Fournier v. New York, N.H.&H.R. Co.

• Decision Date: 28 March 1934
• Citation: 286 Mass. 7,189 N.E. 574
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FOURNIER v. NEW YORK, N. H. & H. R. CO.

286 Mass. 7

189 N.E. 574

FOURNIER

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

March 28, 1934.

Appeal from Appellate Division of District Court, Southern District; J. Edward Lajoie, Special Judge.

Action in tort by Idola Fournier against New York, New Haven & Hartford Railroad Company.Finding of district court for plaintiff in the sum of $226 was, on report to the Appellate Division, reversed and judgment was ordered for the defendant, and the plaintiff appeals.

Order of Appellate Division reversed and judgment entered for plaintiff on finding of district court.

L. Shabshelowitz, of Fall River, for appellant.

H. Lawlor, of Boston, for appellee.

PIERCE, Justice.

This is an action of tort to recover damages alleged to have been sustained by the plaintiff because of the negligence of the defendant.The case was heard in the District Court, and a finding was entered for the plaintiff.The judge reported the case to the Appellate Division for determination, and that court reversed the finding of the District Court and ordered judgment for the defendant.From that decision the case comes to this court on appeal.

The report of the judge states: There was evidence that on August 9, 1932, the plaintiff went to the Union Station, in Providence, Rhode Island, by appointment, for the purpose of meeting a passenger on an incoming train from Bridgeport, Connecticut, that he intended to convey this person from Providence to Fall River in his automobile.He waited on the station premises for the arrival of two trains from Bridgeport, the first at 11:55 A. M. and the second at 1:20 P. M.The expected passenger was on neither train.After the arrival of the second train the plaintiff proceeded to leave the station premises through the stairway leading to a subway which gave access to the street.This stairway led from the main concurse of the station to the subway, was six to seven feet wide, and consisted of three flights of steps with a platform between each two flights.While descending the stairway the plaintiff slipped upon an apple core he did not see on the second or third step of the lower portion of the stairway, fell, and received the injuries for which he seeks compensation.The apple core was ‘crushed,’‘dirty,’‘stuck to the step,’ and ‘had the appearance of having been stepped on.’There was further evidence that a core had been thrown in the direction of the steps by an employee of the defendant at about noon and that the accident to the plaintiff occurred ‘shortly after 1:20 P. M.’

There was evidence for the defendant tending to prove that a janitor swept the concourse in front of the station at noontime every day; that it was the duty of the employees in going to and from trains to inspect all stairs and, if necessary, to notify the janitor to clean any part of the station premises which needed such attention; that the station master and four employees were on duty on August 9, 1932, and their work in connection with the trains required them to pass over the stairs in question several times; that if an apple core such as described by the plaintiff had remained on the stairway for a period of at least one hour and twenty minutes, they would have seen it; that they observed no such condition; and that no report of any person who had fallen on the station premises had been made on that day.

In passing it is to the noted that the report states there was evidence that the plaintiff‘reported the accident the next day by letter addressed to the defendant company.’

The report contains all the material evidence.At the close of the evidence the plaintiff and the defendant made requests for rulings.The defendant's requests unmbered 1, 3, 4, 5, 6 and 8 were denied.These requests are as follows: ‘1.There was no negligence of the defendant which contributed to the plaintiff's accident and resulting injuries.3.Upon all the evidence the apple core was upon the steps or stairs through no negligence of the defendant company.4.Upon all the evidence no inference can be drawn from the appearance and condition of the apple core that it had been upon the steps or stairs over any considerable period of time or that it was in such a position that it should have been seen and removed by the employees of the defendant in the performance of their duties.5.The evidence is insufficient to show that the defendant was negligent because of any failure to inspect the premises or to sweep the premises more frequently.6.Upon all the evidence the apple core may have been dropped shortly before the accident by a stranger to the defendant and therefore there without fault of the defendant.8.Upon all the evidence the plaintiff did not have the rights of a passenger but was a mere licensee, using the premises of the defendant for his own purposes, and therefore, the only duty which the defendant owed to him was to refrain from any wilful and wanton misconduct.’

The trial judge found for the plaintiff, and filed a statement of findings and rulings, in part as follows: ‘I find that on the 9th of August, 1932, the plaintiff went upon the premises of the defendant company for the purpose of meeting an...