Bannon v. Peerless Weighing & Vending Machine Corp.

Wilkins, J.

This is an action of tort for personal injuries sustained as a result of alleged negligent installation and maintenance of a weighing machine in a store vestibule in Somerville. The judge at the conclusion of the evidence granted the defendant’s motion for a directed verdict subject to the plaintiff’s exception.

Although the record is somewhat meager, there was evidence from which the jury could have found the following: On May 9, 1942, the plaintiff and one O’Connor were in the vestibule for the purpose of weighing themselves on a commercial weighing machine, which was apparently of conventional style with a clock face. O’Connor weighed himself first. As the plaintiff stepped onto the scale, an unknown young man with pennies in his hand entered for the same purpose and stood facing the plaintiff to the plaintiff’s left. The plaintiff weighed himself, stepped off the scale, lighted a cigarette, and was half way out when O’Connor' called, “Look out.” The plaintiff turned and saw the machine tipping toward him. He put out his hand, caught it with the tip of his fingers, and the weight of the falling machine carried his hand through a window, taking off the top of a finger. The machine had been “bumped” by the unknown young man, who, still unweighed, “bolted” for a bus in response to a call, “Get the bus” or “Here it comes,” from a companion oh the sidewalk. The defend *609 ant owned the machine, and on September 2, 1941, had placed it in position on the floor of the vestibule which sloped one and five eighths inches in a depth of three feet nine inches. The vestibule was seven feet two inches wide in front and six feet eleven inches wide in back, and led to two doors to the store which were on either side of a mullion in front of which was the base of the weighing machine. The doors were recessed four or five inches from the face of the mullion, and the face of the scale protruded on either side of the mullion. The machine weighed two hundred fifty pounds, distributed as follows: base with platform and levers'seventy pounds; column ninety pounds; head, door, and mechanism ninety pounds.. The height was sixty-eight and one half inches. There were two front rollers less than an inch wide and slightly more than an inch in diameter. The machine was not fastened to the building, and a pressure of twenty-seven pounds applied horizontally against the center of the head at the outside would start the machine out of equilibrium, and if continued to be applied, the machine would continue to move.

The plaintiff was an invitee to whom the defendant owed the familiar duty to use ordinary care to keep the machine as installed in reasonably safe condition for his use. Parker v. Jordan Marsh Co. 310 Mass. 227, 229 . This duty included the anticipation of reasonably foreseeable acts of third persons which might cause injury to the plaintiff. Norton v. Chandler & Co. Inc. 221 Mass. 99, 102 . Mitchell v. Lonergan, 285 Mass. 266, 270 . Promisel v. Hotels Statler Corp. 286 Mass. 15, 17 . The jury could have found that the defendant was negligent in placing the machine without adequate fastening on a slope in a position where it could and might be knocked over. See Nye v. Louis K. Liggett Co. 224 Mass. 401, 404 ; Lombardi v. F. W. Woolworth Co. 303 Mass. 417, 419 . While the unknown young man might also have been found negligent, it could have been further found that such negligence was foreseeable and did not supersede that of the defendant as an effective factor in causing harm to the plaintiff. Am. Law Inst. Restatement: Torts, § 447. For this reason cases such as Sterns v. High *610 land Hotel Co. 307 Mass. 90 , and Waugh v. Great Atlantic & Pacific Tea Co. 317 Mass. 230 , relied upon by the defendant, are distinguishable. We think that there was error in the direction of a verdict for the defendant.

Exceptions sustained.