The rule of law, as I understand it, is that, when a passenger is injured by some instrumentality under the control of the carrier, he is entitled to recover damages upon the presumption of negligence which results from this fact, in the absence, of course, of contributory negligence, but that, where the injury has not been the result of a defect in such instrumentality, the negligence of the carrier must be established by proof.
The evidence that the plaintiff slipped on a banana peel, or that there was a banana peel in the aisle of the coach, is by no means conclusive. The Court will take judicial notice of the fact that bananas constitute a part of the stock of news-butchers, as they are commonly called, for sale to passengers on the train and not to train employees; a banana peel upon the floor of a car could hardly be considered an instrumentality of the carrier. The plaintiff testified that he saw the banana peel in the aisle, and its presence there, for the purposes of the motion for a nonsuit and for a directed verdict of evidence, however, that it had been placed there by an agent of the company, or that they knew of its presence and failed to remove it, or that they negligently failed to discover it and remove it.
In Livingston v. Atlantic Coast Line R. Co. (C.C.A.)28 F.2d 563, the Court decided that a passenger slipping *Page 277 on a banana peeling on the floor of a railroad car, is held, as matter of law, not entitled to recover without showing that the railroad's employees had opportunity to notice the presence of the peeling and remove it.
A carrier is not liable for injuries to a passenger slipping on a banana peel on a car step while alighting, unless the trainmen knew of its presence on the step, or it had been there such a length of time before the accident as would impute notice to them. Louisville, etc., R. Co. v. O'Brien,163 Ky., 538, 174 S.W. 31, Ann. Cass., 1916E, p. 1084, 4 R.C.L., 1208, § 630.
A carrier is not liable for injury to a passenger who falls from the steps of a car slippery because of tobacco juice thereon, if there is nothing to show that it had been there any length of time, and the conductor is not shown to have been negligent in failing to discover it before the accident happened, and the same rule has been applied to injury caused to a passenger slipping on a banana peel lying on the step of a car. Hotenbrink v. Boston Elevated R. Co.,211 Mass. 77, 97 N.E., 624, 39 L.R.A. (N.S.), 419, and note; 10 A.L.R., 265, note; Anjou v. Boston ElevatedR. Co., 208 Mass. 273, 94 N.E., 386, 21 Ann. Cass., p. 1144, and note.
Since it is the duty of a carrier to keep its stations in a reasonably safe condition, its negligence in permitting a banana peel or the like to remain on the floor of a station may, as announced in the reported case, render it liable for personal injuries to one who received a fall from slipping on the peel. But, where the banana peel is dropped by some third person, and the carrier has not been negligent with respect to removing it, the carrier is not liable. Thus inGoddard v. Boston, etc., R. Co., 179 Mass. 52,60 N.E., 486, referred to in the reported case, there was an absence of any evidence showing how long the banana skin had lain where the plaintiff stepped on it, or how it got there. The plaintiff testified that there were employees of the defendant *Page 278 near the spot when he fell; that he had just got off a smoking car at the rear of the train; that other passengers from the same train were walking along the platform; that there were people ahead of him; and that he stepped on something which he found out afterwards was a banana skin. He saw it after he fell, and another man kicked it off the platform against the wheel of a car, saying, "That is what he fell on." A witness testified that the platform was of some artificial stone and very smooth. It was held that the carrier was not liable; the Court saying: "The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go further to decide the case."
In Benson v. Manhattan R. Co., 31 Misc. Rep., 723,65 N YS., 271, the Court said: "Plaintiff sued to recover damages for personal injury sustained in consequence of slipping upon a banana peel lying upon the stairway of defendant's station. The accident occurred in midday, and the case is without a scientilla of evidence as to how long the banana peel was upon the stairway previous to the occurrence. To hold the defendant liable, under such proof, is to make the defendant an insurer of the safety of its passengers. This is not the law. It does not appear that the defendant had notice of the existence of this obstruction upon the stairway, nor that it had time or opportunity to remove it. For all that appears to the contrary, it might have been thrown there by some other passenger immediately previous to the plaintiff stepping upon it. The accident itself raises no presumption unfavorable to the defendant. No negligence on defendant's part having been shown, it was error to deny the defendant's motion to dismiss the complaint, and the judgment should be reversed."
In Aughtry v. City of Columbia, 111 S.C. 420,98 S.E., 195, 196, the plaintiff was walking up Main street in the City of Columbia on a paved sidewalk; she stepped on a *Page 279 piece of banana peeling lying on the sidewalk, slipped, fell, and broke her arm; she brought suit against the city for damages. In declaring that the trial Judge should have directed a verdict in favor of the defendant, the Court said: "There is no evidence to show that the peeling was on the sidewalk when the policeman passed. All the case shows is that the peeling was there when the plaintiff stepped on it. There is nothing in the case to show that the city had put it there or could have prevented it by the utmost care."
In Pearson v. Payne, Director General of Railroads,245 Mass. 158, 139 N.E., 488, it was held, quoting syllabus: "Carrier was not liable for injuries caused by wet floor in waiting room, where condition had not existed for sufficient time to have been discovered."
In Rhodes v. Houston, E. W.T.R. Co., (Tex.Civ.App.) 242 S.W. 263, it was held, quoting syllabus: "The presence of a slippery substance on the platform of a car, used by passenger in getting on and off the train, does not constitute negligence on the part of the company, unless it was placed there by its employees or has been there long enough to justify the inference that a failure to discover it was due to a want of proper care."
In Tevis v. United Rys. Co. of St. Louis (Mo.App.)185 S.W. 738, it was held, quoting syllabus: "Evidence in a passenger's action for injury held not to show how long the banana peel on which she slipped had been in the car, or whether defendant's employees had had a reasonable opportunity in which to discover and remove it."
In Louisville N.R. Co. v. O'Brien, 163 Ky., 538,174 S.W., 31, Ann. Cas., 1916E, 1084, it was held, quoting syllabus: "A carrier is not liable for injuries to a passenger slipping on a banana peel on a car step while alighting, unless the trainmen knew of its presence on the step, or it had been there such a length of time before the accident as would impute notice to them."
In Davis v. R. Co., 292 Ill., 378, 127 N.E., 66, 10 A.L. R., 254, it was held, quoting syllabus: "The mere fact that *Page 280 a passenger slips on a banana skin on a stairway leading from a carrier's station does not render the carrier liable for the resulting injury, if there is nothing to show notice on its part, either actual or implied, that the skin was there."
In Bradford v. Woolworth Co., 141 S.C. 453,140 S.E., 105, it was held, quoting syllabus: "Merchant is not liable for injuries to customers from defects in premises, in absence of knowledge of defect."
In Akin v. Ry. Co. (C.C.A. Minn.), 21 F.2d 1000, it was held, quoting syllabus: "Railroad held, as matter of law, not liable for passengers' injury, due to ice and wire on platform of coach, where no lack of care was shown."
In Jones v. Ry. Co., 222 Mo. App. 1220,5 S.W.2d 101, it was held, quoting syllabus: "Railroad is not liable for injuries caused by peelings on car floor, unless employees had knowledge or peelings were there for period imputing knowledge."
In Pittsburg, C., C. St. L. Ry. Co. v. Rose,40 Ind. App. 240, 79 N.E. 1094, 1098, a case where a passenger was injured by slipping on a banana peeling, there is an exhaustive discussion of this question, and the rule is laid down that "in all cases where an injury is sustained by a passenger while in transit, or through any defect in the appliances or operative mechanism of the means of transportation, or to any action of its servants, the carrier is held to the strictest account, but if the injury results through the carelessness of a third person in no way connected with the carrier, * * * for whose act the carrier can only be bound after notice, * * * a very different measure of duty prevails."
The last-named case is quoted with approval in the case of Livingston v. R. Co., 28 F.2d 563, which contains an exhaustive review of the authorities by Judge Northcott of the Circuit Court of Appeals, concurred in by Circuit Judges Parker and Soper, decided October 16, 1928.
The case of Forbes v. Pullman Co., 137 S.C. 433,135 S.E., 563, was decided upon the ground that the plaintiff *Page 281 was invited to enter a dimly lighted sleeping car, in the night time, and that it was the duty of the company, knowing the habit of passengers to obstruct the aisles with suitcases, to see that she safely reached a seat.
In refusing the motion for nonsuit as to actual damages, the trial Judge said: "I do not think there is any evidence at all of any wilfulness or wantonness or recklessness, or to prove or show how long that banana peel had been there or that it could have been discovered by them." In other words he did not see a particle of evidence of negligence on the part of the defendants. The plaintiff testified that he did not leave his seat until all the other passengers were out of the car. The irresistible conclusion from the evidence is that one of the other passengers in leaving the car dropped the banana peel in the coach or kicked it into the aisle.
I think, therefore, that the motion for a directed verdict in favor of the defendants should have been granted, or at least that the motion for a nonsuit should have prevailed.