Hartford v. Boston Elevated Ry. Co.

Decision Date14 September 1932
Citation182 N.E. 476,280 Mass. 288
PartiesHARTFORD v. BOSTON ELEVATED RY. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Beaudreau, Judge.

Suit by Helen Hartford against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

James P. Brennan, of Boston, for plaintiff.

A. F. Bickford, of Boston, for defendant.

DONAHUE, J.

The plaintiff having boarded, as a passenger, a one-man car of the defendant fell and was injured while walking up the aisle to a seat. The case comes before us on the defendant's exceptions to the denial of its motion for a directed verdict and to the failure of the judge to give five requested rulings. There was evidence offered by the plaintiff tending to show that the accident happened on a cold, dry, windy winter's day; that out of doors there was snow on the ground and in places ice; that the plaintiff soon after boarding the car while making her way to a seat slipped on a formation of ice about six or seven inches square in the center of the aisle and about half way down the car. The formation of ice was variously described by witnesses called by the plaintiff as ‘frozen very hard,’ ‘packed down into the corrugations' built into the floor, ‘embedded in the corrugations,’ ‘frozen right in the crevices,’ ‘frozen in the corrugation of the car,’ ‘down in between the grooves, and part of it was protruding up’; a small piece of the ice which was kicked out of the floor with difficulty was ‘heavy and was embedded with little pieces of sand and gravel.’ There was testimony offered by the defendant tending to show that there was no ice or slippery substance on the floor. It was for the jury to say what the truth was as to the condition of the car. MacLaren v. Boston Elevated Railway, 197 Mass. 490, 83 N. E. 1088.

There was nothing in the evidence on which to base a finding that the ice on which the plaintiff slipped or the water from which such ice might have been formed, originally came upon the floor of the car because of negligence for which the defendant was responsible. Liability of the defendant could be established only if there was evidence which warranted the finding that the ice had been on the floor of its car for long enough time so that if the requisite care had been used the defendant's employees would have discovered its presence and have removed it. Labrie v. Donham, 243 Mass. 584, 586, 138 N. E. 3. If the jury believed that the plaintiff slipped on a formation of ice which had the size, shape, appearance and other characteristics described in the testimony of the plaintiff and of the witnesses called by her, the inference would not have been warranted that it recently came to be on the floor of the car by the act of some other passenger. In this respect the case is distinguishable from Goddard v. Boston & Maine Railroad, 179 Mass. 52, 60 N. E. 486;Hotenbrink v. Boston Elevated Railway, 211 Mass. 77, 97 N. E. 624,39 L. R. A. (N. S.) 419;Mascary v. Boston Elevated Railway, 258 Mass. 524, 155 N. E. 637, and Sisson v. Boston Elevated Railway (Mass.) 178 N. E. 733. While there was no direct evidence as to when the ice formation first came into existence on the floor of the car, from its character and the firmness of its attachment to the floor as described by witnesses, an inference by the jury was not unwarranted that it had been there a considerable time and long enough for the defendant's employees in the exercise of the degree of care required of the defendant as a common carrier of passengers to have discovered and removed it. Rosen v. Boston, 187 Mass. 245, 72 N. E. 992,68 L. R. A. 153. See Gilman v....

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