Wagner v. Missouri-Kansas-Texas R. Co.

• Citation: 275 S.W.2d 262,50 A.L.R.2d 1062
• Decision Date: 10 January 1955
• Docket Number: No. 43959,MISSOURI-KANSAS-TEXAS,No. 1,43959,1
• Parties: Jesse WAGNER, Plaintiff-Respondent, v.RAILROAD COMPANY, a Corporation, Defendant-Appellant
• Court: United States State Supreme Court of Missouri

Page 262

275 S.W.2d 262

50 A.L.R.2d 1062

Jesse WAGNER, Plaintiff-Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation,

Defendant-Appellant.

No. 43959.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb, 14, 1955.

Carl S. Hoffman, St. Louis, Frank J. Rogers, Kansas City, for appellant.

Clay C. Rogers, James W. Benjamin, Kansas City, Sylvan Bruner, Pittsburg, Kan., Rogers, Field & Gentry, Kansas City, of counsel, for respondent.

COIL, Commissioner.

Plaintiff-respondent claimed to have fallen and injured his back while a passenger on defendant-appellant's train. Plaintiff had verdict and judgment thereon for $27,000 from which defendant has appealed, contending that the trial court erred: in refusing to direct a verdict for defendant at the close of all the evidence, and in instructing the jury. Defendant also contends that the verdict is excessive.

The accident occurred in Kansas, and thus the substantive law of Kansas is applicable. It is the law of Kansas that: '* * * in testing the sufficiency of evidence as against a demurrer, the court shall consider all the plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that in contradictory, * * *.' Siegrist v. Wheeler, 175 Kan. 11, 259 P.2d 223, 225. The evidence viewed in accordance with that rule justifies this statement.

Jesse Wagner, plaintiff, was a fare-paying passenger on defendant's one-coach passenger train when he entered the men's toilet room (approximately 3' X 5') at the rear corner of the coach. As one entered, there was a stool in the right far corner. Directly in front of the stool, a distance of about 17 1/2 inches, was a wash basin. Immediately to the left of the door opening and immediately across from the wash basin was a water cooler wherein water, obtained through a spigot in the aisle of the coach, was kept and cooled. Plaintiff noticed no water on the floor of the room as he entered. He sat on the stool for about 3 or 4 minutes and while there saw a puddle of water in front of and to the left of his left foot. The puddle was six inches to a foot in diameter and 1/8"' to 1/4' in depth. A slow drip of water from the cooler 'caused the puddle'. Plaintiff stood up, and as he started to pull up his overalls with both of his hands he became unbalanced due to the usual swaying and rocking of the train. To regain his balance, he stepped to his left front with his left foot into the puddle. His left foot slipped and he fell backward, striking his lower back on the edge of the stool. He returned to his coach seat and, within five minutes, reported his fall to defendant's train conductor. They went to the toilet room where plaintiff pointed out the water on the floor. At that time water was still dripping from the water cooler. The conductor obtained plaintiff's name and age and directed him to a defendant's doctor in Emporia, Kansas. Certain other details of evidence will be mentioned in connection with defendant's specific contentions.

Defendant says that a verdict for it should have been directed because: there was no sufficient evidence of the negligence alleged; even assuming such evidence, there was no evidence of actual or constructive notice to defendant of the condition of the floor or of the defective water cooler; plaintiff's testimony as to the manner in which he fell was contrary to physical fact and therefore of no probative force; and plaintiff was guilty of contributory negligence as a matter of law. Of these in the order mentioned.

Defendant correctly asserts that it was not an insurer of plaintiff's safety and that for plaintiff to recover there must have been substantive evidence of the specific negligence alleged. The Supreme Court of Kansas has stated the duty which defendant carrier owed to plaintiff passenger in these words: 'The established rule is that a carrier of passengers for hire, * * * , is required to use the greatest skill, care and foresight practicable for safety of its passengers in the preparation and management of the means of conveyance * * * it furnishes for that purpose. * * *

'It is not, however, an insurer of the safety of its passengers. * * *' Picou v. Kansas City Public Service Co., 156 Kan. 452, 456, 134 P.2d 686, 689, 690.

Defendant's argument is that there was not sufficient evidence from which the jury reasonably could find that the presence of the water caused the floor to be dangerous or slick or slippery or unsafe or in such condition as to be likely to cause one to slip and fall.

We think defendant's position is not well taken. The puddle of water was close to plaintiff's left foot; it was a substantial quantity of water; plaintiff stepped into the puddle while attempting to regain his balance which the movement of the train had caused him to lose; he said his foot slipped because of the water and that he fell because he slipped. We think this was sufficient substantive evidence from which the jury reasonably could find that the water made the portion of the floor covered by it dangerous as to passengers using the toilet facilities on a moving train.

It is true, as defendant points out, that the fact that plaintiff fell, standing alone, does not convict defendant of negligence. It is also true, as defendant contends, that plaintiff did not describe the kind of floor in the toilet room (defendant's testimony, by which plaintiff was not bound, showed that it was a rough-surfaced floor of about the consistency of concrete). And it is true that plaintiff said the soles of his shoes were slick. Plaintiff's testimony concerning his shoes was that they were work shoes. In answer to the question 'Did they have slick soles on them?', plaintiff answered 'Yes, sir.' This testimony is subject to the reasonable construction that his soles were slick to the same extent that soles of any work shoes are slick after the shoes have been worn. In any event, it is clear that, according to plaintiff, the puddle of water on the floor directly contributed to cause him to slip and fall. And, whether the floor surface was rough or smooth, the jury could reason from the facts adduced, and from their common knowledge, that a puddle of water which caused one to slip in the particular circumstances under which plaintiff slipped, constituted a condition which was likely to cause a reasonably careful person to slip and fall and that defendant so knew or in the exercise of the highest degree of care for the safety of its passengers, should have so known.

Contrary to defendant's contention as to lack of notice, there was substantial evidence from which the jury reasonably could find that defendant knew or should have known of the defective cooler and of the presence of water on the floor in time to have remedied both of the conditions prior to the time plaintiff fell. There was the direct testimony that a puddle of water of the size and depth heretofore noted had accumulated by reason of a slow drip from the water cooler and that this slow drip continued for at least five minutes following plaintiff's fall. This, in our opinion, was sufficient evidence from which the jury reasonably could infer that the water cooler had been defective long enough that defendant, in the exercise of the highest degree of care, could have remedied the defect and could have removed the water, the result of the defect, prior to plaintiff's fall. It is not necessary to discuss defendant's contention that generally 'presumptions do not run backward.' There is no necessity to indulge in any 'presumption'. The situation here is one in which the jury could properly reason from the known facts that a certain required thing or fact had existed for at least a certain length of time. Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 431, 161 S.W.2d 258, 260[1-3]. The law in Kansas is that 'Where a reasonable conclusion from the established facts and circumstances may be drawn favorable to plaintiff's case, the demurrer should be overruled notwithstanding that a reasonable conclusion might be drawn in favor of the defendant.' Deselms v. Combs, 162 Kan. 15, 16, 17, 174 P.2d 107, 108[1, 2]. And in Booker v. Kansas City Power & Light Co., 167 Kan. 327, 334, 205 P.2d 984, 990, the Kansas court said that "Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury."

We hold that it was a reasonable conclusion from the known facts (i. e., from the evidence adduced) that the water cooler had been defective long enough, and had caused a substantial amount of water to be on the floor for sufficient time, for defendant, in the exercise of the highest degree of care for the safety of its passengers, to have remedied the conditions prior to plaintiff's fall.

Nor can we agree with defendant that 'Plaintiff's testimony as to the manner in which the accident happened is contrary to physical facts.' As we understand defendant's argument in this regard, it is largely based upon the unjustified premise that only plaintiff's left foot moved and that his right foot remained stationary, thus, defendant says, making it impossible for plaintiff to have hit the middle of his back on the edge of the stool. It is true that plaintiff said that his left foot slipped and that his right foot did not slip; but plaintiff also testified that he could not remember whether his right foot moved. He also said that the entire occurrence of his fall happened 'quickly'. Thus, there is no justifiable basis for the contention that plaintiff's feet were not far enough forward when he had completed his slip to make it possible for his lower back to strike the front edge of the...