Matthews V. Missouri Pac. R. Co.

• Decision Date: 02 December 1924
• Docket Number: No. 18854.,18854.
• Parties: MATTHEWS v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

266 S.W. 1020

MATTHEWS v. MISSOURI PAC. R. CO.

No. 18854.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Mary Matthews against the Missouri Pacific Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed.

J. F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Charles H. Richeson and William Cooper, both of Potosi, for respondent.

DAVIS, C.

This is a damage suit, originating in the circuit court of Washington county, for an injury to plaintiff, caused by her foot slipping off a plank, which it is alleged defendant placed across a creek. On a trial before the court and jury, plaintiff was awarded damages in the sum of $500, and from the judgment entered thereon defendant appeals.

Plaintiff's evidence tends to show that on July 21, 1921, defendant, by written contract, was granted an easement from Mary J. Waugh to the parcel of land described in the petition to build a reservoir and to construct a pipe line from said reservoir to a water tank on the railroad track. In the summer of 1921 defendant erected a concrete dam across the spring branch damming up the water, and forming a small reservoir. This reservoir was located between the dwelling house occupied by plaintiff and her husband, as tenant of Mary J. Waugh, and the barn which was used for stock, including cows; that across this creek was placed a plank; that plaintiff on December 14, 1922, having crossed the creek to go to the barn, decided to return to the house for a milk bucket. On her return she fell into the creek. It had been raining and the branch was up a little; the water had been running over the top of the board and it had frozen a little; there was ice on the board. Plaintiff stated she did not know whether she slipped off the board or the springing of the plank caused her to fall. Her foot did not stay on the plank, and she did not know how it got off; she did not step off, and she must have slipped off. The plank would spring down and get in the water a little. She stated that the plank was put there in July, 1921, and the accident happened on December 14, 1922, and she had been crossing on it all the time. She milked morning and evening, and went across that plank every time, crossing it practically four times a day. She knew its length and width, and all about it; she did not notice ice on it when she went across the first time, but she noticed it after she fell and got up. After her fall into the water, she got on the plank and walked across it. She stated that there was no rail or support to hold to when crossing on this board; that she reckoned the plank must have sprung a little and she fell; the plank was tilted when she walked across it. She did not know who put the plank there. The plank was about 16 feet long, 9 inches wide, 2 inches thick, and rested on the banks of the creek. This creek was very small and could be stepped across almost any place prior to the building of the dam. The dam backed the water up somewhat, and when the water was up it was somewhat wider; there had been a board across this branch at, or very near, the place where plaintiff fell prior to the time the dam was built, which was not placed there by the railroad company, but by some one else and was used as a crossing by respondent and others as desired.

Plaintiff's husband testified he knew the man who placed the plank across the creek, but did not know his name, although he knew he was a railroad man working there for defendant. The witness' attention was called to Mr. Hudson, the foreman, who constructed the dam, and the witness stated he was not the man who put the plank across the creek.

Witness Matthews, a brother of plaintiff's husband, testified a red headed man placed the board there; that he did not know his name, but he was working for defendant.

Plaintiff's husband, being recalled, testified that defendant's witness Spangler was the man who put the board across the creek. Spangler denied this, and also denied having a conversation relative to the placing of the board. Plaintiff's husband was permitted to...