Benson v. Manhattan Railway Co. — 31 Misc. 723

Majority

p. 723

Robert A. Benson, Respondent, v. The Manhattan Railway Co., Appellant.

(Supreme Court, Appellate Term,

June, 1900.)

Headnote

Negligence — Facts not creating a presumption of negligence — Passenger slipping on banana peel.

No presumption of negligence upon the part of ah elevated railroad corporation is raised by mere proof that, at midday, a passenger was injured by slipping upon a banana peel lying upon the stairway of a station, in the absence of any evidence as to how long the banana peel had been there, or that the corporation had had notice of its being there, or that it had had time or opportunity to remove it.

Appeal from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan.

Balph H. Holland, for respondent.

Charles A. Gardiner (Merrill W. Gallaway, of counsel), for appellant.

Plaintiff sued to recover damages for personal injuries sustained in consequence of slipping upon a banana peel lying upon the stairway of defendant’s station. The accident occurred in midday, and the case is .without a scintilla of evidence as to how long the banana peel was upon the stairway previous to the occurrence. To hold the defendant liable, under such proof, is to make the defendant an insurer of the safety of its passengers. This is not the law. It does not appear that the defendant had notice of the existence of this obstruction upon the stairway, nor that it had time or opportunity to remove it. Eor all that appears to the contrary, it might have been- thrown there by some other passenger immediately previous to the plaintiff stepping upon it. The accident itself raises no presumption unfavorable to the defendant. No negligence on defendant’s part having been shown,

p. 724

it was error to deny the defendant’s motion to dismiss the complaint, and the judgment should be reversed.

Beekmah, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.