Jones v. St. L.-S.F. Ry. Co.

• Decision Date: 03 March 1928
• Docket Number: No. 4219.,4219.
• Citation: 5 S.W.2d 101
• Parties: MAY RELLA JONES, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

5 S.W.2d 101

MAY RELLA JONES, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.^*

No. 4219.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from the Circuit Court of Dunklin County. — Hon. W.S.C. Walker, Judge.

REVERSED.

E.T. Miller and Ward & Reeves for appellant.

Henry C. Walker and Smith & Zimmermann for respondent.

BAILEY, J.

This is an action for damages on account of personal injuries to plaintiff resulting from a fall suffered by plaintiff while a passenger on defendant's train.

The petition states that plaintiff purchased a ticket from defendant at Gideon, Missouri, paying the regular fare for the transportation of herself and two children from Gideon to Kennett, Missouri, and that en route she occupied a seat in the rear coach of defendant's passenger train, leaving Gideon about six o'clock P.M. January 3, 1926, and continued to occupy said seat until the train arrived at Kennett. It is further alleged that it was defendant's duty "to keep the aisle of its said coach free from fruit peelings and rubbish and other substances which might cause passengers while walking through said aisle to slip and fall thereon, but that defendant company, wholly disregarding its duty in this behalf, negligently and carelessly permitted the aisle of the coach in which plaintiff was riding to be littered with fruit peelings and other rubbish so as to endanger passengers walking through the aisle of said coach and causing plaintiff to be injured in the manner hereinafter set out.

"Plaintiff further states that after said aisle had been cleared of passengers, as aforesaid, she undertook to lead her two small children to the north end of said coach for the purpose of alighting therefrom; that as she was proceeding through said aisle for the purpose aforesaid, and while exercising due care and caution for her safety, one of her feet slipped on a fruit peeling lying in the aisle of said coach, causing her to be thrown suddenly and violently backward against one of the seats of said car and into the aisle thereof, severely injuring her head, back and thigh; that, etc."

The answer contained a general denial and also specifically denied negligence in permitting the aisle of the coach to become littered with fruit peelings and further denied that fruit peelings negligently permitted to remain in the aisle caused plaintiff to fall; that if there were fruit peelings or rubbish in the aisle defendant and its employees had no knowledge or notice thereof. Then follows a plea of contributory negligence. The reply was a general denial. On trial to a jury a verdict was returned for plaintiff in the sum of $2000 and judgment entered accordingly, from which judgment defendant has appealed.

The sole assignment of error urged in this court is for failure of the trial court to give defendant's instruction in the nature of a general demurrer to the evidence offered at the close of plaintiff's case and again at the close of the whole case. Before considering this question it becomes necessary to dispose of plaintiff's contention that defendant waived its demurrer to the evidence at the close of the case by requesting and having the court give to the jury defendant's Instructions "C" and "D," submitting to the jury the question of knowledge on the part of defendant's employees of the presence of a banana peeling on the floor of the car. In support of this contention, plaintiff cites, Davidson v. Hines, 246 S.W. (Mo. Sup.) 295 l.c. 303. The Davidson case was an action against a railroad company for personal injuries caused by plaintiff being run down by a train in the nighttime. Negligence was laid on failure of defendant to keep a look-out, failure to maintain a light, failure to sound a warning and also the humanitarian theory of liability was pleaded. At the close of all the evidence a general demurrer thereto was overruled. Thereupon defendant offered and had given certain instructions limiting and controlling the issues submitted to the jury. Under such circumstances our Supreme Court ruled that defendants, by causing the instructions mentioned to be given to the jury "estopped themselves from denying that the evidence was sufficient to go to the jury upon each of the questions so submitted." That case is in line with previous rulings of the Supreme Court on that question. [Torance v. Pryor, 210 S.W. 430.]

It has no application to this case for the reason the petition contains but one assignment of negligence, i.e., that defendant permitted the aisle to be littered with fruit peelings and that one of plaintiff's feet "slipped on a fruit peeling lying in the aisle of said coach."

Where the petition contains but one assignment of negligence a general demurrer to the evidence attaches to that issue and thus becomes just as specific as a special demurrer directed to that issue would be. There is no necessity or possibility of singling out or separating issues in a case where there is but one issue and therefore the reason for the rule announced in the Torance case, supra, vanishes. [State v. Becker, 293 S.W. 783; McMahon v. Iron & Steel Co., 267 S.W. 83.]

Under this record defendant had the same right to offer additional instructions without waiving its demurrer to the evidence as it would have had if a specific demurrer to the evidence as to negligence in permitting the aisle of the coach to become littered with fruit peeling had been offered.

It may also be noted that the Instructions "C" and "D," in the form offered by defendant, were refused, but amended instructions were given by the court containing the same substance as the instructions offered, differing only on the question of degree of care. Defendant asserts that the rule above referred to, cannot be invoked when its instructions are refused. We are inclined to the view that where the instruction given by the court is substantially the same as the one offered, the mere refusal to give the instruction in the identical language contained in the original instruction would not prevent the operation of the rule of waiver heretofore mentioned. However that may be, it is clear that in this case defendant has not waived its demurrer to the evidence.

In considering this demurrer we must give due weight to the established practice which requires the appellate court under such circumstances to accept as true all the evidence favorable to plaintiff and to indulge in every reasonable inference which may be drawn from such evidence in support of plaintiff's case. [Murrell v. Railroad, 213 S.W. 964, 279 Mo. 92.]

The evidence fully establishes the fact that plaintiff was a passenger on defendant's train and that while she was leaving the train, upon its arrival at Kennett, she fell and was severely injured. The events leading up to her fall and the cause of the accident itself may be best understood from plaintiff's own testimony. She testified that she with her two children, got on the train at Gideon about twenty minutes until five o'clock in the afternoon and arrived at Kennett near seven o'clock that evening; that before taking a seat in the car she brushed some "cracker crumbs and pieces of cheese from the seat; that her seat was about three seats back from the middle;" that the train made stops at Clarkton, Campbell, White-Oak and Kennett; that she paid little attention to the other passengers; that there was a lady about three seats up — "and she peeled a banana and divided the banana, and that's all I noticed, among the three children. From the time I got on that train at Gideon until I reached Kennett, I did not see any porter on that train come through and clean up:" that no brakeman or conductor came through and cleaned the aisles; that the trip from Gideon to Kennett required about two and one-half hours. As to the manner in which the accident occurred she testified as follows:

"When the train stopped people got up and began to get off of the train and I waited till the bigger majority of the people, in fact, all had gone ahead of me; there was one lady left in the car, that was reading, that didn't get off, and the rest all got off, and I took the children and started off with them, and between the first and second seat I was standing even, like this, that is, I was making a step and was holding this little boy's hand, this one was holding mine and as I made the step, as I put my foot down, my right foot went from under me and threw me, and I was trying to keep from falling on the little boy and fell and struck my arm, sliding back to the back and struck my head on the iron down on the side of the coach. I fell between the two seats, and then everything went dark as I struck, and the next thing I knew there was a gentleman had lifted me up and then I could see a little bit and again things went dark again, and my first thought was the children and I mentioned to get my children, and they started to put me in the seat and it just seemed like I got so sick all over, and they sat me back and then sat me in the seat, and I was just deathly sick and numb all over, and the lady that was on the train Miss Snider came to me, and the lady on the train and somebody put a wet handkerchief on...