Robertson v. Wabash R. Co.

• Decision Date: 28 November 1899
• Parties: ROBERTSON v. WABASH R. CO.
• Court: Missouri Supreme Court

53 S.W. 1082

152 Mo. 382

ROBERTSON v. WABASH R. CO.

Supreme Court of Missouri, Division No. 2.

November 28, 1899.

DEFECTIVE DEPOT PLATFORM — PERSONAL INJURY — DEMURRER TO EVIDENCE — DOCTORS' BILLS — NEGLIGENCE — INSTRUCTION — DUTY TOWARDS INTENDED PASSENGER.

1. Where negligence charged is that a railroad company allowed a hole in its depot platform at the time and near the place where plaintiff got upon defendant's train, and that plaintiff's foot was caught therein, causing injury, a demurrer to the evidence will not be sustained on conflicting evidence as to the existence of the hole and its exact location, as the question is one for the jury.

2. In an action for personal injuries, it is error to permit the plaintiff to testify as to doctor bills, where there is no proof of their payment or of any liability incurred further than that implied from the fact of their rendition.

3. Where a petition stated that defendant railroad company, by negligently permitting a hole to remain in its depot platform, and by the negligence of its servants in extricating plaintiff from said hole, injured plaintiff, it is not error to embody in an instruction the ground of recovery based alone on the negligence in permitting said hole to be in the platform.

4. A carrier is bound only to keep a depot platform in a reasonably safe condition for passengers.

5. An instruction in a personal injury case that, if the jury find for the plaintiff, they will assess damages at such sum, not exceeding the amount claimed in the petition, as plaintiff may have sustained, and that they may consider pain resulting from the injuries, and the extent of such injuries, and expense necessarily incurred in treating them, is not erroneous, as furnishing no guide for the estimation of the amount of damages.

6. Counsel, in addressing the jury, should not comment on facts not in evidence.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Action by Rosa L. Robertson against the Wabash Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. S. Grover, J. L. Minnis, and A. H. Waller, for appellant. L. H. Waters and Busby, Jacobs, and Hale & Son, for respondent.

BURGESS, J.

This is an action for damages alleged to have been sustained by plaintiff by reason of the negligence of defendant in failing to keep its depot platform in a reasonably safe condition, and the negligence of its servants and agents in assisting her on one of its trains. There were originally two counts in the petition, but the second one was dismissed, and the case tried upon the first, which alleges that plaintiff, intending to become a passenger on one of defendant's trains, and having purchased a ticket for that purpose of said defendant, at Wakenda station, Carroll county, Mo., on the line of said defendant's road, and while walking over and upon the platform of said defendant's station as aforesaid, after dark, and for the purpose of taking passage east on the first evening train of defendant, on or about the 26th day of September, 1895, she stepped one of her feet, wholly or partially, into a hole or crack in or between the plank or planks of which said platform was constructed, and by so doing her shoe caught and held fast in said hole or crack as aforesaid; that, at said time of getting her foot fast and confined in said hole or crack, the train of defendant on which she intended to take passage as aforesaid, and upon which she did take passage at that time, had about arrived at the platform of defendant's station as aforesaid, being late and behind schedule time; that upon the arrival of the train as aforesaid, and while her foot was confined and fastened in the said hole or crack as aforesaid, the trainmen, agents, and servants of said defendant aboard of and in charge of said train, in the performance of their respective duties thereon, approached this plaintiff with loud and urgent exclamations and entreaties to her to make haste and get aboard of said train, as it was behind time, and by their said acts and conduct to her at that time gave her to understand and believe that said train was about to pull out from said station, thereby greatly exciting her unduly as to her ability to get upon said train, and, while her foot was so held and confined in said hole or crack as aforesaid, she hastily attempted to disengage her foot from said hole or crack, under the circumstances of the arrival of the train as aforesaid, and while under excitement as aforesaid, and by the means aforesaid the said trainmen and the agents and servants of defendant aforesaid seized her by the arms, body, and shoulders, and, not giving her sufficient time and opportunity to extricate her foot with safety from said hole or crack aforesaid, violently, and with force, pulled her foot out of and away from said place of detention and confinement as aforesaid. The plaintiff further alleges and charges that said defendant, its agents and servants, at said date, did not have and keep its said station platform in a reasonably safe condition for the passage of persons over it in going to and upon and from its said cars and trains as passengers; that said defendant, its agents and servants, permitted and suffered its said platform to be and remain out of repair at said time, so that the same became and was dangerous and unsafe for its said passengers to go upon and over it for the purpose of going from and upon its trains as passengers; that defendant, its agents and servants, negligently permitted the said hole or crack as aforesaid, and into which her foot was caught and held as aforesaid, to be and remain in said platform in a dangerous and unsafe condition, of which said defect and dangerous and unsafe condition of said station platform, at the time and in the manner aforesaid, said defendant, its agents and servants, had notice. The plaintiff further alleges and charges that defendant's trainmen, agents, and servants, by seizing of her as aforesaid, and at the time and in the manner aforesaid, were guilty of negligence and want of proper care in assisting her over said platform and upon the train, at the time and under the circumstances aforesaid; that by reason of the unsafe and dangerous condition of said platform as aforesaid, and the negligence of defendant, its agents and servants, in permitting it to be and remain in that condition as aforesaid, and the negligent and unskillful conduct of defendant's trainmen, agents, and servants as aforesaid, and plaintiff's foot being held and detained and extricated in the manner and by the means aforesaid, plaintiff was and is greatly injured in her said foot by a sprain in her ankle joint, and the rupture and injury to the tendons, cartilages, ligaments, and fibers of the joint in consequence thereof, and in her foot and heel, and also, as a consequence and result of said negligent acts and conduct on the part of defendant as aforesaid, some of the bones in her foot, and about her heel and ankle, were injured and broken and displaced, causing her foot, leg, and ankle to swell, become discolored and numb, and causing her to suffer great mental and bodily pain and suffering and loss of time, and inability to engage in any kind of profitable labor for her support and livelihood, by all of which she has sustained permanent injury to her body, foot, and ankle, and thereby caused and compelled her to expend money and incur liability in her efforts to effect a cure of her said injuries, and by reason of the said premises and unsafe condition of said platform, and the foregoing alleged negligent acts and conduct of defendant, its agents and servants, as aforesaid, she is damaged in the sum of $5,000, for which she asks judgment. The answer was a general denial.

At the time of the accident complained of, and at the trial, plaintiff was an unmarried lady. She was born in 1854. She had been lame in...