Munsey v. Eagle Packet Co.

• Decision Date: 03 May 1932
• Docket Number: No. 21833.,21833.
• Citation: 50 S.W.2d 754
• Parties: MUNSEY v. EAGLE PACKET CO.
• Court: Missouri Court of Appeals

50 S.W.2d 754

MUNSEY v. EAGLE PACKET CO.

No. 21833.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Mary Munsey against the Eagle Packet Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Thompson, Mitchell, Thompson & Young, James R. Van Slyke, and Richmond C. Coburn, all of St. Louis, for appellant.

Allen, Moser & Marsalek and Mark D. Eagleton, all of St. Louis, for respondent.

BECKER, J.

Plaintiff, in her action for damages for injuries alleged to have been sustained while a passenger on a steamboat operated by defendant on the Mississippi river, recovered judgment in the sum of $5,000, and defendant in due course appeals.

Plaintiff had made a trip on defendant's boat from St. Louis to Cape Girardeau, and on the return trip the boat stopped at Perryville, where plaintiff, intending to attend church and preparing to leave the boat, went to the washroom and washed her hands. According to plaintiff, she called the attention of a colored maid in attendance in the washroom to the fact that there were no towels on hand; the maid left the washroom to get some towels, and upon her return the maid re-entered the washroom, collided with plaintiff, knocked her down, and caused her to suffer injuries.

Plaintiff's petition attributed her injury and damages to negligence on the part of the defendant as follows:

"Plaintiff further states that on or about the 7th day of August, 1927, plaintiff was a passenger on the aforesaid boat and whilst in the lavatory of said boat she was with great force and violence collided with and struck and knocked down by one of defendant's agents and servants, and plaintiff was directly thereby caused to sustain the hereinafter described injuries and damages, all of which directly and proximately resulted from the negligence and carelessness of defendant, acting by and through its agents and servants, in the following respects, to wit:

"1. Defendant, acting by and through its agent, servant and attendant, negligently collided with, struck and knocked down the plaintiff.

"2. Defendant negligently failed to warn plaintiff that she would or was likely to be struck as aforesaid and was in danger and not reasonably safe, when defendant, by the exercise of due care in so doing, would have thus and thereby avoided plaintiff's injury.

"3. Defendant negligently failed to discover that plaintiff was in said lavatory and in danger of being struck and injured as aforesaid.

"4. Defendant negligently employed and maintained in its employ the aforesaid agent, servant, and attendant when defendant knew, or by the exercise of ordinary care would have known, that persons, particularly plaintiff, were likely to be injured thereby."

The answer was a general denial.

We are met at the threshold of the case by appellant's contention that the trial court erred in overruling its demurrer offered at the close of the case. We have concluded this point is without merit.

Plaintiff, a woman 63 years of age at the time she met with her injuries, testified that the washroom provided for women on defendant's boat, measured about 10 by 12 feet, and that the entrance to the washroom from the companionway was by means of a door which swung inward, and that an opening without a door led from the washroom into the lavatory. The following drawing will better illustrate the situation:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff further testified that, accompanied by one of her friends, she went to the washroom and washed her hands, but, finding no towels, plaintiff said to the maid attendant, "There are no towels here," and the maid said she would bring some towels, whereupon plaintiff waited awhile, and, as the maid did not return, plaintiff stated to her friend, "I think I will dry my hands on some of this toilet paper," and "I went to reach in this way and turned around from the bowl and reached in my left arm. With that the maid came rushing in with these towels and knocked against me and knocked me over this sill that was in there and I fell right over into the lavatory. I was in the washroom, fell over this sill into the lavatory. * * * The maid, immediately after the accident, told me she was sorry."

We quote the following from plaintiff's cross-examination: "When I started to wash my hands there was no maid in the washroom, but as I finished she just happened to come in from the companionway. I said there were no towels and she said she would get some. She didn't come back, so I reached into the lavatory to get some toilet paper to wipe my hands. * * * I had not gone into the lavatory when I was struck, but had just reached one arm into the lavatory to get the paper, which I could reach from the washroom. I was collided with before I reached the paper."

In ruling upon the demurrer, we must take plaintiff's evidence as true, where not self-evidently perjured or opposed to the physics of the case, and give plaintiff the benefit of every reasonable inference of fact arising on all of the proof.

In our view, in light of the fact that the door from the companionway into the washroom opened inwardly, and was located close to the opening connecting the washroom with the lavatory, which was the only means of getting into the lavatory from the washroom, and to the bathroom beyond, and that plaintiff at the time the maid left the washroom was standing near the doorway through which the maid would have to re-enter the said washroom, and that the maid knew plaintiff's hands were wet and that she was awaiting her return with towels so that plaintiff could dry her hands, it became a question for the jury as to whether or not the maid, when she "came rushing in with the towels and knocked against" plaintiff, and knocked plaintiff over the sill that separated the washroom from the lavatory, by the exercise of due care should have discovered that plaintiff was in the lavatory and in danger of being struck by her and injured.

Holding as we do that plaintiff made out a case for the jury upon the third assignment of negligence, it follows that defendant's demurrer offered at the close of the case was properly ruled.

Defendant's demurrer being overruled, plaintiff submitted her case to the jury upon a single instruction on the measure of damages. Thus under the adjudicated cases plaintiff cannot be held to have abandoned any one or more of the alleged acts of negligence set out in her petition, but must be viewed as having submitted her case to the jury upon each and every assignment of negligence set up in her petition.

We have hereinabove set out the several assignments of negligence as they appear in plaintiff's petition, being four in number. The first of these assignments of negligence alleges that the "defendant, acting by and through its agent, servant and attendant, negligently collided with, struck and knocked down the plaintiff." Addressing ourselves to the question as to whether this is a charge of general or specific negligence, we will not endeavor to reconcile the results arrived at in the various cases wherein similar issues have arisen, for we are bound to follow the last ruling of our Supreme Court where a like question has been passed upon by that tribunal.

In the case of Porter v. Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S. W. 913, 914, the court had before it for construction an assignment of negligence set up in plaintiff's petition in the following language: "That defendant so negligently maintained and operated its said street car and street railway on which plaintiff was a passenger, as to cause, permit, and suffer said street car to collide with a large and heavy fire wagon or fire truck of the fire department of the city of St. Joseph, by...