132 A. 8 | R.I. | 1926
Action for negligence.
Plaintiff slipped on a banana peel in defendant company's elevator. Heard on exceptions of plaintiff to direction of a verdict for defendant.
Defendant conducts a 5-story department store. Its duty as to keeping floors safe for use was recently considered in Langley
v. Woolworth Co.,
Our question is whether the evidence considered in its most favorable light for plaintiff furnished any ground upon which to charge defendant with negligence. Plaintiff's *207 asserted grounds are (1) the failure of the elevator operator to obey inspection orders at the various stops going down; (2) appearance of the banana skin as a basis for inference that it had remained on the floor a considerable time, and (3) that the operator failed to see and remove the skin on inspection at the fifth or fourth floor.
Plaintiff, with her sister-in-law, a Mrs. Gardiner, at about 4 p.m. on August 21, 1921, entered defendant's "well-lighted" elevator at the fourth floor in order to descend to the ground floor. It was a busy portion of the day. Passengers had just been discharged at the fifth floor. The operator "glanced" at her car floor and immediately, without passengers, descended to the fourth floor. The two above-named and plaintiff's three year old child were the only entrants there. None of them recognized the skin although Mrs. Gardiner says she saw "something" at the back of the car to which she "paid no attention". Other passengers entered at lower floors until on the ground floor there were nine. As the others had entered plaintiff had stepped back and leaving the car as the last passenger her foot slipped and upon her heel was found the banana skin, then for the first time recognized by Mrs. Gardiner and identified as the "something" she saw on entering the car. It was "partly discolored," "dark," "almost black," "crushed looking," and further was described by the only person who touched it as "wet" and "soft". The operator testified that her orders from defendant were to inspect her elevator floor at every stop, that she did so and saw no peel even at the time of the accident; that her round trip took about five minutes and that her car, which was one of several, made approximately one hundred trips per day. Mrs. Gardiner testified that the operator made no inspection of her car floor at any stop after plaintiff entered the car.
Difficult as it is to believe that the operator's orders were to inspect at every floor, acceptance of her version of these orders does not furnish evidence of defendant's negligence. The test is what reasonable prudence required the store *208 management to do under the circumstances. Under ordinary conditions such as obtained at the place and time above described inspection of the elevator floor was not required after every stop with passengers getting in and out and obstructing the operator's view of the floor. It would have been impracticable and fruitless in a busy store. Failure to inspect at floors after the plaintiff entered the elevator was not negligence and the fact that defendant had set up such a requirement could not make a failure to comply with orders negligence when it otherwise would not be.
Plaintiff relies upon the case of Anjou v. Boston ElevatedRailway Co.,
It is suggested that the Anjou case went to the jury because it was a fair question whether defendant's employees, who were on the platform for the purpose of observing and removing obstructions, ought to have discovered and removed the peel which one of them walked over ahead of plaintiff. If such be the basis of that case we do not believe its principle applicable to the facts as they existed in this case. At the fifth floor the operator, through whom alone defendant could be charged with negligence, "glanced" around and saw no peel. Assuming that one was there, there was no legal duty to make a complete inspection at that point when the evidence showed that an inspection was made at the ground floor by the starter before each trip. The operator's attention necessarily and properly was centered on the control of her car and of the appliances permitting ingress and egress of passengers. "Glancing" around was all that reasonably could be expected. The peel was not easily recognizable. It was at the back of the car behind, and at least seven feet from, the operator. The only person who saw it at the fourth floor did not know what it was. The dangerous nature of the "something" attracted no attention from Mrs. Gardiner. If Mrs. Gardiner, who saw it and was nearer to it than the operator, considered it unworthy of attention, in spite of the well known danger of a banana peel upon a floor, it seems to us it would have been improper to allow a jury to decide whether to hold defendant for the failure of the operator on a single occasion to see and remove the danger. Such procedure would practically permit defendant to be made an insurer. The difference between the present case and the case of Langley v. Woolworth Co., supra,
while theoretically one of degree is so great that it has become a difference in kind. There three employees for the space of an hour continually were traveling past and on the lookout to remove dangerous substances on the floor in plain sight. Defendant's *210
evidence denied the presence of peanut shells upon the floor and substantially admitted that if there they could and would have been seen and removed long before the hour during which they remained had expired. There was, therefore, a question for the jury whether in the exercise of due caution defendant ought to have known of and removed the dangerous substance. No one here disputed the presence of the peel and we do not think it can be fairly said that there was evidence to go to the jury as to whether defendant knew or by the exercise of reasonable care ought to have known of its presence. No error was committed in directing the verdict. Davis v. South Side Railway Co.,
The exceptions of plaintiff are overruled and the case is remitted to the Superior Court with direction to enter judgment for defendant on the verdict.
