Cartoof v. F. W. Woolworth Co.

Wait, J.

This case is governed by the decisions in Mascary v. Boston Elevated Railway, 258 Mass. 524 , and O’Leary v. Smith, 255 Mass. 121 . No evidence appears which can distinguish it. Nothing was shown which would warrant a finding that negligence on the part of the defendant contributed to the plaintiff’s injury. The evidence taken most strongly for the plaintiff shows that she fell because a sticky substance caused her foot to catch on the second step of a stairway which she was descending so that she fell to the floor below. At a popcorn counter about a yard from the stairway she was directed to go down the stairs. She trod on some sticky popcorn on the floor by the counter. This, she testified, she removed from her shoe. She went on to the stairway, stepped on a sticky substance about the size of the ball of her foot, caught her foot and fell. Some one removed a substance from her shoe, which she did not see but was told was popcorn and black stuff as if trampled upon. On going up the staircase she saw on the stair a, black substance that looked like “a lot of popcorn and oil stuck there together.” There is nothing to indicate how long any foreign substance had been upon the stair to lay the foundation for a finding that, in the exercise of the care which a storekeeper should exercise to see that the stairs to be used by his customers are reasonably safe, it should have been seen and removed by him. To conjecture that it had been there so long that those in charge should have found it and taken it away is no more justifiable than to suppose that she had failed to *369 remove the entire mass which adhered to her shoe and had herself brought the substance upon the stair.

The color of the substance here in question is no better evidence of the time it had been on the stair than was that of the “black apple core” held insufficient in O’Neill v. Boston Elevated Railway, 248 Mass. 362 . In Anjou v. Boston Elevated Railway, 208 Mass. 273 , relied on by the plaintiff, there was more than color to warrant finding that the banana skin, there in question, had lain on the platform so long that it should have been found and carried away. Regan v. Boston & Maine Railroad, 224 Mass. 418 , and Wheeler v. Sawyer, 219 Mass. 103 , also relied on by the plaintiff, are clearly distinguishable. See Goddard v. Boston & Maine Railroad, 179 Mass. 52 ; Norton v. Hudner, 213 Mass. 257 ; Towne v. Waltham Watch Co. 247 Mass. 390, 393 ; Sweatland v. Springfield Public Market, Inc. 247 Mass. 268 . The verdict for the defendant was directed properly.

In accord with the report, judgment is to enter for the defendant on the verdict.

So ordered.