Benson v. Manhattan Railway Co. — 65 N.Y.S. 271

Majority

p. 271

(31 Misc. Rep. 723.)

BENSON v. MANHATTAN RY. CO.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Street Railways—Station—Banana Peeling—Negligence.

The fact that a banana peeling was on a stairway leading to a street-railway station, on which a passenger stepped, causing him to fall, would not support a verdict against the railway company for injuries, in the absence of a showing of negligence in permitting it to remain there.

Appeal from municipal court, borough, of Manhattan, First district.

Action for injuries by Robert A. Benson against the Manhattan Railway Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.

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

Ralph H. Holland, for respondent.

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

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