Gibler v. Terminal Railroad Association of St. Louis

Citation101 S.W. 37,203 Mo. 208
Decision Date02 April 1907
CourtUnited States State Supreme Court of Missouri

Appeal from Audrain Circuit Court. -- Hon. H. W. Johnson, Judge.

Reversed and remanded.

J. E McKeighan and Wm. R. Gentry for appellant.

(1) The court erred in overruling the demurrer to the evidence: (a) Because the evidence showed that defendant was exercising ordinary care to clean up its bridge and keep it in safe condition. Ordinary care was all that was required of defendant in this connection. Grigsby v. Chappell, 5 Rich. L. (S. C.) 445. (b) Because plaintiff's own testimony shows that he was guilty of negligence in selecting the route which he chose to walk upon when he knew of the presence of the ice, slush and snow, and when by stepping back on to the thirty-four foot roadway he would have had a clean path to walk upon. Where two ways are open to walk or drive upon, one safe and the other obviously dangerous to pedestrians or drivers, and the pedestrian or driver selects the obviously dangerous one and is injured, he cannot recover. Cohn v. City of Kansas, 108 Mo. 387; Wheat v. St. Louis, 179 Mo. 572; Ray v. Poplar Bluff, 70 Mo.App. 252. (2) The court erred in giving improper instructions at the request of the plaintiff. (a) Plaintiff's instruction 1 was defective in that it allowed plaintiff to recover if he stepped upon ice and slush on the sidewalk on the bridge, without requiring the jury to first find that said ice and slush formed a dangerous obstruction to pedestrians in passing over said sidewalk. Stone v. Hubbardson, 100 Mass. 49; Chase v Cleveland, 44 Ohio St. 505; Grossenbach v Milwaukee, 65 Wis. 31; Broburg v. Des Moines, 63 Iowa 523. (b) Instruction 3 was wrong because it permitted the plaintiff to recover for "expenses necessarily incurred by him for medical or surgical attention," when there was no evidence tending to show that he had incurred any expenses for medical or surgical attention. Nelson v. Railroad, 113 Mo.App. 659; Duke v. Railroad, 99 Mo. 349; Smith v. Railroad, 108 Mo. 243; Robertson v. Railroad, 152 Mo. 382; Waldopfel v. Railroad, 102 Mo.App. 529; Rhodes v. City of Nevada, 47 Mo.App. 499.

A. R. Taylor, E. E. Rudolph and P. H. Cullen for respondent.

(1) The court did not commit error in overruling the demurrer to the evidence, for the reason that plaintiff submitted substantial evidence tending to prove his case, which showed a prima-facie right of recovery, and plaintiff was entitled to have the probative force of his evidence determined by the jury. Baird v. Railroad, 146 Mo. 265; Eichorn v. Railroad, 130 Mo. 575; Graney v. Railroad, 140 Mo. 89; Butts v. Bank, 99 Mo.App. 172; Ladd v. Williams, 104 Mo.App. 390; Knapp v. Hanley, 108 Mo.App. 353; Pembroke v. Railroad, 32 Mo.App. 61. (2) The question of whether or not plaintiff was guilty of contributory negligence in continuing to use a sidewalk where he was compelled to go, and upon which there was an accumulation of ice and snow, when he might have stepped back on the driveway, which at the time and place was at least equally as dangerous, because of teams and vehicles hurrying out from the blockade at the toll collector's office, a few rods away, was a question for the jury to decide, especially when it was shown that plaintiff was using every reasonable precaution to prevent being injured. Loewer v. City of Sedalia, 77 Mo. 431; Buesching v. St. Louis Gas Co., 73 Mo. 220; Hite v. Railroad, 130 Mo. 138. (3) The question of plaintiff's right to recover was properly submitted by the court in plaintiff's first instruction. Pembroke v. Railroad, 32 Mo.App. 61; 1 Thompson on Negligence, 317; Reno v. St. Joseph, 169 Mo. 642. However, instruction 4, offered by defendant and given by the court, is upon the very same question, and almost identically expressed, with the further and additional words "that the plaintiff must prove by a preponderance of the evidence that said ice and slush was a dangerous obstruction to pedestrians passing over said walk on said bridge," and the rule can be here applied that if omissions in the instructions given for plaintiff are fully supplied by those given for defendant, the instructions will be regarded as invulnerable. Goetz v. Railroad, 50 Mo. 472; Chambers v. Chester, 172 Mo. 462; Westen v. Mining Co., 105 Mo.App. 708; Kennedy v. Railroad, 103 Mo.App. 5; Baker v. Independence, 106 Mo.App. 507; Liese v. Meyer, 143 Mo. 560. (4) Instruction 2, given by the court, defining the term "ordinary care," as applied to defendant, was correct, and the court did not commit error in giving it. Holden v. Railroad, 177 Mo. 456; Frieck v. Railroad, 75 Mo. 609; King v. Oil Co., 81 Mo.App. 155. (5) The court did not commit error in giving instruction 3, as to the measure of damage, for there was substantial evidence upon which to base each element of damage, including any expenses necessarily incurred by plaintiff for medical and surgical attention, which the jury may believe from the evidence he has incurred by reason of said injuries and directly caused thereby. Gorham v. Railroad, 113 Mo. 421; Hayden v. Parsons, 70 Mo.App. 493; Taylor v. Iron Works, 133 Mo. 349; Mirrielees v. Railroad, 163 Mo. 492.



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 ten thousand dollars, 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 wagonway. 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 at 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 a hundred 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 guardrail 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...

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