Devine v. Empire State Railroad

Per Curiam. In alighting from one of defendant’s cars, plaintiff slipped and fell, receiving the injuries for which recovery has been had. After the fall, a strip of banana skin about an inch or an inch and one-half wide and about three or four inches long and dark colored, “ very much the same color as the floor of the car,” was found adhering to her shoe. There were but two people in the car beside the motorman and herself, one a lady who sat directly in front of her and in the third or fourth seat from the front of the car; the other, a lady who sat just behind the motorman on the left side of the car. No other person had been in the car for some twenty-five minutes, including ten to fifteen minutes that it stood upon a switch and during which time the motorman was engaged in conversation with the lady immediately behind him. Plaintiff fell when opposite the seat in front of her but just when the banana skin became attached to her shoe is not attempted to be shown, although it was not there when she entered the car; neither is it shown whether it lay in the aisle or on the floor in front of the seat which plaintiff occupied; as to whence it came or how long it had been in the car the record is equally silent; it may have been in the car when plaintiff entered or it may have been discarded by one of the other ladies but shortly before plaintiff fell. No presumption of negligence arises from the mere fact that plaintiff slipped upon it and was injured. Proof must be adduced from which it may be said that defendant either knew of its presence or else, in the exercise of the care demanded of it, should have known. With less than this actionable negligence is not shown. (Benson v. Manhattan R. Co., 31 Misc. 723; Scholtz v. Interborough R. T. Co., 48 id. 619; Kaplowitz v. Interborough R. T. Co., 53 id. 646; Idel v. Mitchell, 158 N. Y. 134; Frank v. Muller, 235 id. 540; O’ Neill v. Boston Elevated R. Co., 248 Mass. 362; 142 N. E. 904; Hotenbrink v. Boston Elevated R. Co., 211 Mass. 77; Goddard v. Boston & Maine R. R., 179 id. 52.) The judgment and order should be reversed on the law and facts and a new trial granted, with costs to appellant to abide the event. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ. Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide the event.