O'Neill v. Boston Elevated Ry. Co.

• Decision Date: 14 March 1924
• Citation: 248 Mass. 362,142 N.E. 904
• Parties: O'NEILL v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 362

142 N.E. 904

O'NEILL

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1924.

Exceptions from Superior Court, Suffolk County; R. W. Irwin, Judge.

Action of tort by Mary E. O'Neill against the Boston Elevated Railway Company, to recover for personal injuries received while riding on a car of the defendant. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

R. T. Healey, of Boston, for plaintiff.

J. E. Hannigan, of Boston, for defendant.

RUGG, C. J.

This is an action of tort by a passenger to recover compensation for personal injuries received while riding upon a car of the defendant. There are two counts in the plaintiff's declaration. It is alleged in the first count that the plaintiff slipped by reason of the negligence of the defendant in allowing a greatly discolored portion of an apple to remain in the aisle of the car. The only evidence tending to support this allegation was the testimony of the plaintiff to this effect:

‘I got on the car at the corner of Washington street and Columbia Road. * * * I took a seat and I was nearing Quincy street, * * * and I got up to be near the door and I slipped on a dirty piece of apple core-black. * * * A woman assisted me to my feet and pointed at the time to it, the black apple core. * * * It looked black.’

There was no evidence as to the length of time it had been in the aisle. Its color was no evidence on this point. Upon the authority of numerous cases, there was no evidence of negligence on the part of the defendant on this count. Goddard v. Boston & Maine Railroad, 179 Mass. 52, 60 N. E. 486;Lyons v. Boston Elevated Railway, 204 Mass. 227, 90 N. E. 419;Hotenbrink v. Boston Elevated Railway, 211 Mass. 77, 97 N. E. 624,39 L. R. A. (N. S.) 419;Norton v. Hudner, 213 Mass. 257, 100 N. E. 546;Douglas v. Shepard Norwell Co., 217 Mass. 127, 104 N. E. 491;Zugbie v. J. R. Whipple Co., 230 Mass. 19, 119 N. E. 191;Sheehan v. Holland, 231 Mass. 246, 120 N. E. 591;Labrie v. Donham, 243 Mass. 584, 138 N. E. 3. The case at bar is distinguishable from Anjou v. Boston Elevated Railway, 208 Mass. 273, 94 N. E. 386,21 Ann. Cas. 1143.

It is alleged in the second count of the declaration that there was negligence in the sudden starting of the car. The evidence upon this point from the plaintiff was that after being assisted to her feet--

‘I had hold of the handle bar of the seat; the car had been going slowly, merely going, and the car made a sudden jerk over the crossing, and I fell forward with great strength against the iron bar. * * * The car started to go over across the track, with a jerk; it jerked; it stopped short sudden, and sent me back and forward up against the iron bar.’

Thereafter the car came to a standstill. Another witness testified that the car was ‘lurching’ and stopped, ‘slowing on a dead brake.’...