Busby v. Southwestern Bell Telephone Co.

Decision Date30 July 1926
Docket NumberNo. 25380.,25380.
Citation287 S.W. 434
CourtMissouri Supreme Court

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action for personal injuries by Lena Busby, by her next friend, Susie Hahn, against the Southwestern Bell Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Battle McCardle, of Kansas City, W. B. Norris, of St. Joseph, and Earl E. Painter, of St. Louis (Joseph W. Jamison and George B. Whissell, both of St. Louis, of counsel), for appellant.

Mytton & Parkinson, of St. Joseph, for respondent.


This is an action by an employee for personal injuries, resulting, as she alleges, from the failure of her employer to furnish her a reasonably safe place in which to work.

Defendant at the time of the occurrences giving rise to the controversy operated a local and a long distance telephone exchange in the city of St. Joseph. The building in which the exchanges were conducted was a three-story one, fronting east on a street in the business section of the city. It was entered from the street by passing through a double doorway into a vestibule and from thence into a hallway. Straight ahead from the vestibule, and some five or six feet distant therefrom, there was a flight of stairs which ran up along the north wall of the hall from the first to the second floor. A short distance west of the stairway on the second floor a second flight led from that floor to the third. We are concerned only with the stairway from the first to the second floor. This flight consisted of 25 steps with a three-foot landing between the eleventh and twelfth. The steps were four feet long, each was seven inches wide, and each afforded a rise of seven inches. The treads were slate and of a dark color. There was a handrail all along the north side of the stairway next to the wall, but the one on the south side was not continuous. Near the top the handrail space for a short distance was occupied by a beam which served some structural purpose.

On the first floor and adjoining the hall on the south, though some distance back from the front of the building, there was a rest room for defendant's exchange operators, and on west of that a cafeteria and a locker room. These places were reached by means of a passageway along the south side of the stairs.

The only sunlight admitted to the hallway just referred to was that which came through the front entrance. Each of the street doors had large panes of glass in it and there was a transom above them. The inner vestibule doors were entirely removed during the summer months, and during that time one of the outer doors was always kept open. Just inside the hall and near the foot of the stairs an electric light was suspended from overhead. There was another light near the head of the stairs, and one dropped from the ceiling of the hall over the passageway to the rest room and cafeteria. This latter light was approximately two feet south of the stairway and was on a level with the seventh step. It had a shade over it which had a tendency to cast the rays downward.

The long distance exchange was located on the second floor and the local exchange on the third. There were 233 women employed to operate the two. On arriving at the building the operators went first to the locker room, where they deposited their wraps, and from thence proceeded up the stairway or stairways to their respective places of work. Each was on duty for two definite periods during the day, and each of those periods was broken by an intermission of 15 minutes for rest. During the recess allotted to each she went down to the rest room or to the cafeteria. Each therefore made daily at least eight trips up and down the first flight of stairs.

Plaintiff, who was 17 years of age, was employed as an operator on the local exchange. At about 7:15 p. m., on August 15, 1922, while she was on her way from the operating room on the third floor to the rest room on the first, and when she had reached the sixth step from the top in the last flight on her way down, her left foot slipped or turned back under her, so that she fell on her left knee on the step next below. Nobody else was on the stairs at the time and nobody saw her fall. She got up and went on to the rest room and at the end of her rest period returned to work. She continued to work until 9 o'clock, her quitting time, and then went home.

As a summation of plaintiff's evidence as to the nature and extent of her injuries, we quote from respondent's brief as follows:

"The next day Dr. Kessler was called and found her in bed with the left knee tender, swollen, bruised, with bluish discolorations and very painful, especially on motion. He treated her for several weeks. Sometime in September the telephone company put the plaintiff back to work in the South St. Joseph office on the ground floor, where she would not have steps to climb; but the limb continued to get worse. * * * The company had Dr. Byrne make an examination of her knee and had X-rays taken by Mr. McGlothlan. She was taken to the Sisters' Hospital by Dr. Byrne and kept in bed for about two weeks. Dr. Byrne putting an extension on her limb and weighting it so that the limb was kept perfectly rigid and stiff. * * * The plaintiff was taken home and went about on crutches until some time in February, getting worse all the time. 0 She seemed to have an enlargement or swelling of the knee joint with tenderness, pain and quite a little puffiness around the patella. In February Dr. Wm. M. Campbell was called to treat her. He had an X-ray picture made by Dr. Wright. He put her to bed, put the limb in a plaster paris cast, and prescribed absolute rest. He testified that the condition of her knee with reasonable certainty could have come from the injury received by the plaintiff on the 15th day of August; that a tubercular condition had resulted from the injury; that her condition was incurable; that she would never have the use of the leg again as she should; might get better for a time, but that anything that would bring her health down again, sickness, injury, child-bearing, would bring her down again with the disease; that at the date of testifying, in his opinion, there was still a chance for her losing her limb; that she would never be safe without a cane or crutch; that she was young and didn't want to use them; that the probable result of her injury would be to have a permanent fixation of the knee with the limb rendered immobile, or else a removal of the limb, either a fixation of the knee or removal as she gets older; that the X-ray picture which Dr. Wright took confirmed his diagnosis of the case. * * * In August, 1923, the plaintiff went to Mayo Bros., where she remained about a week to enable them to make a diagnosis of her condition; that he sent her back home to Dr. Campbell. Under the advice of physicians she has been using her limb and foot as much as possible."

After plaintiff's visit to the Mayos, following their advice, she discarded her crutches; at the time of the trial, November, 1923, she was walking about without the use of crutch or cane and apparently suffered no great inconvenience therefrom. However, her knee was still enlarged; it was tender to the touch, and it at all times caused her more or less pain. Defendant called as witnesses several physicians who gave it as their opinion that plaintiff's knee at that time was not tubercular; that she was suffering from chronic synovitis—inflammation of the membranes of the joint—brought about by the continuous use of the limb after her fall; and that if the joint was properly cared for, for a time absolutely immobilized, she would in all probability permanently recover.

The petition charges defendant with negligence in respect to the...

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