Gibler v. Terminal R. Ass'n.

• Decision Date: 19 March 1907
• Parties: GIBLER v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

101 S.W. 37

203 Mo. 208

GIBLER v. TERMINAL R. ASS'N OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

1. BRIDGES — LIABILITY FOR INJURIES — CARE REQUIRED.

A toll bridge company, though not a common carrier, is under the duty to keep its bridge in a reasonably safe condition for travel, and is only liable for negligence in failing to so keep it.

2. SAME — QUESTION FOR JURY.

In an action for injuries to one who slipped on slush and ice on a toll bridge walk evidence examined, and held to authorize the submission to the jury of the question whether the bridge was reasonably safe for travel.

3. SAME — CONTRIBUTORY NEGLIGENCE.

In an action for injuries to one who, knowing that a toll bridge walk was dangerous, stepped thereon from the roadway to escape from passing teams, and slipped and fell on the ice and slush, evidence examined, and held to authorize the submission to the jury of the question of plaintiff's contributory negligence.

4. SAME — INSTRUCTIONS.

In an action for injuries sustained on a toll bridge, an instruction authorizing recovery if plaintiff on the day of the accident slipped and fell on ice and slush accumulated on the sidewalk was not erroneous as authorizing plaintiff to recover without first requiring the jury to find

that such ice and slush formed a dangerous obstruction to pedestrians where the instruction further tells the jury that "if defendant did not exercise ordinary care in so maintaining said sidewalk," etc.

5. TRIAL — INSTRUCTIONS — CURE BY OTHER INSTRUCTIONS.

Where plaintiff's instructions cover only part of the case, the omission therein is supplied by those given at defendant's instance which cover the case.

6. BRIDGES — PERSONAL INJURIES — INSTRUCTIONS.

An instruction defining the term ordinary care, in an action for injuries on a toll bridge, as such care as a prudent operator of a toll bridge would exercise under the same or similar circumstances, is not misleading or confusing in using the words "such care as a prudent operator of a toll bridge would exercise" instead of "such care as a person of ordinary prudence would exercise," as both expressions mean practically the same thing.

7. DAMAGES — MEDICAL EXPENSES — EVIDENCE.

Where, in an action for personal injuries, the evidence showed that but two physicians ever called on plaintiff in a professional capacity after his injury, and that one called once or twice, but did not state whether he received any compensation for his services, and plaintiff testifid that he did not know the amount of the doctor's bill, an instruction authorizing recovery for expenses necessarily incurred by him for medicines, medical or surgical attention, is improper.

8. APPEAL — DISPOSITION OF CAUSE — REVERSAL.

Where a verdict in a personal injury case based on an erroneous instruction greatly exceeds the actual disbursements of plaintiff, the amount of excess of which cannot be separated, the judgment will be reversed.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action for personal injuries by August Gibler against the Terminal Railroad Association of St. Louis. From a judgment entered on a verdict for plaintiff, and from an order overruling a motion for new trial, defendant appeals. Reversed.

J. E. McKeighan and Wm. R. Gentry, for appellant. A. R. Taylor, E. E. Rudolph, and P. H. Cullen, for respondent.

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant in allowing the sidewalk on the bridge, known as the "Eads Bridge," spanning the Mississippi river at the city of St. Louis, upon which plaintiff was walking as a foot passenger, to remain in a defective and dangerous condition. The suit was instituted in the circuit court of the city of St. Louis, and the venue changed to Audrain county, where the case was tried on the 1st day of July, 1904, resulting in a verdict and judgment for $5,000 in favor of plaintiff. Defendant filed motion for a new trial, which was overruled by the court, and defendant appealed.

The petition, after reciting the incorporation of the defendant, and charging that it operated the bridge in question as a public toll bridge, alleges that on the 10th day of December, 1901, plaintiff, having paid the required toll, was lawfully on the bridge, passing from the east to the west side thereof, and that while so doing he stepped on ice and slush on the sidewalk of the bridge, which was used as a place for foot passengers to walk, and that he slipped and fell by reason of said ice and slush, breaking his thigh bone, and sustaining other bodily injuries. It is charged in the petition that the ice and slush so accumulated upon the sidewalk constituted a dangerous obstruction to the passage of passengers over said bridge, and that defendant was negligent in allowing the sidewalk to remain in such defective and dangerous condition. The petition closes with the usual allegations as to the injuries, pain, and suffering, loss of time and earnings, and charges that the plaintiff "has incurred and will incur large expenses for medicines, medical and surgical attention, and nursing, to his damage in the sum of $10,000, for which sum he prays judgment." The answer consisted of a general denial and a plea of contributory negligence on the part of plaintiff, to which answer plaintiff replied with a general denial.

The evidence on the part of the plaintiff tended to show that on the morning of Monday, December 9, 1901, plaintiff walked across the bridge from the St. Louis side to go to work at his trade as a glazier in East St. Louis, and that, as snow had fallen on Sunday, the bridge was in a bad condition for foot passengers, and many people, because of the snow and slush on the sidewalks, were walking across the bridge over the portion commonly used as a wagon way. Plaintiff testified that when he returned to St. Louis the same evening the condition of the bridge sidewalks was no better than in the morning, and that there was from five to eight inches of slush as some places on the walks; that it was higher in some places than in others, as though it had been piled up or swept there. On Tuesday morning plaintiff noticed that the sidewalks were still in the same condition, while the center of the bridge was cleaner and in better condition than the day before. On the evening of said Tuesday plaintiff, accompanied by Gus Weiss, a fellow workman, started to walk across the bridge from the east side, and seeing the sidewalks unfit to walk on, they walked on the center or roadway of the bridge. When they came within about 100 yards of the west toll office they saw the roadway blocked with vehicles. A wagon came along, and plaintiff got out of its way by stepping on the street car track on the north side of the bridge. Then came a buggy, driven along said street car track, and to get out of its way plaintiff stepped over the guard rail between the sidewalk and the driveway, and placed his foot on the sidewalk, which was a little lower than the driveway. After reaching the sidewalk, plaintiff took one or two steps, when his foot slipped on the slush and ice and he fell on his right hip and arm; the fall breaking his thigh bone at the hip joint. The time was about 5 p. m., and was about dusk. Plaintiff knew the condition of the sidewalk at the time, but as there were teams passing on the bridge he took his chances on the sidewalk rather than take chances in crossing the bridge to the south side ahead of the teams. Weiss raised plaintiff up and assisted him into a street car, which carried him to the west end of the bridge. He was taken to the dispensary at St. Louis, and from there home, where he was confined several months, after which he was able to get about on crutches. Plaintiff stated that he could walk a few steps without crutches, but could not stand it long, and used at least one crutch all the time. He said that on account of the injury he had been unable to do any work until about a year before the time of the trial, when he got a job, with the privilege of sitting down; his earnings being from $14 to $15 every two weeks. Before the injury he was earning $3 per day, and was in good health. He did not know the exact amount he had paid for linaments and medicines, but thought it was about $25. The amount of the doctor's bill he did not know. Plaintiff was treated by Dr. Hill, but as he was not progressing fast enough he called in Dr. Ross, who in his testimony stated that he called on plaintiff several weeks after the injury had occurred, and found evidences of fracture of the thigh bone at the hip joint. He only visited the plaintiff once or twice. For such visits he said his general charge was $2; but did not say that plaintiff had paid him. Dr. Frank Ring testified that he examined plaintiff's condition with reference to the injury some three weeks before, and found evidence of fracture of the femur bone at the hip joint. He said plaintiff would always suffer pain in using the injured leg, and would never be able to walk without support. Witness Gus Weiss, testifying for plaintiff, said that he crossed the bridge on Monday morning, December 9th, when he found snow and ice on the bridge and sidewalks between four and five inches deep. Some places it was piled up. The snow had been swept from the street car tracks on to the sidewalks, and the pedestrians used the wagon road in crossing the bridge. On the evening of the same day the conditions were no better, nor on the following morning, December 10th. His testimony was like that of plaintiff regarding the condition of the bridge and sidewalks and the circumstances preceding and attending the injury, differing slightly in the details. The testimony adduced by defendant was to the effect that snow fell on December 8th to a depth of 13/10 inches; that it quit snowing at 5:20 p. m. same day, and that after it quit snowing defe...