317 Mass. 534 | Mass. | 1945
The plaintiff seeks compensation for injuries from a fall alleged to have been sustained while stepping from a platform onto the street in a bus terminal at Maverick Square, East Boston. Actions of tort were commenced against thé city of Boston (hereinafter called the city), the Boston Elevated Railway Company (hereinafter called the Elevated) and Rapid Transit, Inc. (hereinafter called Transit), and. the cases were tried together. The plaintiff seeks to recover against Transit and the Elevated for negligence with respect to an alleged defective condition and want of repair of a certain platform. The declaration in the action against the city
The jury could have found these facts: On the night of November 20, 1940, the plaintiff rode on a train of the Elevated from Boston to the Maverick Square station at East Boston, where, upon her arrival, she went upstairs and through the station exit onto a platform or walk to wait for a Transit bus on the easterly side of the station. The platform was a “concrete surface [¡which] was . . . raised . . . higher than the street surface upon which the bus wheels were resting.” At the point where this raised surface or platform joined the street, there was a rounded curbing which extended the length of the platform except for a space occupied by steps leading to a crosswalk. When the plaintiff arrived on the platform two buses were at the station. The front of the first bus was about opposite the steps and the second bus was four or five feet behind the
1. There was no error in the direction of a verdict for the city. The city concedes that the platform where the accident occurred could be found to be a public way. The bill of exceptions states that “due notice of the accident was served upon the city” within the time required by law. The only question, then, is whether the curbing could be found to be a “defect or . . . want of repair” in a public way within G. L. (Ter. Ed.) c. 84, § 15. It cannot be said that the curbing by reason of its rounded shape was a defect and the plaintiff does not so argue. From the pho
2. The plaintiff’s case against the Elevated is no better. We assume for the purposes of this decision, as the plaintiff contends, that by reason of its lease the Elevated could be found to be in control of that portion of the premises where the accident happened. See Smith v. Boston Elevated Railway, 262 Mass. 18. Inasmuch as the Elevated was obliged to accept and operate the premises as constructed it would not be liable for the manner in which the platform was constructed. Bryant v. Boston Elevated Railway, 232 Mass. 549, 551. Theall v. Boston Elevated Railway, 213 Mass. 327. We think a finding of negligence was not warranted. The case at bar is distinguishable from decisions such as Mulloy v. Kay Jewelry Co. of Quincy, 289 Mass. 264, Shrigley v. Boston Symphony Orchestra, Inc. 287 Mass. 300, Blease v. Webber, 232 Mass. 165, and Bennett v. Jordan Marsh Co. 216 Mass. 550, relied on by the plaintiff. Compare Battista v. F. W. Woolworth Co., ante, 179.
3. The direction of a verdict in favor of Transit was also right. The evidence fails to show that the premises were under its control, but even if they were, for the reasons discussed above, the evidence does not warrant a finding of negligence.
Exceptions overruled.
The declaration also contained a count for nuisance as did that in the case against the Elevated; but these counts were waived at the argument in this court.