the finding for the female plaintiff is vacated, it follows that the plaintiff, husband, cannot recover and the finding for him is likewise vacated. A finding for the defendant in his case is ordered.  