Rosen v. City of Boston

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 on to her back. She described the piece of ice as a thin piece 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, put in no evidence in defence 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 [247] contends might have been the case. That takes the case out of Goddard v. Boston & Maine Railroad, 179 Mass. 52. 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 the city as a common carrier is greater than that due from a town to keep its highways free from defects, both from the fact that this passageway is small, that passengers go over it in a crowd, and that the defendant’s liability is conceded, for the purposes of this case, to be that of a carrier of passengers. That would distinguish this case from Stanton v. Salem, 145 Mass. 476, the other case in this Commonwealth principally relied on by the defendant, if that case were not distinguishable on the ground that the statutory liability of a town for a defect in a way is limited to cases where the town might have had notice of the defect complained of by the exercise of proper care. The only other argument made in defence is the injustice of allowing this plaintiff to recover when she and her other witness testified that they did not know the name of the ferryboat on which the accident happened. The testimony of both witnesses given in the bill of exceptions shows that they were not only illiterate but ignorant. Without knowing the name of the boat it must be conceded that the defendant could not practically prepare a part of its defence. But it was for the jury to say whether this proceeded from the ignorance of the plaintiff and her mother, or was evidence that the whole claim was a fraud. Exceptions overruled.