JOSEPH CORBETT vs. HOWARD C. DAVIS.

JENNIE A. ROGERS vs. UNITED MARKETS, INC.

310 Mass. 829

November 13, 1941

Order dismissing report affirmed. This action of tort for negligence was brought in a District Court to recover compensation for personal injuries sustained by the plaintiff. The trial judge found for the plaintiff and denied all the defendant's requests for rulings. By these requests the defendant sought, in substance, rulings that the evidence did not warrant a finding of negligence on the part of the defendant, but required a finding that the plaintiff was guilty of contributory negligence. A report to the Appellate Division was dismissed, and the defendant appealed to this court. The evidence clearly warranted findings that the plaintiff was in the defendant's store, or market, as a business visitor, for the purpose of buying bread; that, when the plaintiff was leaving the premises, she was injured by being struck by a swinging door at the entrance; and that this door had been propped back but was released by a man who was "stooping down" at the door as the plaintiff approached. There was evidence that this man "wore a white coat wore no hat . . . and that the plaintiff had seen this same man in and about the store on previous occasions when she had visited the store." From this evidence, in connection with the nature of the premises and the position and act of the man described, an inference was warranted that he was a servant of the defendant acting within the scope of his employment in releasing the door. See Heina v. Broadway Fruit Market, Inc. 304 Mass. 608 , 609-610. Upon all the evidence it could have been found that the defendant was negligent. See Norton v. Chandler & Co. Inc. 221 Mass. 99 ; Nersiff v. Worcester County Institution for Savings, 264 Mass. 228 ; Promisel v. Hotels Statler Corp. 286 Mass. 15 . Callaghan v. R. H. White Co. 303 Mass. 413 , is distinguishable. A finding that the plaintiff was guilty of contributory negligence was not required as matter of law.