JOSEPHINE MASCARY vs. BOSTON ELEVATED RAILWAY COMPANY.
Negligence, Street railway: slippery substance on station step. Evidence, Matter of conjecture.
A woman passenger in a subway station of a street railway cannot recover in an action of tort against the street railway company for personal injuries received when she slipped upon a banana peel upon a stairway, where the only evidence as to the presence of the banana peel upon the stairway was that her husband, going forthwith to the place where she fell, found there a part of a banana skin, "dark or black as tar, and dry, a little dry skin, very black," and "it was smoothed down; . . . soft . . . as if something had been pressed on it."
TORT for personal injuries. Writ dated September 26, 1923. In the Superior Court, the action was tried before Broadhurst, J. Material evidence is stated in the opinion. The jury found for the plaintiff in the sum of $500 but, before the verdict was recorded, the judge reserved leave under G.L. c. 231, ยง 120, to enter a verdict for the defendant. Thereafter a verdict for the defendant was entered and the judge reported the action to this court for determination.
S. P. Sears, (E. K. Nash, with him,) for the defendant.
E. Masters, for the plaintiff.
RUGG, C.J. There was evidence tending to show, in its aspect most favorable to the plaintiff, that, while descending a flight of stairs leading to the Central Square station of the defendant, she slipped and fell, and immediately thereafter a piece of banana peel was found underneath her shoe; that her husband, going forthwith to the place where she fell, found there a part of a banana skin, "dark or black as tar, and dry, a little dry skin, very black," and "it was smoothed down; . . . soft . . . as if something had been pressed on it." The defendant owned and controlled the stairway and it was open to the public.
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There was no evidence of negligence on the part of the defendant. The banana skin may have been dropped a moment before by a stranger to the defendant, or have come upon the stair without fault of the defendant. The case is governed by numerous decisions. Goddard v. Boston & Maine Railroad, 179 Mass. 52. Pearson v. Director General of Railroads, 245 Mass. 158, 162, 163. O'Neill v. Boston Elevated Railway, 248 Mass. 362, and cases there collected. Sweatland v. Springfield Public Market, Inc. 247 Mass. 268. Towne v. Waltham Watch Co. 247 Mass. 390. O'Brien v. Boston Elevated Railway, 250 Mass. 192. O'Leary v. Smith, 255 Mass. 121. Additional factors tending to show negligence of the defendant present in Anjou v. Boston Elevated Railway, 208 Mass. 273, distinguish that case from the case at bar.
The motion of the defendant for a directed verdict in its favor ought to have been granted. In accordance with the terms of the report, the entry may be
Judgment for defendant.