Lowther v. St. Louis-San Francisco Ry. Co.

• Decision Date: 08 May 1924
• Docket Number: No. 18539.,18539.
• Citation: 214 Mo. App. 293,261 S.W. 702
• Parties: LOWTHER v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

261 S.W. 702

214 Mo. App. 293

LOWTHER v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 18539.

St. Louis Court of Appeals. Missouri.

May 8, 1924.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Evangeline Lowther against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

Foristel & Eagleton and Harry S. Rooks, all of St. Louis, for respondent.

[OJ] NIPPER, C.

This is an action for damages for personal injuries sustained by plaintiff when she stepped upon a rusty nail on defendant's depot platform in Webster Groves, Mo. She recovered judgment for $3,000, and defendant appeals.

There is no question raised here as to the Pleadings, and therefore it becomes unnecessary to refer to them in detail.

On the morning of the 18th of August, 1021, plaintiff went to defendant's station at about 10:30 o'clock for the purpose of boarding a train there to come into the city of St. Louis. There was a train due there at about that time. The depot contained two waiting rooms, one at the west end, and one near the east end. The office located between the two had a bay window. The station platform was about 15 feet wide between the bay window and the tracks, and about 20 feet wide between the door to the east waiting room and the tracks, and extended the full length of the building and beyond. The platform was composed of cinders according to plaintiff's evidence, and of white crushed rock according to defendant's evidence. Plaintiff entered the east waiting room for the purpose of making some inquiry of the agent concerning a ticket she had. After remaining in the waiting room a few minutes, she passed out of the door to board the train. A Mrs. Egan, and her nephew, a twelve year old boy, preceded plaintiff out of the door. As plaintiff stepped down from the door sill onto the platform with her right foot, and while her left foot was still on the step, her right foot came in contact with a rusty nail about 2½ or 3 inches long, which pierced her shoe and the great toe of her right foot; the puncture reaching the bone of the joint. The little boy who was accompanying Mrs. Egan endeavored to pull the nail out of plaintiff's foot, but was unable to do so, after which a larger boy, John N. Haldane, 18 years old, pulled the nail from her foot. The nail was bent and rusty. Haldane testified that immediately after this he noticed several nails in front of the door. The evidence did not disclose how long the particular nail which plaintiff stepped on had been on the platform, but the daughter of plaintiff, Mrs. Sheridan, testified, over defendant's objections, that she frequently had occasion to be in and around this station platform, and had on numerous occasions seen rusty nails on the platform and in the cinders, some of them as large as the nail which pierced plaintiff's foot; that she had noticed such nails in front of this Waiting room door and along the whole platform; that they were Scattered promiscuously and in plain sight and were not imbedded in the cinders but loose.

Plaintiff boarded the train, and after removing her shoe, noticed that the toe was bleeding very freely. She made some inquiry of those in charge of the train as to a doctor, but none could be found who was prepared to treat her. When she arrived in St. Louis, she was met at the station by her husband and taken to a physician, where she was treated and given an injection of antitetanus serum. She was afterwards treated by two other physicians. There was an infection and inflammation resulting from the injury, causing an enlargement and other defects in the joint of this toe, She was confined to her bed for 3 Weeks. A physician who examined this injury nearly 18 months after the accident happened testified that there was an inflammation in the joint which he termed a chronic low form of inflammation of the ends of the bone entering into the formation of this joint, and that there was a slight bony enlargement or growth on the end of the bone entering the joint nearest to the foot. He also testified that this Was undoubtedly a permanent injury, progressive in form, and that the joint was likely to get larger, although the inclination to grow larger might be stopped by an operation.

The only evidence offered by the defendant was the evidence of the witness Edward Burt, who, at the time of the injury, was defendant's station agent at this point; he being the only employee at the station. He testified that on the morning of the injury he swept out the front of the entrance to this waiting room for a distance of 4 or 5 feet from the door; that he did not notice any nails lying around on the platform at the time; that express packages and boxes were never opened in front of or close to this waiting room door; packages of freight and express were never opened on that side of the depot; that it was a matter of daily routine with him to inspect the premises all around not excessive, where she suffered intense pain, and joint on the injured foot was larger than opposite foot, and would continue to grow unless removed by an operation the building, making these inspections three times a day, and that he had picked up nails in boards and on the platform; that he made this tour of inspection three times a day for the purpose of picking up anything of that kind found on the platform, and that he had picked up nails all around the building, but very seldom found nails on that side of the depot; that there was a...