West v. Thompson

• Decision Date: 05 May 1941
• Docket Number: No. 19822.,19822.
• Citation: 151 S.W.2d 129
• Parties: WEST v. THOMPSON.
• Court: Missouri Court of Appeals

151 S.W.2d 129

WEST v. THOMPSON.

No. 19822.

Kansas City Court of Appeals. Missouri.

May 5, 1941.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Action by Nancy West against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for injuries sustained when the plaintiff fell on an allegedly defective station platform provided by defendant for use of passengers entering or alighting from trains. From an adverse judgment defendant appeals.

Reversed.

Thomas J. Cole, of St. Louis, L. J. Bishop, of Butler, and Patterson, Chastain & Smith, of Kansas City, for appellant.

Crouch & Crouch and William M. Kimberlin, all of Harrisonville, and Poague & Poague, and Barkley M. Brock, all of Clinton, for respondent.

CAVE, Judge.

Plaintiff's action is to recover damages for injuries sustained by reason of her fall on an alleged defective station platform provided by the defendant railroad company for, among other things, use by its passengers entering or alighting from trains. She received certain injuries which need not be detailed because no complaint is made of the amount of the verdict.

The petition alleged that plaintiff had purchased a ticket at the station window and was walking along the platform intending to board the train and "while in the exercise of due care and caution, she stepped into a depression or sunken place, while she was passing over a broken and uneven place upon said platform, and her foot so turned causing her to fall * * * That the depression or sunken place in said platform, and the broken and uneven surface thereof rendered said platform defective and dangerous to persons passing over the same." The petition then alleges that such defective and dangerous condition was known to, or by the exercise of ordinary care should have been discovered by the defendant, in time to have repaired same, and the defendant carelessly and negligently permitted the said platform to be and remain in said defective and dangerous condition.

The answer was a general denial coupled with a plea of contributory negligence in that the alleged accident occurred in open daylight and that the condition of the station platform was open and obvious to the plaintiff, and that she negligently failed to observe the condition of the platform upon which she was walking, and failed to observe the alleged depression or sunken places in said platform, and that if there were any such places in said platform, they were perfectly obvious to the plaintiff; that the plaintiff carelessly and negligently ran along on said platform and failed to look where she was stepping. The reply was a general denial.

The defendant offered a demurrer, both at the close of plaintiff's evidence and at the end of the entire case; both demurrers were overruled.

Defendant assigns various errors committed in the trial of the case and such as are necessary for a decision will be noted in the opinion. The first two assignments of error are that plaintiff's evidence did not make a submissible case and that the court should have sustained the demurrer at the close of plaintiff's evidence and at the close of all the evidence. This requires an examination of the evidence pertaining to the proof of negligence as charged in the petition. The plaintiff's testimony concerning the alleged negligence is as follows: "The train I was to go on was on the second track and the train going west was on the first track and as I came out the station door Mr. Cratler came out at the same time, he is agent there and he told me I would get the train up about the crossing and I started up there and this other train was on the other track, the first track and I started up to the crossing, and I knew it wouldn't be over the crossing, but a little ways east of the crossing, and I didn't know just where I was to get on and I was walking up the platform to where the train was and I stepped into a low place that caused my ankle to turn, and I tried to catch myself, I thought I was going to fall and I stumbled again, I guess that is why people thought I was running and then I fell and I fell right on my face and this knee was injured, my left knee."

The witness then told of getting on the train and continuing her journey to Sedalia and staying over night and returning to Holden, the scene of the accident, on the next day, at which time she inspected the platform, and testified:

"I got off on the east side of the station and walked the full length of that platform. They [There] was not one low place, but many of them there in that platform.

"Q. When you got to the place where you had turned your ankle, where you had stepped into this depression, what did you find there, describe that? A. It was —

"Q. Just a minute, the question wasn't very good, describe the condition of the surface of the platform there. A. Well, there was a low place in the bricks, just a sunken place, just like it had sunken down lower than the others, I would say it was about an inch or something like that lower than the other bricks.

"Q. What was the condition of the remainder of the surface, except where these depressions were that you speak of? A. What?

"Q. The remainder of the platform other than those places? A. The other bricks were very well other than where the depressions were, but where the depressions were it was mean to walk, especially mean for anyone with bifocals, who can't see ahead.

"Q. How long have you worn these glasses, Miss West? A. I have worn them, let me see, about 11 years.

"Q. And what, if any difficulty do you experience, when you speak about wearing bifocals? A. You can see ahead, but when you look down at your feet it is mighty hard to see where you are stepping with bifocals on, anybody will tell you that.

"Q. Now, Miss West, had you ever prior to this time at any time observed these depressions in this walk? A. No, sir, I hadn't.

"Q. Prior to the time you examined them on your return from Sedalia? A. No, sir.

"Q. How far from the edge of the walk at the station platform, how far from the edge of that platform, was the edge of these depressions you stepped in? A. Well, I don't know, I imagine two or three feet from the edge of the platform.

"Q. And was that on the side next to the tracks, the railroad tracks? A. Yes, sir.

"Q. That would be to the south side of the platform? A. Yes, sir."

On cross examination, the plaintiff testified concerning the place where she fell and described it as follows:

"Q. When you went back and looked at this place you didn't find any bricks sticking up or anything like that? A. There was a low place like the bricks had been mashed down.

"Q. But it was smooth, there wasn't any place where there was one brick above the other? A. Yes, there was a low place.

"Q. How was that? A. That you could step in, I noticed that when I came back.

"Q. And you could see that yourself? A. Have you ever been there?

"Q. Yes, I have been there. I am asking you if as you walked along there if you couldn't see the low place, the same as you saw it the next day? A. Yes, because the next day I was taking particular pains to see it, and I didn't think there would be a damage suit or anything of that kind, I was merely looking to see how it was.

"Q. But as you walked along there the day you fell, if you had observed you could have seen the same as you did the next day? A. I thought I was looking close enough, but when you are going to catch a train — "Q. Were you running? A. No, sir, I was not running.

"Q. You were not? A. I stumbled several steps.

"Q. And you think that left the impression you were running? A. I think that is what did it."

Plaintiff called certain witnesses to testify concerning the condition of the platform, none of whom saw her fall or had the place of the fall pointed out. Their testimony in substance is as follows:

Mr. Hibble, who lived there in Holden and had known the platform for many years, stated that he had examined its condition some time after the accident and observed "two rows of settled places on this platform like a truck or something of that kind had been run up and down and loaded heavy, and some places the bricks have settled until now one end of the bricks are as much as an inch lower than the other end * * * We found several places there where the bricks had sunken down an inch to a half inch at different instances. I would say that condition had existed for several years. I would say the depressed places were abrupt and would be from an inch to a half inch below the surface of the adjoining bricks."

Witness Fitzgerald, who examined the platform some time after the accident, said he had observed the places where bricks had settled down past the level of other bricks and thought "it would vary from a quarter to an inch".

Witness Roberts also examined the platform after the accident, and testified that the platform would "range from smooth to an inch and a half depression at some places. * * * These depressed bricks looked more or less worn than those on either side. It looked like there had been more travel over them than the others".

Witness Angle testified that places where the trucks used to load and unload express and other articles had mashed some of the bricks down; that some of them had been mashed down and others would be pushed up and that where these places occurred "it would vary as much as two inches, that would be my guess, I don't know". In explaining what he meant by a variation of two inches in the bricks, the witness testified as follows:

"Q. You think some of the depressions would be two inches below? A. No, sir, I didn't say that.

"Q. You didn't mean that? A. The depressions with the high places, about two inches different.

"Q. Between the sunken places and the high places there might be two inches. A. Yes, sir.

"Q. That is just a guess on your part? A. Yes, sir.

"Q. You didn't measure that? A. No, sir.

"Q. You ...