Taylor v. Kansas City Terminal Ry. Co.

• Decision Date: 06 March 1922
• Docket Number: No. 14240.,14240.
• Citation: 240 S.W. 512
• Parties: TAYLOR v. KANSAS CITY TERMINAL RY. CO. et al.
• Court: Missouri Court of Appeals

240 S.W. 512

TAYLOR v. KANSAS CITY TERMINAL RY. CO. et al.

No. 14240.

Kansas City Court of Appeals. Missouri.

March 6, 1922.

Rehearing Denied May 1, 1922.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by Lottie Taylor against the Kansas City Terminal Railway Company and the Director General of Railroads. From judgment for defendants, plaintiff appeals. Affirmed.

Atwood, Wickersham, Hill & Popham, of Kansas City, for appellant.

S. W. Sawyer and John H. Lathrop, both of Kansas City, for respondents.

ARNOLD, J.

Action for damages for personal injuries alleged to have been sustained by plaintiff in slipping upon a banana peeling and falling.

The record discloses that plaintiff, a woman weighing about 230 pounds, arrived at the Union Station in Kansas City, Mo., about 5 p. m., October 12, 1919, on a Wabash train from Montgomery county, Mo. On alighting from the train plaintiff, accompanied by her two daughters and a son-in-law, walked up the steps from the train platform into the west passageway, or corridor, going south in the direction of the main lobby. The son-in-law walked slightly in advance of the women and there were other persons both in front and behind them. Plaintiff had proceeded some 15 or 20 steps from the top of the steps when she slipped on a piece of banana peeling on the floor of the corridor, and fell to the concrete floor, sustaining injuries of which she complains.

The petition charges negligence in that defendant failed and neglected to keep its said platform in a reasonably safe condition, free from banana peelings and other slippery substances which might be calculated to cause passengers and persons lawfully using the place to fall and be injured, and "alleges that, by reason of being thrown in the manner aforesaid, she suffered the following painful and permanent injuries: Her left knee was wrenched, sprained, bruised, contused, and the ligaments, muscles, tendons, nerves, blood vessels, flesh, skin, tissues, and bones in and about her knee and knee joint and left leg were bruised, contused, wounded, torn, lacerated, stretched, and broken; that she has suffered and will in future suffer great pain in body and anguish of mind by reason of said injuries; that her nervous system has been shocked and permanently injured; that by reason of her said injuries she has been disabled and incapacitated from performing her ordinary duties, and her ability and capacity to work and labor has been lessened and permanently impaired," etc.

The answer is a general denial and plea of contributory negligence, The reply is a general denial. The case was tried to a jury and resulted in a verdict for defendant.

At the close of plaintiff's evidence defendant offered a demurrer thereto, which the court sustained, and thereupon a peremptory instruction to find for defendant was issued by the court, and judgment was entered upon the verdict so returned by the jury. Motion for new trial was overruled, and plaintiff appeals.

The first assignment of error is directed to the action of the court in directing a verdict for defendant; and, second, that the court erred in refusing to admit testimony of plaintiff to the effect that the banana peel appeared to have been trampled upon, and in striking out the testimony of Marie Jensen, wherein she said, "Well, it appeared it had been there some time," and in striking out the testimony of Albert Jensen that "it appeared it had been tramped a good deal and walked over," and in striking out the testimony of the same witness when he said, "Well, it was kind a damp, gummy place where the banana peel stuck."

The above are the only points in the case to be determined, and they will be taken up in the order of presentation. In support of the first assignment of error, plaintiff urges there was sufficient proof of a substantial nature to entitle her to have her case submitted to the jury.

"In reviewing the direction of a verdict for defendant, the evidence for plaintiff should be considered in its most favorable aspect." Madsen v. Insurance Co. (Mo. App.) 185 S. W. 1168; Burton v. Pryor (Mo. App.) 198 S. W. 1117; Meenach v. Crawford (Mo. Sup.) 187 S. W. 879, 882.

"It is axiomatic that a demurrer to evidence admits the fact that the evidence" tends to prove, and in passing upon it the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with propriety, have inferred in his favor, and, if when viewed in this light it is sufficient to support a verdict in his favor, the demurrer should be overruled." Pitthan v. Schnaitman, 127 Mo. App. 29, 106 S. W. 103; Montgomery v. Railroad, 181 Mo. 504, 79 S. W. 930.

Plaintiff's testimony shows that she received her injuries while walking along the corridor, a passageway provided for that purpose by defendant in the use of the Union Station at Kansas City. Her testimony also tends to show the appearance and condition of the banana peeling upon which she slipped, and its position on the corridor floor, e., that it was "dark brown, black, dark, dirty looking, brown and gritty, like it had been mashed." Plaintiff stated:

"When I first saw it I thought it was a piece of leather, because it looked so dark and black."

Counsel for plaintiff argue that the appearance and condition of the peeling thus shown was evidence from which a reasonable inference might be drawn by the jury that it had occupied this position on the floor of the corridor for such a length of time that defendant either must have known of its presence and neglected to remove it, or negligently have failed to exercise ordinary care in ascertaining its presence, and that such a showing entitled plaintiff to go to the jury.

In support of this position counsel cite the case of Anjou v. Boston Elev. R. H. Co., 208 Mass. 273, 94 N. B. 386, 21 Ann. Cas. 1143. The facts of that case are similar, but not entirely like the case at bar. There plaintiff arrived on one of defendant's cars on the upper level of the Dudley Street terminal. She walked along a narrow platform, followed and directed by a uniformed employé of defendant. She was a few feet behind him, moving toward a stairway indicated by said employé, at her request, and was injured by slipping upon a banana peeling, the discovery and removal of which was one of the duties of said employé. Witnesses who examined said peeling described it in the following terms saying it felt "dry, gritty, as if there were dirt upon it," as if "trampled over a good deal," as "flattened down and black in color; every bit of it was...