Smith v. St. Louis-San Francisco Ry. Co.

• Decision Date: 13 August 1925
• Docket Number: No. 3784.,3784.
• Citation: 275 S.W. 53
• Parties: SMITH v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

275 S.W. 53

SMITH v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3784.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by D. C. Smith against the St. Louis-San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

W. E. Glenn, of Campbell, and Smith & Zimmerman, of Kennett, for respondent.

BAILEY, J.

Plaintiff obtained judgment for damages resulting from his falling off a footbridge in the city of Campbell. Defendant has perfected its appeal to this court.

Plaintiff alleged in his petition that defendant operated a line of railroad in the city of Campbell; that it owned and used a tract of land in the city lying along Morgan street, which runs south from defendant's main track; that a small creek, 25 or 30 feet wide and 10 feet deep, intersects Morgan street and runs across defendant's land; that on the east side of Morgan, street is a footpath on this property of defendant, which path, or sidewalk, is connected at the creek by means of a footbridge, about 50 feet long and 5 feet wide, constructed and maintained by defendant; that defendant, knowing this bridge would be used by the traveling public in going to and from its station to other parts of the city, repaired the bridge from time to time, and assumed full control over its upkeep; that defendant negligently suffered, permitted, and caused the east side of said bridge to sag and become lower than the west side, rendering the same unsafe and dangerous, which the defendant knew. Plaintiff then avers that on the 9th day of June, 1923, in the nighttime and while exercising due caution, he undertook to cross said footbridge, and, while so attempting to cross, fell off the west side of said bridge to the bottom of said ditch, causing certain serious injuries, for which damages are prayed.

The answer was a general denial and a plea of contributory negligence. Defendant first alleges as error the action of the trial court in refusing defendant's ore tenus demurrer to the petition, which was offered, as usual, when the trial commenced. No connection is specifically alleged in the petition between the alleged negligence of defendant in constructing or maintaining the footbridge and plaintiff's injury. Plaintiff is undoubtedly obliged to fairly inform his adversary of the grounds of negligence upon which he would lay the foundation of liability. "If a given negligent act of the defendant has caused the injury, or has contributed to cause the injury, sued for, then it is the duty of the plaintiff, in plain terms, to allege that such act caused or contributed to cause the injury for which he seeks recompense.". State ex rel. v. Ellison (Mo. Sup.) 176 S. W. 11, loc. cit. 13.

The whole pleadings in this case indicate, however, that defendant was not misled or taken advantage of by plaintiff. The petition should be given every reasonable inference, where a demurrer of the character here involved is offered. We are of the opinion that it may be reasonably inferred and necessarily implied from the petition that the negligent construction of the bridge is alleged to have caused plaintiff to step off and thus receive his injuries. Liberal construction of pleadings under such circumstances has been recognized by a long line of decisions in this state, and, unless manifest injury has been done, we prefer to review the case on its merits.

At the close of plaintiff's case defendant demurred to the evidence, by instruction offered, upon the refusal of which, without further testimony, the case was submitted to the jury. The refusal of this instruction is assigned as error. In passing on the question we must, of course, recognize the rule that, if there is any substantial evidence to support the verdict, it will not be disturbed. While there were other allegations of negligence in plaintiff's petition, the sole issue passed upon by the jury was the alleged negligence of defendant in constructing and repairing the footbridge, so as to cause the east side thereof to sag and become lower than the west side. We shall therefore consider only such testimony as bears on that particular issue.

It may be taken as admitted that Morgan street, in the city of Campbell, at the place where the accident occurred, is a public thoroughfare, and that defendant, as an abutting property owner, is not liable for any act of omission, as it owed plaintiff no duty to maintain the footbridge in a reasonably safe condition. The liability in this case depends entirely on the question as to whether defendant created a dangerous situation, which caused plaintiff's injury. The testimony indicates that plaintiff was a man about 62 years of age on June 9, 1923, the time of the accident. The bridge in question was situated between his home and the main part of the city. He had used this bridge, on the average, two or three times per day over a period of about three years, and was familiar with its condition. The bridge is about 50 feet long and 5 feet wide, with no banisters. The distance from the floor of the bridge to the bottom of the creek, which is dry, except during rainy weather, is about 9 feet.

The city of Campbell maintained lights on Morgan street, and there was one both south and north of the bridge. There is, some doubt as to who originally built the bridge, but it was rebuilt by defendant's section crew some 8 or 10 years prior to the accident. In 1921 defendant's section men repaired the bridge, by laying a new floor and placing sleepers in it. The bridge was uneven, and in repairing it the bridge was not leveled, but the workmen left it from 4 to 6 inches lower on the east side than on the west in the center. The unevenness was caused by the rotting away of chunks of wood on which the bridge...