Solomon v. Boston Elevated Ry. Co.

• Decision Date: 23 June 1931
• Citation: 176 N.E. 810,276 Mass. 139
• Parties: SOLOMON v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 139

176 N.E. 810

SOLOMON

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1931.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action by Amelia Solomon, administratrix, against the Boston Elevated Railway Company. Verdict for plaintiff. On defendant's exceptions.

Exceptions overruled.

T. S. Bubier, of Lynn, for plaintiff.

E. A. McLaughlin, Jr., of Boston, for defendant.

CROSBY, J.

This is an action of tort. The declaration is in two counts. The first alleges that the plaintiff's intestate, while a passenger upon the defendant's railway on September 10, 1922, was injured by reason of the defendant's negligence. The second count alleges that, as the result of such injuries received by reason of the negligence of the defendant set forth in the first count, the plaintiff's intestate died. This count was waived in the Superior Court after the plaintiff's opening and before the introduction of any evidence.

There was evidence tending to show that the intestate and his son alighted from one of the defendant's elevated trains at its Rowes Wharf station in Boston and proceeded down the stairs leading to the street; that when the intestate reached the next to the last step he caught his foot upon something and fell upon the concrete pavement; that he was picked up by his son and they then examined the step next to the bottom of the stairway and found that a piece of the metal safety tread on this step had broken away from its main part and extended outward beyond the edge of the stairway; that it was about two and one half inches long; that it was broken away from the main part a distance of about three quarters of an inch and projected outward about the same distance; that the top part of the piece so projecting seemed to be worn down and the edges of it were rough and rusty, and that the main part from where it was broken off was also rusty; that the edges of the safety tread were broken off and were twice as thick at either side as in the middle; that the broken piece was directly in the path of the intestate as he walked down the stairs. At the close of the evidence the defendant filed a motion for a directed verdict in its favor; the motion was denied subject to the defendant's exception.

It is not contended by the defendant that the plaintiff's intestate was not in the exercise of due care. Apart from an exception relating to evidence, the only questions are whether the projection of a portion of the metal tread for a distance of three quarters of an inch beyond the edge of the step could be found to be a defect, and, if so found, whether it had remained in that condition a sufficient length of time to have been discovered and remedied by the defendant.

It is earnestly argued by the defendant that as matter of law the part of the metal tread which extended three quarters of an inch beyond the step could not be found to be a defect. The defendant relies upon the decision in Jennings v. Tompkins, 180 Mass. 302, 62 N. E. 265, where it was held that a nail which projected three sixteenths of an inch on a wooden step in the aisle of a theatre was not a defect for which the person in control of the theatre was liable to one who was injured by a fall caused by catching his heel on...