" In Weingard v. Putnam Theatrical Corporation, 232 N.Y.S. 296, the plaintiff testified that she caught her foot in a torn place in defendant's carpet and fell. Her complaint was summarily disposed of by the court in the following language: "Liability could not be imposed upon defendant unless it was also shown that this condition of the carpet was known to defendant, or had existed for such a length of time that defendant should have known of it, or was of such a nature that it must have existed for such a length of time as to give it notice." And in Toland v. Furniture Co., 175 Mass. 476-477, 56 N.E. 608, where the evidence simply showed that plaintiff was tripped by a "curled up" place on a mat, the court said that the evidence fell short of showing that the condition "had been there so long that the defendant knew or ought to have known of it. The evidence is as consistent with the existence of the defect, if there was one, for a few moments only before the accident, as it is with its existence for a longer time. It does not seem to us, therefore, that the plaintiff has sustained the burden of showing that the defect (if there was one) had existed so long before the accident that the defendant, in the exercise of reasonable care, ought to have known of it and remedied it." The principle followed in the above cases is also recognized in Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488, a case cited by plaintiff, the court holding: "Defendants are not liable for any injury to plaintiff, unless before the accident the condition was such that by the exercise of ordinary c
Writs dated respectively September 22, 1897, and March 24, 1899. The first case was before the court on exceptions taken at a former trial, which were sustained by this court in a decision reported in 175 Mass. 476. Later the two cases were tried before Aiken, J., who refused to order verdicts for the defendant, and the jury returned verdicts for the plaintiff in the first case for $5,500 and in the second case for $750. The judge reported the cases for the determination of the questions of law by this court. If verdicts for the defendant should have been ordered on the evidence as it stood, or if verdicts for the defendant should have been ordered on the evidence after striking out what should have been excluded, judgments were to be entered for the defendant.
" The meager evidence fails to reveal that the cables were worn or that there was impropriety in unfastening them or in "collapsing" the doors. Any unsafe condition is not shown to have been caused by negligence of the defendant or to have existed so long that the defendant should have discovered it. This case resembles Toland v. Paine Furniture Co. 175 Mass. 476, and similar decisions, and is unlike cases of which Promisel v. Hotels Statler Corp. 286 Mass. 15, is an example.
Nevertheless, we are of opinion that upon this record it could not have been found that the defendant knew, or in the exercise of reasonable care ought to have known, that the condition of the carpet where the plaintiff fell required that it be remedied. See Toland v. Paine Furniture Co. 175 Mass. 476. Apart from the fact that the carpet had been laid for nine years, which fact standing alone does not help the plaintiff, there was no description in detail of the condition of the carpet except as hereinbefore set out. There was no evidence that anyone before had observed the condition disclosed by the record. See Robitaille v. Netoco Community Theatre of North Attleboro, Inc. 305 Mass. 265, 266.
It is equally clear that defendant is not liable for injuries resulting from the other defects complained of since there was no evidence tending to show that it knew of them or that they had existed a sufficient length of time to charge it with knowledge. In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises the condition must have been known to the owner or have existed for such time that it was his duty to know it. Kaufman Department Stores v. Cranston (C.C.A.), 258 Fed. 917; Bornstein v. R.H. White Co., 259 Mass. 34, 155 N.E. 661, and cases cited; Toland v. Paine Furniture Store, 175 Mass. 476, 56 N.E. 608; Carleton v. Franconia I. S. Co., 99 Mass. 216; Patten v. Bartlett, 111 Me. 409, 89 A. 375, 49 L.R.A. (N.S.) 1120; Schnatterer v. Bamberger, 81 N.J. Law, 558, 79 A. 324, 34 L.R.A. (N.S.) 1077, Ann. Cas. 1912D, 139; Leach v. S.S. Kresge Co. (R.I.), 147 A. 759; Bennett v. Railroad, 102 U.S. 577, 26 L. ed. 235; Lindsley v. Stern, 203 App. Div. 615, 197 N.Y.S. 106; Calvert v. Springfield Light Power Co., 231 Ill. 290, 83 N.E. 184, 14 L.R.A. (N.S.) 782, 12 Ann. Cas. 423. See, also, Hunnewell v. Haskell, 174 Mass. 557, 55 N.E. 320. In the circumstances shown neither the lack of a railing nor the defect in the stairs, standing alone, constituted actionable negligence; nor did the acts complained of, taken together, show such negligence, since it logically follows that if defendant was not liable for the defects in the stairs it was not liable for failing to provide means for possibly avoiding the results of such defects.
The description of the carpet of the taxicab warranted an inference that its condition had existed for a sufficient length of time to come to the attention of the defendants and to be remedied. It was a question of fact whether the defendants fulfilled the obligation imposed on them by law in all the circumstances. Dion v. Drapeau, 254 Mass. 186. Mitchell v. Lonergan, 285 Mass. 266. Foley v. O'Flynn, 288 Mass. 504. Tovey v. G.E. Lothrop Theatres Co. 288 Mass. 346. Toland v. Paine Furniture Co. 175 Mass. 476. Exceptions overruled.
Toland v. Paine Furniture Co. 179 Mass. 501. Bennett v. Jordan Marsh Co. 216 Mass. 550. Wheeler v. Sawyer, 219 Mass. 103. Blease v. Webber, 232 Mass. 165. The facts in this case distinguish it from Rosston v. Sullivan, 278 Mass. 31, where there was no defect and the only conduct of the defendant which it was contended was negligent was the failure to provide sufficient light to enable the plaintiff to make her way out of the theatre after a performance, and also from cases where the evidence descriptive of the condition complained of was not such as to warrant the inference that the defendant should have known of its existence. Toland v. Paine Furniture Co. 175 Mass. 476. Downing v. Jordan Marsh Co. 234 Mass. 159. Hathaway v. Chandler Co. Inc. 229 Mass. 92. It could not have been ruled as matter of law that the defendant had sustained the burden of proving that the plaintiff's negligence contributed to cause her injury. She had the right to rely to some extent on the belief that the defendant would not maintain a dangerous condition at the head of the aisle under the circumstances appearing and on the belief that the defendant's employee would not direct her to walk over a dangerous place on the floor without giving her warning of its existence.
The statement might not be commended as in good taste in the connection in which it was made, but defendant gave ample opportunity for bringing the interest of the insurance company to the attention of the jury by placing upon the witness stand the person whom the company sent to plaintiff to procure a written version of the accident and its cause. We need not discuss the cases relied on by defendant except to say that Espel v. Cincinnati Walnut Theater Co. 20 Ohio App. 470, 152 N.E. 684, was appealed by the plaintiff from the order denying a new trial after a verdict for defendant, and is on its facts like that of Barrett v. Van Duzee, 139 Minn. 351, 166 N.W. 407. Toland v. Paine Furniture Co. 175 Mass. 476, 56 N.E. 608, is like Albachten v. The Golden Rule, 135 Minn. 381, 160 N.W. 1012. Oakley v. Richards, 275 Mo. 266, 204 S.W. 505, might well have been cited by plaintiff in support of the submission of the issues here of defendant's negligence and her contributory negligence to the jury, and in approval of the verdict rendered thereon. Holmes v. United Theaters Co. 186 Mich. 548, 152 N.W. 987, affords appellant some encouragement, but it relates to a mere disarrangement or buckle of the mat leading up to the ticket office.
l the court's attention to 10 C.J., secs. 1341-42, p. 919, and authorities there cited, which hold the rule as to stations or depots and surroundings to be that only ordinary care should be observed, as distinguished from the highest degree of care that must obtain by railroads in operating trains; and that with reference to depots, station houses and platforms, negligence cannot be imputed to appellants unless they, through their employees, caused such negligence or that such negligence had existed for such a length of time as to impute to them knowledge of the said negligent act complained of. See John Thompson Grocery Co. v. Phillip, 125 P. 563; Town of Union v. Heflin, 104 Miss. 669; Kantner v. Philadelphia R. Co., 84 A. 774; Dudley v. Abrams, 122 App. Div. (N.Y.) 480; Cohea v. Coffeeville, 69 Miss. 861; and, also, Colburn v. Chicago N.W. Ry. Co., 152 N.W. 821; DeVelin v. Swanson, 72 A. 388; Schnatterer v. Bambarger, 34 L.R.A. (N.S. 1077; Norton v. Hudner, 44 L.R.A. (N.S.) 79; Mary A. Toland v. Paine Furniture Co., 175 Mass. 476; Eva Hotenbrink v. Boston Elevated R. Co., 97 N.E. 624; McNaughton v. I.C.R.R. Co., 136 Iowa, 177, 113 N.W. 844; Geo. S. Proud and Wife v. Philadelphia Reading Ry. Co., 50 L.R.A. 468. In the instant case, no negligence is shown, either actual or constructive, on the part of the appellants with reference to the brick over which appellee claims to have stumbled.
Gunderman v. Ry. Co., 58 Mo. App. 370; Fullerton v. Fordyce, 121 Mo. 1; Robertson v. Wabash Railroad, 152 Mo. 382; Chase v. Railroad, 134 Mo. App. 655; Joyce v. Railway, 219 Mo. 344; Davis v. Railroad Co., 127 N.E. 66. (b) It was incumbent upon plaintiff to show not only that a condition existed which might reasonably be expected to cause an injury but that such condition was actually known to the defendants and they had had an opportunity to correct it, or had existed for such a length of time that the defendants could have known of it by the exercise of ordinary care and corrected it or had existed for such a length of time that the defendants were presumed to know it and that they had failed to correct it within a reasonable time. Abbott v. Mining Co., 112 Mo. App. 550; Clonts v. Gas light Co., 144 Mo. App. 582; Kelley v. Ry. Co., 105 Mo. App. 365; Schnatterer v. Bamberger, 79 A. 324; Toland v. Furniture Co., 56 N.E. 608; Reeves v. Fourteenth Street Store, 96 N.Y. 488; Norton v. Hudner, 100 N.E. 546; Dudley v. Abraham, 107 N.Y.S. 97; Goddard v. Ry. Co., 60 N.E. 486; DeVelin v. Swanson, 72 A. 388; Davis v. Railroad Co., 127 N.E. 66. (3) There was plain error in the instructions given by the court on behalf of the plaintiff and refusing instructions asked by the defendants so that the case must be at least reversed and remanded. See all authorities cited under point 1. Cluett v. Power Co., 220 S.W. 865; Peck v. Amusement Co., 195 S.W. 1033.