McClanahan v. St. Louis & S. F. R. Co.

• Decision Date: 08 March 1910
• Court: Missouri Court of Appeals
• Parties: McCLANAHAN v. ST. LOUIS & S. F. R. CO.

126 S.W. 535

147 Mo. App. 386

McCLANAHAN v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

March 8, 1910.

1. CARRIERS (§ 286) — INJURIES TO PASSENGERS — CONDITION OF PREMISES.

A railroad company is required to keep the platform at a station on which it invites passengers to alight in good condition, and is liable for any accident to passengers alighting from its train by reason of a defect in the platform.

2. TRIAL (§ 210) — INSTRUCTIONS — EFFECT OF EVIDENCE.

On the issue whether plaintiff's broken limb was caused by her falling into a hole in a station platform, where, after the accident, she was about on her feet at least until the following morning, and there was conflicting expert testimony as to whether it was possible for her to have a fracture and to have done this, a request to instruct that, though plaintiff testified that her injury was received by falling into the hole, yet, if such statements are contrary to the physical facts of the same evidence, the jury should disregard her statements, should be granted.

3. CARRIERS (§ 316) — INJURIES TO PASSENGERS — BURDEN OF PROOF — PROXIMATE CAUSE.

In an action for injuries from a defect in a station platform received by one alighting from a train, the burden is on plaintiff to show that the injury is directly traceable to the accident.

4. EVIDENCE (§ 77) — PRESUMPTIONS — FAILURE TO PRODUCE EVIDENCE.

In an action for personal injuries, the failure of plaintiff to produce as witnesses the physicians whom she employed to attend her, and a young man who was a member of the household, was a strong circumstance against her.

5. CARRIERS (§ 318) — INJURIES TO PASSENGERS — EVIDENCE — CAUSE OF INJURY.

In an action for injuries to one alighting from a train from falling into a hole in a station platform, evidence held insufficient to show that the injury was solely and directly traceable to the accident.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. W. McClanahan, administrator of the estate of Florence Whitworth, deceased, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action for damages for injuries sustained by plaintiff's intestate in alighting from a train of the defendant at a place called Terry, in Pemiscot county. It was commenced on the 18th of January, 1908, by Mrs. Whitworth, plaintiff's intestate, who has died since the case has been appealed to this court. For convenience and brevity, we will refer to her as plaintiff in the case, or even as respondent. In her original petition the plaintiff stated, after the formal averments of the incorporation of the defendant and that it maintained a platform at this station of Terry for the accommodation of its passengers, that on the 28th of December, 1907, the conductor in charge of the train took hold of plaintiff's hand to assist her in alighting from the step of defendant's passenger coach to the floor of the platform, and that in assisting plaintiff to alight from the train the conductor suddenly pulled or jerked her and caused her to turn around and step backwards upon the platform, and that, in stepping backwards plaintiff's right foot and leg went through a hole in the platform which defendant had carelessly and negligently permitted and suffered to remain, thereby causing plaintiff to fall and be violently thrown upon her right side upon the platform; "that by reason of plaintiff's foot and right leg going through said hole in the platform, * * * and the fall of plaintiff in the manner aforesaid, and occasioned thereby, she sustained and received the following injuries without fault of her own, to wit: A bad bruise and slight abrasion of the outer upper third of the right thigh; a slight abrasion and bruise of the inner third of the upper right thigh; a dislocation of the right hip; a rupture of the synovial membrance of the joint of the right hip; a bruise and strain of the peritoneum; a severe injury to the kidneys and lower bowels; and a severe wrench and strain of the spine and other internal and external injuries, all of which injuries are permanent in nature and character." Damages in the sum of $15,000 are demanded. Afterwards, on September 4, 1908, plaintiff filed an amended petition, in which the injuries sustained and received are set forth as follows: "Bruise and abrasion of the outer upper third of the right thigh; bruise and abrasion of the inner third of the upper right thigh; rupture of the synovial membrane of the joint of the right hip; dislocation of the right hip; fracture and breaking of the femur bone in the right leg; bruise and strain of the peritoneum; wrench and strain of the lower spine; and other internal and external injuries, all of which are permanent in nature and character." The answer of defendant was a general denial and plea of contributory negligence, to which plaintiff filed a reply.

The cause coming on for trial before a court and jury, evidence was introduced on the part of plaintiff tending to show that there was a hole in the railroad platform through which plaintiff had fallen. It was about ten inches wide and seven or eight feet long, reaching about two-thirds across the platform. Plaintiff testified that on the day of the accident, when the train whistled for the stop at Terry, she got up, walked out between the coaches, and one of the trainmen helped her off. He stepped off ahead of her, set the footstool down, stepped back, reached up with his right hand, took hold of plaintiff. and gave her a jerk, and "turned her loose." She staggered backwards into the hole in the platform, and her right leg went through the hole as far as it could. It was hurting her, and she turned sick. She got up without assistance, and went from there over to her house. That was about 11 or 12 o'clock in the forenoon; did not remain at home during the afternoon, but went over to her aunt's, a Mrs. Douglas, in the evening. Plaintiff further testified that the night after the injury, after she went to bed, she never rested to any amount all night; her hip hurt her. Her husband and a young man living with them, named Age, had to turn her over in bed and help her out of bed. The next morning she tried to get up, and could not stand on her feet by herself, had to rest her weight on her left leg. Her husband helped her to dress, and Age helped her in the kitchen. She made biscuits for breakfast and they helped her to the table and she ate breakfast. Afterward she washed the dishes, stood leaning against the stove with the weight on her other leg, started back to the bedroom, but fell before she got there, sent for a doctor that night, but did not get one because the roads were bad; did not get a doctor until Tuesday or Wednesday. The accident had happened the Saturday previous. Dr. Mayes, Dr. Crow, and Dr. Phipps treated her at the time of her injury and confinement to bed. She suffered badly during that period, and was confined to her bed. It was a couple of months before she could walk by herself to amount to anything. The limb is short now, and hurts and always has hurt her; never had had any trouble with that hip or leg before. Her health prior to the accident was good; had had some sickness, but not bad; had never had any trouble with her hip or leg before, and no other fall or accident between the time she stepped into this hole and the time she was not able to move or walk on the limb, and had met with no accident since. The leg was bruised and skinned, and since the injury and at the time of the trial she had suffered from a wrench or sprain of the lower spine.

On cross-examination plaintiff said that she and her husband scuffled very often. About three weeks before he and plaintiff and Arthur Age scuffled, and they all fell down, had not scuffled any after she fell in the hole at the railroad platform, and had not hurt herself at all in any way after she fell in the hole; had never told anybody that falling in the hole did not hurt her hip; had received no injury whatever afterwards. This was Saturday that she went home on the noon train, and thought that they sent for a doctor Sunday evening, but did not get one; did not get one until Wednesday, when Dr. Mayes came and examined her hip, and left some medicine to quiet her. He did not set her hip that day; did not know how long it was until another doctor came; was sick and did not keep up with the days of the week; does not know what was done after that; was in bed 21 days before she ever sat up; does not remember how often the doctor came, but he was there several times. Dr. Mayes, Dr. Crow, and Dr. Phipps were there together once, and Dr. Phipps had made a trip to see her since she had been up. Dr. Crow was there twice, and Dr. Mayes and Dr. Phipps were with him when all three of them were there at once, and he made some trips to see her. He had treated her for the injury; guesses any one could see the injury by examining her without her telling them what it was; was bruised and skinned where the injury was; did not go anywhere else that evening, but from the train home and up to her aunt's, Mrs. Douglas', and back; did not walk around the house much.

On redirect examination plaintiff testified: That, before the accident, she kept a boarding house, and had 12 or 20 boarders, and did her work herself. Since the accident has not been able to do anything much. Between the time she fell through the hole and the next morning she suffered some from this injury; does not know whether she limped during the afternoon, was sick and hurting and never noticed, had never suffered from the right hip before the accident; had had heart trouble before the accident; after the accident had suffered bad, and since then has had those spells all the time, off and on, about as frequently as before. On recross and redirect examination she gave no testimony materially bearing on the accident,...