Biggie v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 06 November 1911 |
| Citation | 140 S.W. 602,159 Mo.App. 350 |
| Parties | MARY J. BIGGIE, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Schuyler Circuit Court.--Hon. Nat. M. Shelton Judge.
Affirmed.
Palmer Trimble and Higbee & Mills for appellant.
John C McKinley and N. A. Franklin for respondent.
Plaintiff was injured on the platform of defendant's station at Exline, a town in Iowa near the Missouri border, and she alleges in her petition that her injury was caused by negligence of defendant in permitting a hole to remain in the platform in the way of passengers going from the ticket office to board passenger trains. The cause of action pleaded is common law negligence and the petition does not plead the laws of the State of Iowa. Defendant did not attack the petition by demurrer nor plead in its answer that no cause existed under the Iowa laws, but at the trial objected to the introduction of evidence on the general ground that no cause of action was pleaded and presses that objection here, on the theory that the petition should affirmatively show a cause of action in plaintiff under the laws of Iowa. There is no question of the sufficiency of the petition under the laws of this state and we do not think the position of defendant is tenable. In the absence of a showing to the contrary, it will be presumed the laws of a sister state are the same as our own. [Burdict v. Railway, 123 Mo. 221; Coleman v. Lucksinger, 224 Mo. 1, 123 S.W. 441; Hurley v. Railway, 57 Mo.App. 675; Hollenbeck v. Railway, 141 Mo. 97; McManus v. Railway, 118 Mo.App. 152; Witascheck v. Glass, 46 Mo.App. 209; Truel v. Railway, 128 S.W. 223.]
Plaintiff, a spinster forty-five years old who lived with her mother at Unionville and supported herself by keeping boarders, visited her sister at Exline, July 4, 1908, and on the following day returned home. She went to the depot a few moments before train time, bought her ticket from the agent, and proceeded to board the train when it stopped to receive passengers. There was a crowd of people on the platform and plaintiff, in working her way to the train, did not see the hole in the platform into which she stepped with her left foot. This hole was over three feet long, six inches wide and twelve inches deep. All of the evidence is to the effect that it had been there some three or four weeks and that the agent had actual knowledge of its presence.
The demurrer to the evidence was properly overruled. The evidence justifies us in assuming, as a matter of law, that the hole had been in the platform long enough for defendant, in the exercise of the care it owed its passengers, to have discovered and repaired it. The undisputed facts accuse defendant of gross negligence. [Fullerton v. Fordyce, 121 Mo. 1, 25 S.W. 587.] The question of contributory negligence of plaintiff is presented by the evidence as an issue of fact for the jury. In the light of the circumstances of the situation, the jury were entitled to the conclusion that it was very natural for her to step into the hole without seeing it, and that she should not be condemned for what well might have happened to any ordinarily careful and prudent person so circumstanced.
Plaintiff recovered a verdict and judgment for two thousand dollars. Defendant earnestly attacks the verdict on the ground that it is grossly excessive and in the attack goes to the length of charging plaintiff with being a malingerer and with having aggravated the slight injuries she received from falling into the hole by her own subsequent gross negligence. The evidence not only is substantial but convincing that plaintiff has been rendered a permanent cripple by her injury. She received a bad sprain in her left ankle which pained her from the start but which she thought would yield to simple home treatment. The imputation of negligence on her part must rest on the fact that she did not call a physician, but relied on her own homely skill. We think the characterization of her conduct was an issue of fact for the jury to determine and that we would do wrong to hold her culpable in law. In many poor families, physicians are not called except in extreme cases. Ordinary injuries, such as cuts bruises, burns and sprains are given none but home treatment. Courts should be slow to condemn as contrary to rules of law the ordinary practices and usages of the large class of people who must practice the closest economy to make ends meet. It appears that...
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