Rosen v. City of Boston

• Decision Date: 06 January 1905
• Parties: ROSEN v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 245

72 N.E. 992

ROSEN v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1905

COUNSEL

Daggett Young & Jefferson, for plaintiff.

Philip Nichols, Asst. Corp. Counsel, for defendant.

OPINION

LORING J.

In this case the plaintiff slipped on a piece of ice on the deck of one of the defendant's ferryboats. She was a passenger at the time from East Boston to Boston, together with her mother and sister-in-law. They had left the ladies' cabin, and were on their way over the open space for foot passengers forward of the house containing the cabin, when she slipped and fell so violently as to throw her baby, which she had in her arms, over onto her back. She described the piece of ice as a thin piece about the size of a cake of soap, about three inches long and an inch and one-half wide. Her mother (who was the only other witness) testified that after the plaintiff fell she went to see 'what was the reason she fell there.' She described the piece of ice as the plaintiff did, and added that she tried to pick it up, but could not, because it was frozen to the deck; that 'it was about as thick as your finger,' and 'in the middle it was a little higher.' The accident happened on or about January 25, 1902. The defendant conceded that it was liable as a common carrier, and put in no evidence in defense except the statement of its examiner of claims that he was told to investigate the case, and had been unable to find out anything about it, but asked for a verdict on the testimony of the plaintiff and her mother. This was denied, and the jury found for the plaintiff. The case is here on an exception to the refusal of the judge to direct a verdict for the defendant.

We are of opinion that the plaintiff made out a prima facie case. No evidence having been put in as to the temperature, it must be taken to have been ordinary winter weather. In ordinary winter weather, such a piece of ice frozen to the deck so that it could not be picked off would not have frozen while the boat was running from East Boston to Boston, as the defendant contends might have been the case. That takes the case out of Goddard v. B. & M. R. R., 179 Mass. 52, 60 N.E. 486. And we are of opinion that in respect to keeping this part of the deck in a fit condition for passengers going over it, the degree of care due on the part of a common carrier is greater than that due from a town to keep its highways...