Burns v. Tedeschi's Super Markets, Inc. , 347 Mass. 773 ( 1964 )

Exceptions overruled. There was no error in allowing this case to go to the jury or in denying a motion for entry of a verdict for the defendant under leave reserved. The jury could have found that Mildred Bums (the plaintiff), a customer in the defendant’s supermarket, walked from an aisle between display racks into the center aisle to go around a rack. As she did this she tripped on a box placed on the floor at the end of the rack. The rack was about six feet high. The box was between three and four inches high and was in use to display mirrors that were so placed as to rest at an angle against the end of the rack. The sides of the box were either flush with the sides of the rack or recessed a little. The box extended about two and one-half feet from the end of the rack into the center aisle. The mirrors were of varying heights, from two and one-half feet to four or five feet. The box was designed to hold three rows of mirrors. On the plaintiff’s testimony the jury could have found that there were only a few mirrors in the box and that they were at the back “in the middle.” The store manager testified that the middle row was full, with ten mirrors, and there were four or five mirrors in the two side rows. There were floor displays at the ends of seven other racks. The plaintiff did not see the box or the mirrors before the accident. The jury could have found that customers, acting reasonably in the observation and selection of merchandise, might not see the box before coming to the end of the rack. They could have found therefore that placing the box in this position was a breach of the defendant’s duty and that the plaintiff was not guilty of contributory negligence. See Robicheau v. Supreme Mkts. Inc. 333 Mass. 608.