Link v. Atlantic Coast Line R. Co.

• Decision Date: 21 June 1921
• Docket Number: No. 16650.,16650.
• Citation: 233 S.W. 834
• Parties: LINK v. ATLANTIC COAST LINE R. CO. et al.
• Court: Missouri Court of Appeals

233 S.W. 834

LINK v. ATLANTIC COAST LINE R. CO. et al.

No. 16650.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Rehearing Denied September 19, 1921.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Albertina Link against the Atlantic Coast Line Railroad Company and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

H. R. Small, of St. Louis, for appellant.

Chas. E. Rendlen, of Hannibal, John A. Hope, of St. Louis, and Harrison White, of Hannibal, for respondent.

BECKER, J.

Plaintiff recovered a judgment in the sum of $2,995 against the said Atlantic Coast Line Railroad Company, one of the defendants below, in her action for damages for personal injuries. At the close of plaintiff's case, the court indicating that it would sustain a demurrer on the part of the other defendant, the Pullman Company, plaintiff took an involuntary nonsuit as to said defendant with leave to set the same aside. Defendant Atlantic Coast Line Railroad Company in due course appeals.

Plaintiff alleges in her petition that as she was in the act of boarding a Pullman car, which was a part of a train of cars belonging to the defendant railroad company in a passenger station at Jacksonville, Fla., she stepped upon the usual stool or foot box such as is customarily provided for such purpose, and at the moment when plaintiff had one foot upon the said stool "it turned over or tilted over while plaintiff was thereon, duo to the negligence and carelessness of the defendant in placing it upon an, uneven surface upon said platform, or due to said stools uneven and unsafe condition so that the same was not steady and secure and said means of boarding said car was negligently made insecure," and that by reason thereof plaintiff, "without her fault in any wise contributing thereto, was thrown violently against and upon the steps of said coach, and her left ankle was turned, twisted, and permanently disabled; plaintiff's body, hips, legs, and lower spine, were sprained, wrenched, bruised, and injured."

The defendant's answer was a general denial coupled with a plea of contributory negligence.

Appellant here seriously contends that plaintiff failed to make out a case entitling her to go to the jury.

In considering the case on defendant railroad company's demurrer at the close of the entire case, as we must, we must give plaintiff the benefit of all testimony that has been adduced on her behalf, as well as that of any favorable testimony given by defendant's witnesses, and discard, for the purposes of considering the demurrer, such testimony of the defendant's witnesses as is contradicted. In addition thereto we must allow plaintiff the benefit of the reasonable inferences of fact on all the proof. Fritz v. Railroad Co., 243 Mo. 62, loc. cit. 77, 148 S. W. 74; Stauffer. v. St. Ry. Co., 243 Mo. 305, loc. cit. 316, 147 S. W. 1032; Williams v. Railroad Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Peters v. Lusk, 200 Mo. App. 372, loc. cit. 379, 206 S. W. 250; Schulz v. Railroad Co., 223 S. W. 757.

We readily concede that the question thus raised is a close one, but, viewing the record before us in the light outlined above, we have come to the conclusion that plaintiff made out a prima facie case entitling her to go to the jury.

According to plaintiff's own testimony, she, accompanied by her husband, her four children, and her husband's brother, entered the station of the defendant railroad company at Jacksonville, Fla., to travel to St. Louis, and on being directed to the Pullman car, for which they had tickets, three of plaintiff's children preceded her into the Pullman car, stepping upon the stool or foot box placed next to the steps of the car for the purpose of the passengers' convenience in entering same. Plaintiff followed the said three children, carrying her fourth child, of the age of one year, in her left arm. On her right wrist plaintiff carried a small pocketbook. Plaintiff placed her left foot on the foot box, and without taking hold of the handrail of the car raised her right foot from the station' platform up to within a few inches of the lowest step of the Pullman coach when the foot box tilted and caused her to fall, throwing her forward on to the steps of the car, Injuring her. There were no Pullman porters In the immediate vicinity of the steps of said car when plaintiff reached the foot box, but there were two or three porters at the next coach. She injured her ankle and was bruised about her limbs, hips, and spine. At the time that plaintiff fell her husband and her brother-in-law were some 8 or 10 feet away engaged in surrendering the railroad and Pullman tickets to the conductor. Her husband, hearing her scream as she fell, hurried to her assistance and aided her up the steps and into the car.

In plaintiff's cross-examination we find the following questions and answers:

"Q. Now, what did you do when you came up to this step? A. I put my left foot on the stool and then put my right foot, or attempted to step on this step, and the stool tilted or turned.

"Q. Did you take hold of that handhold? A. No, sir; I had the baby in my arm.

"Q. You didn't attempt to take the handhold at all? A. No, sir; I didn't have time to. * * * The accident happened before I had time to put my arm to the handhold.

"Q. You just stepped on that stool without taking hold of anything? A. Yes, sir; on the stool; and before I could have time to grasp with my right hand the stool turned. * *

"Q. You just put your foot up there and just fell? A. No, sir; I put my foot up there and the stool turned and I fell."

Joseph Link, a son of plaintiff, who at the time plaintiff met with her injuries was nine years of age, testified that he entered the Pullman car just ahead of his mother, and that when he stepped on the foot box to enter the car the stool "kind of tilted a little bit," but that he did not tell his mother of this fact until after she had fallen. This witness, when asked on cross-examination as to how much the stool tilted when he stepped I upon it, replied that it tilted about one inch or an inch and a half.

Eugene Link testified that he was a brother-in-law of plaintiff and made the trip with her to St. Louis and was present at the station and saw plaintiff "just about the time she fell." With reference to the station platform this witness testified that "there were cracks or crevices in the platform and the boards; it wasn't a new platform; it looked like some boards were a little bit higher than others." In his judgment some of the boards were from one-half to one inch higher than others and some of the cracks and crevices were an inch wide. He further testified this was the condition of the platform at the place where the foot box in question stood at the time plaintiff met with her injuries. He also testified that plaintiff's husband immediately went to plaihtiff's assistance upon her falling and helped her up the steps of the car and into the coach; that he looked at the foot box after plaintiff had fallen and found that the "box was tipped up, but not clear over." And in answer to the question, "Was any part of the box in the crevice you describe? he answered, "Yes, sir."

"Q. One of the corners, by the side, or what part of, if you know? A. Well, it was the corner of it.

"The Court: The corner of what did you say? A. In a crevice."

On cross-examination the witness testified that all four feet of the foot box were not on the platform, and that it was tipped up on one corner. And in answer to the question, "It was just standing on one foot?" he answered, "Yes, sir; either in a crevice or standing on the platform."

"Q. You don't know whether it was in a crevice? A. I didn't say I did.

"Q. Well, you say then that you don't know whether it was in a crevice or not? A. No, sir."

Plaintiff's husband, A. L. Link, testified that plaintiff and the children were walking a little ahead of the witness as he came down the platform to the train; that he himself was carrying two grips; that some eight or ten feet from the entrance of the Pullman car he set the .:;rips down and took his tickets out of his pocket and handed them to the conductor, who stated, with reference to the Pullman car which they were to board, "that is the car," indicating the one which plaintiff endeavored to enter. He testified he did not see plaintiff when she actually fell, but was attracted by her scream. He immediately turned around and ran over and picked her up. He testified that the boards on the station platform were a little uneven; some probably one-half to three-quarters of an inch higher than the...