WILLIAM FLAHERTY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

WILLIAM FLAHERTY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

5 Mass. App. Ct. 765

January 13, 1977

This is an action to recover for personal

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injuries sustained when the plaintiff stepped on a bottle and fell at the defendant's elevated station. The judge did not err when he allowed the defendant's motion for a directed verdict. There was insufficient evidence to warrant the submission of the case to the jury on the issue whether the bottle was present for such a length of time that the defendant's employees, in the exercise of reasonable care, should have discovered and removed it. Oliveri v. Massachusetts Bay Transp. Authy. 363 Mass. 165 , 166 (1973). There was nothing to show that the bottle was seen by, or was in plain view of, any employee of the defendant. Id. at 167. Contrast Foley v. F. W. Woolworth Co. 293 Mass. 232 , 234 (1936); Gallagher v. Stop & Shop, Inc. 332 Mass. 560 , 563-564 (1955); Young v. Food Fair, Inc. 337 Mass. 323 , 324-325 (1958). Nor was there any evidence concerning the peculiar condition of the bottle which would have permitted an inference as to the length of time it had lain on the ramp in the MBTA station. Contrast, e.g., Anjou v. Boston Elev. Ry. 208 Mass. 273 , 274 (1911). Because it was entirely speculative whether the bottle had lain on the ramp of the MBTA station for one minute or one day, the judge properly allowed the defendant's motion for a directed verdict. Goddard v. Boston & Maine R.R. 179 Mass. 52 (1901). See and compare DiAngelo v. United Mkts. Inc. 319 Mass. 143 , 145 (1946). The plaintiff testified as to the presence of debris at the station both on the day in question and on the previous day. Without deciding whether the testimony was properly admitted, we conclude that it did not, of itself, warrant a finding that the bottle over which the plaintiff tripped had lain there long enough for the defendant's employees to have discovered and disposed of it. See Fine v. F. W. Woolworth Co. 343 Mass. 328 , 329 (1961), and cases cited. Contrast Hastings v. Boston & Maine R.R. 332 Mass. 42 , 43 (1954).

Judgment affirmed.