Mendum v. Massachusetts Bay Transportation Authority

In this action of tort the plaintiff seeks to recover for injuries sustained as a result of a fall while ascending an escalator operated by the defendant Massachusetts Bay Transportation Authority (M.B.T.A.). The plaintiffs exceptions are to the allowance of directed verdicts for the M.B.T.A. and for the defendant Otis Elevator Company which maintained and repaired the escalator under the supervision of the M.B.T.A. The case is before us on the plaintiffs outline bill of exceptions which reveals no evidence of specific acts or omissions constituting negligence on the part of either defendant. The plaintiff asserts that this is a case for the application of the doctrine formerly denominated res ipsa loquitur applicable only where the plaintiff sustains the burden of showing that under the circumstances, according to ordinary experience, the accident would not have happened except for the negligence of the defendant. Boyle v. Cambridge Gas Light Co. 331 Mass. 56, 63 (1954). Ginsberg v. Metropolitan Transit Authy. 333 Mass. 514, 516 (1956). Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 179-180 (1959). The erratic behavior of the escalator suggests causes not shown to be within the exclusive control of the defendants as, for example, manipulation of its movement by unauthorized persons. It cannot be said that the plaintiffs burden has been sustained particularly where, as here, the entire transcript has not been filed (Appeals Court Rule 1:22 [4] [1972J) and the bill of exceptions does not state that it contains all the evidence material to the question presented. Gurll v. Massasoit Greyhound Assn. Inc. 325 Mass. 76, 77 (1949). Schnepel v. Kidd, 332 Mass. 137, 138 (1954). Ginsburg v. Gross, 334 Mass. 709 (1956). On this evidence we cannot say that this case required its submission to the jury. Cf. Swistak v. Paradis, 288 Mass. 377, 380(1934). Exceptions overruled.