MURRAY ESAU vs. TRUSTEES OF NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

RONAN, J. The plaintiff on the afternoon of February 12, 1946, travelled along the platform or walk leading to the Weymouth station of the defendants' railroad where he procured a time table, as he was planning a trip to Boston on the next day. He stood in the station a few minutes reading the time table, and then left the station intending to retrace his steps and go to the street. As he was walking along the platform a train which had stopped at the station started up and was passing by him when his left toe struck the edge of the planking, which constitutes a part of the platform and spans a brook, causing him to fall in such a manner that both of his feet were crushed by the train. The plaintiff had a verdict.

The defendants excepted to the denial of a motion for a directed verdict, and contend that the evidence was insufficient to warrant a finding of negligence upon their part and that the plaintiff as matter of law was guilty of contributory negligence.

Considering the evidence in the light most favorable to the plaintiff, we summarize the findings which could be warrantably made by the jury. The plaintiff had approached the station platform from Quincy Avenue and travelled easterly along the walk or platform, which was about eight feet wide and had a surface of stone dust, except where the surface was of planking over a brook for a distance of thirty feet. He left the station shortly after obtaining the time table and was travelling in a westerly direction along the platform, which was located south of the tracks, when his left toe struck the edge of the planking causing him to fall so that his feet were crushed by the train, which had started up soon after he had left the station and was proceeding in a westerly direction on his right at the time of the accident. The surface of the center of the stone dust platform or walk was flush with the easterly

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side of the planking, but there was a depression between the inside or southerly part of this walk and the adjoining planking. There was another depression between the outside or northerly part of the walk and the planking, which extended in from the outside or track side of the walk for a distance of two feet or more. This last mentioned depression with which we are now concerned was almost eighteen inches wide, and looked like a place where "the dirt was gouged away like it had been washed out." For a number of years water would settle in this place after a storm. The edge of the planking at this place projected "a very good one and one half or one and three quarters inches" above the stone dust walk.

The plaintiff was upon the premises at the implied invitation of the defendants with respect to the transaction of a matter in which both parties had a mutual interest. He was a business visitor travelling along the platform which had been constructed and maintained for the use of those who came upon the premises to deal with the defendants with reference to a matter connected with the commercial enterprise conducted there by the defendants. Bradford v. Boston & Maine Railroad, 160 Mass. 392. Murr v. Boston & Maine Railroad, 204 Mass. 74. Levesque v. American Railway Express Co. 258 Mass. 315. Fournier v. New York, New Haven & Hartford Railroad, 286 Mass. 7. Ward v. Boston Terminal Co. 286 Mass. 517.

The defendants owed the plaintiff the duty of exercising care to keep the premises in a reasonably safe condition for his use. The depression extended in from the northerly edge of the platform and was in close proximity to the tracks. The degree of care that the defendants were bound to use was comensurate with the dangers that might arise from the absence of such care. Whether the defendants failed to exercise the appropriate degree of care in permitting the platform or walk to be and remain in the condition shown by the testimony was an issue of fact which was properly submitted to the jury. The statutory obligation of cities and towns with reference to the safety of their public ways for the benefit of travellers is certainly no

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higher than the care owed by a common carrier to one lawfully and rightly upon its premises, and yet cities and towns have been held liable for a breach of this statutory duty when the defect in the way did not project any higher above the way than did the planking in the instant case. Redford v. Woburn, 176 Mass. 520. Thomas v. Winthrop, 222 Mass. 456. George v. Malden, 274 Mass. 606. Sears v. Greenfield, 287 Mass. 445, 447. Smith v. Fall River, 295 Mass. 88. Callagy v. Boston, 297 Mass. 53, 54.

The defendants, however, contend that according to the plaintiff's testimony he was travelling along the platform two and one half to three feet from the outside or northerly edge of this eight foot platform and that, as some three feet or more of the center of the platform was flush with the planking, the plaintiff could not have been injured by the alleged depression, which did not extend in that far from the northerly edge of the platform, and that this must be especially true since it was the stubbing of the left toe that caused him to fall. In other words, the contention is that there was no causal connection between the depression and the accident. The distances given by the plaintiff with reference to the outside of the platform as he travelled along were not exact measurements but were estimates, and could be so understood by the jury who were to pass on their accuracy. Fowler v. South End Amusement Co. 299 Mass. 317. Bresnahan v. Proman, 312 Mass. 97. The plaintiff testified that he tripped when his toe caught "on the plank that was sticking up." The jury also had the testimony of a police officer, who arrived shortly after the accident and who observed a scuff mark which was six inches on the stone dust platform and ended at the planking, that the depression was right where this mark was. The evidence was ample to show a causal connection between the projecting plank and the plaintiff's injury. Marquis v. John Nesmith Real Estate Co. 300 Mass. 203, 206. Braimaster v. Wolf, 320 Mass. 620.

The plaintiff could assume to a reasonable extent that the platform was in a proper condition for his use. He could walk along in the ordinary manner looking straight ahead as the jury could find he did. They could also find that nothing

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had come to his attention which should have caused him to realize that the continuance of his journey might be fraught with danger. His conduct fell far short of being negligent as matter of law, and whether it was as matter of fact was for the jury to say. Frost v. McCarthy, 200 Mass. 445. McGrath v. American Express Co. 219 Mass. 314. Rice v. Rosenberg, 266 Mass. 520. Klein v. Boston Elevated Railway, 293 Mass. 238. Silver v. Cushner, 300 Mass. 583. Mello v. Peabody, 305 Mass. 373. Reagan v. Belmont, 316 Mass. 467. Hayes v. Boston Fish Market Corp. 319 Mass. 556.

The defendants excepted to the denial of their ninth request that a difference in level between the stone dust walk and the planking of one inch or less was not evidence of negligence of the defendants. The judge had instructed the jury in accordance with another request that a difference of three quarters of an inch was not evidence of negligence. The jury must have found that the difference was more than three quarters of an inch. The testimony of one of the defendants' witnesses that the difference was one half of an inch becomes unimportant. The only other witness called by the defendants who testified to the difference placed it at a little more than an inch, and all of the plaintiff's witnesses who testified to the difference placed it at a higher figure. Consequently there was no evidence upon which this request could be based, and there was no error in its denial. The seventh and eighth requests were in the same form as the ninth except the difference of level was stated in one as less than two inches and in the other as one and one half inches or less. It could not be ruled, as shown by the defective highway decisions already cited, that an elevation of anything less than two inches or one of one and one half inches was not evidence of negligence when considered with the other evidence, showing the location of the elevation, the size and age of the adjoining depression, and the large number of people who daily used this station platform. Furthermore the judge was not required to give requests which single out a small fragment of the entire evidence submitted upon one of the main issues on trial when the

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evidence selected is itself not decisive of the case. Gregory v. Maine Central Railroad, 317 Mass. 636, 641-642.

The defendants' exceptions are overruled and the plaintiff's exceptions are dismissed.

So ordered.