On Rehearing. In writing the original opinion the writer was impressed that this is a border line case not free from doubt and difficulty.
In view of the high degree of care imposed on carriers of passengers by elevator in this state, and the small lighted floor space under the eye of the operator, with only three passengers from the ground floor, and only two at the time of the injury, the conclusion was reached that it was a question for the Jury whether the presence of the banana peel, with the consequent hazard to the safety of passengers, would (by the exercise of the degree of care required in such cases) have been discovered by the operator.
Further banana peel cases, as well as similar hazards due to the acts of third persons, have been presented by vigilant counsel, and the court has considered still others recently decided by other courts.
While a general oversight of premises to assure the safety of passengers, coming and going, is certainly a legal duty, it is generally held, and with sound reason, this does not demand that hazards of this kind (not shown to be due to any act of the employees) shall be anticipated as a result of carelessness of third persons, and a special watchfulness for same maintained. This rule might be varied by proof that such hazards were frequent at such time and place. No such proof appears here.
As to banana peels and like hazards to passengers, it seems to be the practically unanimous holding of the cases that the plaintiff has the burden to show the employees responsible for the presence of same, or have knowledge of same, or they have been there a sufficient time for the employees, in the exercise of due vigilance, to discover and remove same.
Although, in the instant case, the other passenger, and physicians coming in, did not see the banana peel, upon looking for something on which plaintiff was insisting he had slipped, the plaintiff's evidence, we again assert, made a question for the jury on the issue whether he did in fact fall and receive his injuries from the presence of a banana peel.
But on fuller reflection and study of the authorities, we have reached the conclusion that the evidence is insufficient to make out a case of negligence in causing this hazard, or in failing to discover and remove it.
There is an entire want of evidence as to when or how the banana peel came to be on the floor of the elevator, on what part of the floor it was at the time it first came in contact with, or adhered to the shoe of plaintiff, nor indeed, whether this occurred inside or outside the elevator. The only evidence in this regard is that plaintiff did slip and fall, and thereupon discovered he had slipped on a banana peel as he was stepping out of the elevator, signs of a banana peel being *Page 657 found on the shoe, and piece of same then discovered.
Upon further consideration we conclude the defendant was due the affirmative charge.
Without reviewing the facts upon which the decisions are based, we cite a number of those which impel us to this conclusion: Windham v. Atlantic Coast Line R. Co.,71 F.(2d) 115, United States Court of Appeals, 5th Circuit; Livingston v. Atlantic Coast Line R. Co. (C.C.A.) 28 F.(2d) 563; Long v. Atlantic Coast Line R. Co. (C.C.A.) 238 F. 919; Gulf, C. S. F. R. Co. v. Blackmon (Tex.Civ.App.) 56 S.W.(2d) 199; Hotenbrink v. Boston Elevated Ry. Co., 211 Mass. 77,97 N.E. 624, 39 L.R.A. (N.S.) 419; Thomas v. J. Samuels Bro., Inc., 47 R.I. 206, 132 A. 8; Pittsburgh, C., C. St. L. R. Co. v. Rose, 40 Ind. App. 240, 79 N.E. 1094; Louisville N. R. Co. v. O'Brien, 163 Ky. 538, 174 S.W. 31, Ann. Cas. 1916E, 1084; O'Leary v. Smith, 255 Mass. 121, 150 N.E. 878.
It results that the application for rehearing is granted, the judgment of affirmance is set aside, and a judgment of reversal entered, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.