Benson v. Manhattan Railway Co.

31 Misc. 723, 65 N.Y.S. 271

Opinion

O’Gorman, J.

Plaintiff sued to recover damages for personal injuries sustained in consequence of slipping upon a banana peel lying upon the stairway of defendant’s station. The accident occurred in midday, and the case is .without a scintilla of evidence as to how long the banana peel was upon the stairway previous to the occurrence. To hold the defendant liable, under such proof, is to make the defendant an insurer of the safety of its passengers. This is not the law. It does not appear that the defendant had notice of the existence of this obstruction upon the stairway, nor that it had time or opportunity to remove it. Eor all that appears to the contrary, it might have been- thrown there by some other passenger immediately previous to the plaintiff stepping upon it. The accident itself raises no presumption unfavorable to the defendant. No negligence on defendant’s part having been shown, it was error to deny the defendant’s motion to dismiss the complaint, and the judgment should be reversed.

Beekmah, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.