Opinion
January 3, 1961.
Sturtevant Burr, for the defendant.
Thomas D. Burns, ( William H. Clancy with him,) for the plaintiff.
Exceptions overruled. There was no error in denying a motion to dismiss nor in denying a motion for a directed verdict in this action of tort for personal injuries commenced December 1, 1958. The motion to dismiss was filed and presented to the judge at the time of trial before the introduction of any evidence. It was late under Rule 25 of the Superior Court (1954). It was based on matter not apparent on the face of the record. Graustein v. Boston Maine R.R. 304 Mass. 23, 25. Commissioner of Corps. Taxn. v. Aetna Life Ins. Co. 328 Mass. 404, 409. It raised issues of fact outside the record which were controverted. See Furlong v. Cronan, 305 Mass. 464, 465. It was not offered then or later in the trial as an amendment to the answer and the judge was not obliged to treat it as such. See Desmond v. Boston Elev. Ry. 319 Mass. 13, 16. As to the denial of the motion for a directed verdict it is sufficient to say that the pre-trial order and the evidence warranted the jury in finding that (a) the defendant was in control of the premises concerned including the sprinkler system; (b) the defendant knew that a leak in the sprinkler system caused water to drip, spatter, and form a pool which made the linoleum floor slippery; (c) a reasonable opportunity to repair the leak properly was not availed of; and (d) the plaintiff was injured when she slipped in the "spatters" of water around "the puddle" while carrying a tray of milk containers. The contributory negligence of the plaintiff was a question for the jury.