Lowther v. St. Louis-San Francisco Railway Company
| Decision Date | 06 May 1924 |
| Citation | 261 S.W. 702,214 Mo.App. 293 |
| Parties | EVANGELINE LOWTHER, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. George E. Mix, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, E. T. Miller and A. P. Stewart for appellant.
(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant at the close of all the evidence should have been given. There was no evidence whatever as to how long the nail with which plaintiff's foot came in contact had been on the station platform or that defendant had knowledge of its presence there; and no substantial evidence that it had been in a position where it was likely to cause injury for such length of time that it could reasonably be inferred that defendant in the exercise of ordinary care, would have known of its presence in time to have removed it before the occurrence of the injury. Williams v. Railway, 288 Mo. 11; Taylor v. Railway, 240 S.W. 512; Bassell v Hines, 269 F. 231; Cluett v. Union Elec. L. & P. Co., 205 S.W. 72; Cluett v. Union Elec. L. & P. Co., 220 S.W. 865; American Brew. Assn. v. Talbot, 141 Mo. 674. (2) The court erred in admitting evidence that other nails had been on the platform at other places and at times prior to the date of plaintiff's injury. This evidence was without probative force to prove, or tend to prove, or to support a reasonable inference, that the particular nail which caused the injury had been on the platform for such length of time that defendant, in the exercise of ordinary care, could have known of its presence in time to have removed it before plaintiff was injured. Taylor v. Railway, 240 S.W. 512. (3) Instruction No. 1, given at the instance of plaintiff, is erroneous in that it authorized the jury to consider the fact of other nails being on other portions of the platform at times prior to plaintiff's injury, and is in conflict with instruction No. 3, given at the instance of defendant, which limited the jury to a finding in respect of the particular nail which caused the injury. It is reversible error to give conflicting instructions. Baker v. Railway, 122 Mo. 551; State ex rel. v. Ellison, 272 Mo. 583. (4) The verdict is excessive, and is the result of bias and prejudice on the part of the jury. Ice Co. v. Tamm, 90 Mo.App. 202, 203; Rockwell v. Third Ave. Ry., 64 Barb. 438; Brown v. St. Joseph, 184 Mo.App. 671, 672; Brown v. Carthage, 189 Mo.App. 333; Pearce v. Kansas City, 156 Mo.App. 230; Allen v. Springfield, 61 Mo.App. 270; Biggie v. Railroad, 159 Mo.App. 352, 353; Conner v. Nevada, 188 Mo. 148, 162; Winkleblack v. Mfg. Co., 187 S.W. 95, 98.
Foristel & Eagleton and Harry S. Rooks for respondent.
(1) Demurrer to Evidence. (a) All the evidence must be considered, and every reasonable inference therefrom indulged in favor of plaintiff. Stauffer v. Railroad, 243 Mo. 305, 316. (b) The evidence justified the jury in finding that the particular nail had been there long enough to constitute negligence. Falder v. Dry Goods Co., 251 S.W. 138; Peetz v. Transfer Co., 198 Mo.App. 155; Anjou v. Railway, 208 Mass. 273; Bailey v. Railroad, 139 N.Y. 302; Regan v. Railroad, 224 Mass. 418; District of Columbia v. Payne, 13 App. D. C. 500. (c) The evidence justified the jury in finding that the general condition constituted negligence for which the railroad would be liable to plaintiff for injury caused by the particular nail. Rusher v. City of Aurora, 71 Mo.App. 418; Propson v. Leatham, 80 Wis. 608; City of Latonia v. Hall, 31 Ky. Law Rep. 721; Weisenberg v. City of Appleton, 26 Wis. 56; Riley v. Iowa Falls, 83 Iowa 761; City of Bessemer v. Whaley, 187 Ala. 525; City of Galveston v. Regan (Tex.), 43 S.W. 48. (d) When the general defective condition was shown, and that defendant permitted it to continue or habitually recur, it was not necessary to prove how long the particular nail had been there. Vance v. Kansas City, 123 Mo.App. 644; Drake v. Kansas City, 190 Mo. 370; Archer v. Johnson City (Tenn.), 64 S.W. 474; Farley v. New York, 152 N.Y. 222. (e) "Where the existence at one time of a certain condition or state of things of a continuing nature is shown, the general presumption arises that such condition or state continues to exist until the contrary is shown by either circumstantial or direct evidence, so long as is usual with conditions or things of the particular nature." Dean v. Railroad, 199 Mo. 386. (f) Plaintiff's case could be proved by circumstantial evidence and plaintiff was not required to produce evidence excluding every possible cause for which defendant would not be liable. Nomath Hotel Co. v. Gas Co., 253 S.W. 975. (g) The injury was not so unforeseeable as to absolve appellant from liability. Dean v. Railroad, 199 Mo. 386. (2) Evidence. The court did not err in overruling the objections to evidence at the trial. All the evidence now complained of was admissible. Lock v. Railroad, 281 Mo. 532; Peetz v. Transfer Co., 198 Mo.App. 155; Gerdes v. Iron Co., 124 Mo. 347; Huff v. City of Marshall, 97 Mo.App. 542; Miller v. Town of Canton, 112 Mo.App. 322; Swadley v. Railroad, 118 Mo. 268; Kuntsch v. City of New Haven, 83 Mo.App. 174; Hudspeth v. Railroad, 172 Mo.App. 579; Franklin v. Railway, 97 Mo.App. 473; Bailey v. Railroad, 139 N.Y. 302; Turner v. Railroad, 158 Mass. 261; Randall v. Telegraph Co., 54 Wis. 140; Propson v. Leatham, 80 Wis. 608; Moore v. City of Burlington, 49 Iowa 136; Wigmore, "Evidence" (2 Ed.), secs. 252, 437. (3) Instructions. Plaintiff's instruction No. 1 is correct. It does not conflict with appellant's instruction No. 3, but if it did appellant could not complain thereof. Christian v. Insurance Co., 143 Mo. 460. (4) The verdict is not excessive. Link v. Railroad, 233 S.W. 834; Maloney v. United Railways, 237 S.W. 509; Ertl v. Wagner Elec., 238 S.W. 577; Moran v. Kansas City Railway Co., 232 S.W. 1111.
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, Missouri. She recovered judgment for $ 3000, 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 eighteenth of August, 1921, 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 fifteen feet wide between the bay window and the tracks, and about twenty 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 two and a half or three 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, eighteen 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 three weeks. A physician who examined this injury nearly eighteen 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...
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