Hotenbrink v. Boston Elevated Railway Co.

DeCourcy, J. There was evidence for the jury of the plaintiff’s due care, and we do not understand that the defendant contends to the contrary. The sole question here is that of the defendant’s negligence, involved in the presence of some tobacco spit of the size of a silver dollar or half dollar on the rear step of the car. Even if it be assumed that the presence of tobacco spit would produce a slippery condition on the car step, the plaintiff was bound to show that the defendant’s conductor knew it was there, or by the exercise of the care owed to the plaintiff would have seen and removed it. There is no evidence that the conductor knew the saliva was there. No witness in the case, with the exception of the plaintiff and the child Clausina Bookhaut, testified that the alleged condition existed even at the time of the accident; and no witness testified to its existence before the plaintiff alighted. The momentary presence of such a substance on the step would not render the defendant liable. Goddard v. Boston & Maine Railroad, 179 Mass. 52. Lyons v. Boston Elevated Railway, 204 Mass. 227. There was nothing in its appearance from which the inference could be drawn that it had been upon the step for a considerable period of time. Anjou v. Boston Elevated Railway, 208 Mass. 273. The inference that it must have been there for two minutes, or since the preceding stop at H or I Street, is merely conjectural, for it might have come from some passing teamster or pedestrian or otherwise. And the evidence fails to show that the conductor was negligent in failing to see this substance on the step before the plaintiff, fell; his position on the rear platform, to the left of the controller, would enable him to see only the outer edge of the step. It was not something to be anticipated like the accumulation of mud and slime on rainy days, Kingston v. Boston Elevated Railway, 207 Mass. 457, or of snow and ice during our winter season. Foster v. Old Colony Street Railway, 182 Mass. 378. Nor did the testimony disclose any rule of the company imposing upon the con [79] ductor a special duty to examine the car steps for tobacco spit. Kingston v. Boston Elevated Railway, 207 Mass. 457. On the evidence presented the plaintiff was not entitled to go to the jury on the issue of the defendant’s negligence. Exceptions overruled.