Sweatland v. Springfield Public Market, Inc.

Pierce, J.

This is an action of tort to recover damages for injuries received by the plaintiff as a result of a fall upon a banana, which was on a sidewalk on Main Street, in the city of Springfield, “ about fifteen feet north of the Public Market Building and north of the Public Market premises.” The evidence in its aspect most, favorable to the plaintiff’s contention that his injury was due to the negligence of the defendant in allowing rubbish, fruit and vegetables to accumulate near and about the fruit stand of the defendant, in substance, is that the Springfield Public Market, Inc. on the day and time of the accident to the plaintiff, maintained a public market on Main Street; and there exposed bananas for sale on a stand or table located on the north side of the recessed entrance to the market; that the defendant kept a broom near the stand and with it each day from time to time swept up any accumulated rubbish; that immediately after the accident there was a pile of dirt, peanut shucks and bananas that had been brushed into a “ corner jog ” where the entrance to the market projects eight or ten inches beyond the window. It appeared in evidence that the plaintiff left the market, went out the front door, turned to the right and started up Main Street; that when he had gone about fifteen feet north of the Public Market Building and north of the Public Market premises, he slipped on an overripe banana, fell, and received injuries. The trial judge at the conclusion of the evidence denied a written motion of the defendant for a directed verdict in its favor.

The motion should have been allowed. The fact that the defendant sold bananas, and that bananas sometimes fell to the sidewalk from its fruit stand, do not warrant an inferential finding of fact that the banana on which the plaintiff slipped and fell on the sidewalk, not in front of the defendant’s premises but about fifteen feet away, came from the rubbish *270 pile near the fruit stand of the defendant; nor that, if it did, the defendant was negligent in respect to its removal therefrom. Whether the banana came to the place of the accident through the negligence of the defendant, or through the careless conduct of some unknown person, is a matter of pure speculation and conjecture. Goddard v. Boston & Maine Railroad, 179 Mass. 52 . Hotenbrink v. Boston Elevated Railway, 211 Mass. 77 . Norton v. Hudner, 213 Mass. 257 . Lyons v. Boston Elevated Railway, 204 Mass. 227 . Zugbie v. J. R. Whipple Co. 230 Mass. 19 . Downing v. Jordan Marsh Co. 234 Mass. 159 .

Exceptions are sustained and judgment may be entered for the defendant. G. L. c. 231, § 122.

So ordered.