Kingston v. Boston Elevated Ry. Co.

Decision Date06 January 1911
Citation207 Mass. 457,93 N.E. 573
PartiesKINGSTON v. BOSTON ELEVATED RY. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Coakley &amp Sherman and Roland H. Sherman, for plaintiff.

Choate Hall & Stewart, for defendant.

OPINION

LORING J.

The plaintiff in this case testified that in alighting from one of the defendant's cars between 3 and 4 o'clock in the afternoon of February 16, 1907, she slipped on slime or mud which she testified 'was on all the step' and was an inch thick. The only exceptions now before us are exceptions taken to the refusal of the court to direct a verdict for the defendant and to rule that on all the evidence there was no evidence of negligence of the defendant or of its servants. The ground on which the defendant now seeks to support these rulings is that the car in question was taken out of the barn at Forest Hills at 2 o'clock and that it was then clean; that the accident happened on the second trip out from Boston; that on the whole of the first trip in to Boston and out to Forest Hills the step in question was not used, it being on the left side of the car which was run on a double track; and that this step did not begin to be used until the crew changed ends at Forest Hills at the end of the first round trip. The argument put forward is that the slime or mud must have accumulated during this second trip and that a carrier cannot be held to be negligent for the natural tracking of mud upon its vehicle during the course of a journey.

There are some indications in the bill of exceptions that the case was tried on the footing that the car did leave the car barn at Forest Hills at 2 p. m.; that it was then clean, and that the condition of the step, if it was muddy, came from the mud tracked in upon it on the second round trip. We therefore consider the case on that footing in spite of the fact that this evidence came from one of the defendant's witnesses and might have been disbelieved within the rule in Lindenbaum v. N. Y., N.H. & H. R. Co., 197 Mass 314, 84 N.E. 129. Even under these circumstances we are of opinion that it could not be ruled as matter of law that there was no evidence of negligence on the part of the defendant.

The proposition of law on which the defendant relies finds support in Riley v. Rhode Island Co., 29 R.I. 143, 69 A. 338, 15 L. R. A. (N. S.) 523. But we do not find it necessary to pass upon it in this case.

In this case the conductor of the car in question testified 'That he did not clean the step...

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