Anjou v. Boston Elevated Railway Co.

94 N.E. 386, 208 Mass. 273, 1911 Mass. LEXIS 806

Opinion

Rugg, J.

The plaintiff arrived on one of defendant’s cars on the upper level of the Dudley Street terminal; other passengers arrived oh same car, but it does not appear how many. She waited until the crowd had left the platform, when she inquired of one of defendant’s uniformed employees the direction to another car. He walked along a narrow platform, and she, following a few feet behind him toward the stairway he had indicated, was injured by slipping upon a banana peel. It was described by several who examined it in these terms: it “ felt dry and gritty as if there were dirt upon it,” as if “trampled over a good deal,” as “flattened down, and black in color,” “ every bit of it was black, there wasn’t a particle of yellow ” and as “black, flattened out and gritty.” It was one of the duties of employees of the defendant, of whom there was one at this station all the time, to observe and remove whatever was upon the platform to interfere with the safety of travellers. These might have been found to be the facts.

J. J. Cummings, (K. J. Dixon with him,) for the plaintiff. J. E. Hannigan, for the defendant, submitted a brief.

The inference might have been drawn from the appearance and condition of the banana peel that it had been upon the platform a considerable period of time, in such position that it would have been seen and removed by the employees of the defendant if they had performed their duty. Therefore, there is something on which to base a' conclusion that it was not dropped a moment before by a passenger, and Groddard v. Boston & Maine Railroad, 179 Mass. 52, and Lyons v. Boston Elevated Railway, 204 Mass. 227, are plainly distinguishable. The obligation rested upon the defendant to keep its station reasonably safe for its passengers. It might have been found that the platform was suffered to remain in-such condition as to be a menace to those rightfully walking upon it. Hence there was evidence of negligence on the part of the defendant, which should have been submitted to the jury. MacLaren v. Boston Elevated Railway, 197 Mass. 490. Foster v. Old Colony Street Railway, 182 Mass. 378. Rosen v. Boston, 187 Mass. 245. Kingston v. Boston Elevated Railway, 207 Mass. 457.

In accordance with the terms of the report,

* let the entry be

Judgment for the plaintiff for $1,250 with costs.

The case was tried before Brown, J., who, at the close of the evidence, by agreement of the patties ordered a verdict for the defendant and reported the case to this court for determination, the agreement stating: “ If there was any evidence of negligence on the part of the defendant which should have been submitted to the jury, then judgment shall be entered for the plaintiff for $1,250 with costs of suit. Otherwise, the verdict to stand.”