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

• Decision Date: 21 March 1911
• Citation: 135 S.W. 1016,155 Mo. App. 710
• Court: Missouri Court of Appeals
• Parties: MUNRO v. ST. LOUIS & S. F. R. CO.

135 S.W. 1016

155 Mo. A. 710

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

St. Louis Court of Appeals. Missouri.

March 21, 1911.

Rehearing Denied April 4, 1911.

1. PLEADING (§ 369) — MOTION TO ELECT — GROUNDS — INSUFFICIENCY OF COUNTS.

A petition cannot be attacked by a motion to elect as between the counts on the ground that neither count of itself stated facts constituting a cause of action, as that would be to substitute such motion for a demurrer.

2. NEGLIGENCE (§ 111) — PLEADING — PROXIMATE CAUSE.

A petition in three counts charging one injury as resulting from three negligent acts, each count alleging that the act ascribed therein "directly contributed" to the injury, was not defective in not alleging that the negligence pleaded in each count was the proximate cause of the injury.

3. CARRIERS (§ 314) — PASSENGERS — INJURIES — ALLEGATIONS OF PETITION — CONTRIBUTORY NEGLIGENCE.

In an action against a carrier for injuries from defects in a station platform, the allegations of the petition held not to justify an inference that plaintiff was guilty of contributory negligence.

4. ACTION (§ 38) — SEVERAL CAUSES OF ACTION — SEVERAL ACTS OF NEGLIGENCE.

The petition may allege several distinct acts of negligence if they are not inconsistent with each other.

5. CARRIERS (§ 320) — PASSENGERS — INJURIES —JURY QUESTIONS — NEGLIGENCE.

Evidence, in a railroad passenger's action for personal injuries by stumbling because of the decayed condition of the platform and falling under the train, held to make it a jury question whether defendant was negligent as to the condition of the platform.

6. CARRIERS (§ 286) — PASSENGERS — INJURIES — DEFECTIVE PLATFORM — KNOWLEDGE OF DEFECTS.

A railroad company is only bound to use ordinary care to keep its platforms and approaches in a safe condition for passengers, and, if a defect in a platform was not directly caused by its servants, it must be shown that it or its servants knew, or by the exercise of ordinary care could have known, of the defect, in time to have had reasonable opportunity to repair it, and failed to do so, in order to make the company liable for injuries to a passenger therefrom.

7. NEGLIGENCE (§ 136) — JURY QUESTIONS.

Whether defendant failed to exercise ordinary care is a question for the jury, unless it could be decided in only one way under the evidence.

8. NEGLIGENCE (§ 4) — ORDINARY CARE.

What constitutes ordinary care depends upon the circumstances of each particular case.

9. TRIAL (§ 141) — JURY QUESTIONS — CREDIBILITY OF WITNESSES.

When a party having the burden of proof offers testimony, the other party is entitled to have the jury determine its credibility, even if he offers no contradicting evidence, though he may concede a fact by his pleadings, or by offering testimony to prove it, or by his conduct.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Grover Munro, a minor, by his next friend, Agnes Munro, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Suit to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had judgment for $7,500, and defendant has appealed.

The amended petition upon which the case was tried was in three counts. The first count, after alleging plaintiff's minority, the appointment of his next friend, the incorporation of the defendant, its character as a common carrier operating, controlling and maintaining a railroad, alleges: "That on or about the 23d day of July, 1908, he got on a regular passenger train which was under the control of, and being operated by, the defendant (on its said railroad), and paid the regular passenger fare on said train from Festus to Selma, Mo. (two regular stopping places for passengers on said railroad). That the train on which plaintiff was a passenger stopped at said Selma for the purpose of allowing passengers to alight therefrom. * * * That at said time the defendant maintained a platform at Selma for the purpose of taking on and discharging passengers. That it was the duty of the defendant to furnish the plaintiff with a reasonably safe place at which to alight and depart from said train. But that the defendant, wholly disregarding its said duty, negligently maintained said platform in a dangerous and unsafe condition, in this, to wit: That at said time the defendant had allowed the planks of said platform to become rotten and decayed, and that by reason of the said rotten and decayed condition of said planks they had become worn and broken, thereby causing the surface of said platform to become rough and uneven and also causing a hole in said platform." That when said train stopped at Selma, as aforesaid. "plaintiff alighted from said train and started to walk along the said platform. That while plaintiff was walking along the said platform, and while he was exercising ordinary care for his own safety, the aforesaid rough and uneven condition of the surface of said platform and the hole therein caused plaintiff to stumble on said platform and to fall from the said platform and under the moving train of the defendant, thereby causing plaintiff's leg to be so bruised and mangled by the wheels of the defendant's said train that it afterwards became necessary to amputate said leg between the knee and ankle. Plaintiff further states that defendant's allowing the planks of said platform to become rotten and decayed, worn, and broken, thereby causing the surface of said platform to become rough and uneven and causing a hole therein, was negligence, and that such negligence directly contributed to cause plaintiff's said injury." The remaining allegations bear on the amount of damages plaintiff is entitled to recover and are laid at $15,000, for which sum plaintiff prays judgment.

The second count was like the first, except that it contained the additional allegation that "it was the duty of defendant to sufficiently light said platform; * * * that defendant had negligently failed to sufficiently light said platform, thereby preventing plaintiff (it being in the nighttime and very dark) from discovering the aforesaid condition of the planks in said platform before he had been caused to stumble thereby; that defendant's failure to sufficiently light said platform so as to enable plaintiff to see the condition of said platform was negligence and that such negligence directly contributed to cause plaintiff's said injury."

The third count was like the first, except that it alleged: "That defendant negligently maintained said platform at too great a distance from the track, thereby leaving so great a space between the said platform and the train that a person stumbling on said platform was liable to fall beneath the said train. * * * That because of the surface of said platform being in a rough and uneven condition he was caused to stumble on said platform, and because of the said platform being negligently placed as aforesaid at too great a distance from the said track, the plaintiff was thereby allowed to fall from the said platform and under the moving train of the defendant," etc. "That defendant's maintaining said platform too great a distance from said track, thereby leaving so great a space between the said platform and the said train that a person stumbling on said platform was liable to fall beneath the said train, was negligence, and that such negligence directly contributed to cause plaintiff's said injury."

The answer consisted in a general denial of the allegations contained in each of the counts. At the outset defendant's counsel objected to any testimony under the first and third counts because it is alleged that the negligence therein specified only directly contributed to the injury. The objection was overruled, and the defendant duly excepted

Plaintiff is a boy 16 years old. The evidence on his behalf tended to prove that on July 23, 1908, he traveled as a passenger for hire on one of the defendant's regular passenger trains from Festus, Mo., to Selma, Mo. Selma is not a regular passenger station in the ordinary sense of the word, nor is it a town; but W. K. Kavanaugh has a dairy farm there upon which defendant has built for him a platform 100 feet long and 8 feet wide for loading and unloading milk, and taking on and discharging passengers, most of whom are employés of Mr. Kavanaugh. There are about 25 people at Selma. Six passenger trains stopped there, but they would not stop to take on passengers unless flagged for that purpose. There is a private warehouse there, but no station building. Plaintiff, Alice Sauerhage, Sam Henderson, George O'Neill, Fred Warren, and others worked for Mr. Kavanaugh. They had been to Festus to spend the day. Returning to Selma, plaintiff and Henderson and Miss Sauerhage rode in the ladies' coach, while O'Neill and Warren rode on the back platform without paying fare. The train approached the platform at Selma from the north about 9 o'clock at night and stopped with the ladies' coach some distance north of the platform. Plaintiff, Miss Sauerhage, Sam Henderson, and others got off the south end of the ladies' coach and alighted safely upon the ground 20 feet north of the platform. O'Neill and Warren also jumped off on the other side, ran around the hind end of the train, and joined them. The north end of the platform is made high to load the milk from. It is higher than the remainder of the platform. There was a road around the east side. All of the others went around by this roadway and got up on the platform on the east side; but the plaintiff handed a bundle he was carrying to Henderson, and, going between the train and the platform, passed the high part and climbed up on the platform 15 or 20 feet from the north end. According to his testimony, O'Neill and Miss Sauerhage joined him there, having climbed upon the platform from the roadway on the east side. It was dark on the platform....