Williams v. Kansas City Terminal Railway Company
| Decision Date | 24 May 1921 |
| Citation | 231 S.W. 954,288 Mo. 11 |
| Parties | VIOLA L. WILLIAMS v. KANSAS CITY TERMINAL RAILWAY COMPANY and CHICAGO, BURLINGTON and QUINCY RAILROAD COMPANY, Appellants |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed.
Warner Dean, Langworthy, Thomson & Williams, S.W. Sawyer and John H Lathrop for appellants.
(1) Whether or not the abstract of the bill of exceptions filed in the Court of Appeals was sufficient, is no longer a question in the case because a new abstract has been filed in this court eliminating all possible deficiencies. (a) The majority opinion of the Court of Appeals deemed the abstract of the bill of exceptions insufficient because the judge's signature was not printed at the end of the bill of exceptions. As the case was certified here, it comes as if on appeal direct from the Circuit Court. Hayes v. Sheffield Ice Co., 221 S.W. 705; Art. 6, sec. 6, Const.; Keller v. Summers, 262 Mo. 331; Epstein v. Railroad, 250 Mo. 7. (2) The plaintiff failed to make out a case and the judgment should be reversed. (a) The defendants owed the plaintiff only the duty of ordinary care in respect to the condition of the station premises. Gunderman v. Ry. Co., 58 Mo.App. 370; Fullerton v. Fordyce, 121 Mo. 1; Robertson v. Wabash Railroad, 152 Mo. 382; Chase v. Railroad, 134 Mo.App. 655; Joyce v. Railway, 219 Mo. 344; Davis v. Railroad Co., 127 N.E. 66. (b) It was incumbent upon plaintiff to show not only that a condition existed which might reasonably be expected to cause an injury but that such condition was actually known to the defendants and they had had an opportunity to correct it, or had existed for such a length of time that the defendants could have known of it by the exercise of ordinary care and corrected it or had existed for such a length of time that the defendants were presumed to know it and that they had failed to correct it within a reasonable time. Abbott v. Mining Co., 112 Mo.App. 550; Clonts v. Gas light Co., 144 Mo.App. 582; Kelley v. Ry. Co., 105 Mo.App. 365; Schnatterer v. Bamberger, 79 A. 324; Toland v. Furniture Co., 56 N.E. 608; Reeves v. Fourteenth Street Store, 96 N.Y. 488; Norton v. Hudner, 100 N.E. 546; Dudley v. Abraham, 107 N.Y.S. 97; Goddard v. Ry. Co., 60 N.E. 486; DeVelin v. Swanson, 72 A. 388; Davis v. Railroad Co., 127 N.E. 66. (3) There was plain error in the instructions given by the court on behalf of the plaintiff and refusing instructions asked by the defendants so that the case must be at least reversed and remanded. See all authorities cited under point 1. Cluett v. Power Co., 220 S.W. 865; Peck v. Amusement Co., 195 S.W. 1033.
John T. Mathis and McVey & Freet for respondent.
(1) The plaintiff made a case entitling her to the verdict of the jury, as the defendants were negligent in maintaining the steps leading to the train in a muddy, wet condition, which caused plaintiff to fall, when they knew or by the exercise of care could have known of the condition in time to have remedied it prior to plaintiff's injury, and regardless of the knowledge of defendants, plaintiff is entitled to recover because she was a passenger, and the defendants owed her the duty to have the steps in a safe condition. Albin v. Ry. Co., 103 Mo.App. 316; Bledsoe v. West, 186 Mo.App. 465; Rodick v. Ry. Co., 109 Me. 530, 85 A. 42. (2) The plaintiff was a passenger under the care and control of defendants, and as such was entitled to the highest practicable degree of care from defendants, and the court was right in so instructing the jury. Stauffer v. Railroad, 243 Mo. 327; Austin v. Railroad, 149 Mo.App. 397; Albin v. Railroad, 103 Mo.App. 308; Young v. Ry. Co., 93 Mo.App. 273; McClanahan v. Railroad, 147 Mo.App. 404; Dieckman v. Ry. Co., 145 Iowa 250, 121 N.W. 676; Ry. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S.W. 254.
James T. Blair, J., dissents.
OPINIONIn Banc.
Plaintiff sues to recover for injuries received from a fall on a stairway leading from the waiting room, in the Union Station at Kansas City, down to a platform from which passengers enter trains.
Plaintiff was at the time a passenger and was on her way to a train. Her action is based on the alleged negligence of defendants in permitting the stairway at the time to be in an unsafe and dangerous condition. The petition charges the negligence in the following language:
"By reason of the negligence and carelessness of said defendants, their agents and servants, in maintaining said steps and stairway . . . in a slippery, dangerous and defective condition, plaintiff slipped on said steps and stairway and fell against the banister and steps of said stairway, thereby injuring said plaintiff as more particularly set out herein; that said defendants by the exercise of ordinary care knew or could have known of the dangerous and slippery condition of said steps."
One of the defendants answered with a general denial and a plea of contributory negligence; the other, with a general denial only.
From express and implied admissions, the following facts appeared on the trial: The Union Station at Kansas City is so constructed that there are no entrances from the street on the track level. The only way for passengers to get to the trains is to come into the station from the street, pass through a large lobby, thence into the main waiting room and from thence down one of a number of stairways leading to the platforms on the train level. From the street entrance into the station to the place where plaintiff fell is from 300 to 400 feet. The stairways are not in continuous use; each serves as a means of ingress and egress only for passengers going to and coming from certain trains; hence, as to any one of them, there may be long intervals of non-use. They are so enclosed as not to be exposed to the weather; and the train platforms are also under roof. The stairway on which plaintiff fell was constructed of concrete and iron. There were two landings; the flight from the second one to the bottom was fourteen steps. The width of the stairway was not shown, nor were the dimensions of the steps. It appears, however, that there was a banister on each side and the steps were equipped with a safety tread. The tread was a corrugated steel and lead plate which covered the entire surface of the step. The ridges, which extended lengthwise the plate paralleling the steps, consisted of steel channels filled with lead, the lead coming up to or a little above the sides of the channels. The lead, it was said, had an adhesive quality which is not affected by the lead becoming wet.
According to plaintiff's testimony: She went to the Union Station in the afternoon of December 31, 1916, to take a Burlington train for Palmyra, Missouri, due to leave at 6:20 p. m. She procured a ticket, went to the waiting room, sat down and waited for the gate to be opened. There was a crowd at the gate through which she would have to pass to go to her train. After about five minutes the gate was opened and the crowd began to go through. When she got to the gate an usher took her suit case and told her to follow him. She was carrying a baby, an umbrella and a handbag. As she was starting down the last flight of steps her right foot slipped. Just as she put her weight on her right foot, in taking a step, it slipped sideways to the left along and parallel with the step. In trying to regain her equilibrium, she caught her left foot pulling the heel off of the shoe and fell, on her back and side, about four steps. The fall caused her painful injuries. The step on which her foot slipped was wet, practically all of the steps were wet. In her language: "They were wet, and you could see the tracks of people, mud tracks I think, you could see the tracks plain, and they were wet." It was a drizzly, rainy day -- had been raining all day.
Her own testimony was all the evidence offered by plaintiff with reference to the condition of the steps. For defendants the station master and his assistant both testified that the steps were neither wet nor muddy.
At the close of the plaintiff's case in chief and again when all the evidence was in, each of the defendants asked a peremptory instruction directing a verdict in its behalf. These were refused. At the instance of the plaintiff the jury were instructed that if they found that the steps on which plaintiff slipped was wet and slippery and thereby rendered unsafe for persons walking thereon; that such condition caused plaintiff to fall and sustain injury; and that defendants knew of said condition, or by the exercise of a high degree of care could have known of the same, in time to have removed it and made the step safe before plaintiff fell, they should return a verdict for her. They were further instructed, in fact, that plaintiff was a passenger and that the defendants owed passengers the highest practicable degree of care of a very prudent person engaged in like business to prevent injury to such passengers while upon the premises and under the care of defendants.
The jury found for plaintiff, assessing her damages at $ 400, and judgment was rendered accordingly. Defendants appealed to the Kansas City Court of Appeals. The decision of that court on the appeal was deemed by one of the judges to be in conflict with decisions of this court and the cause was transferred herein conformity with the constitutional mandate.
That the trial court should have directed a verdict in their favor is the principal contention of appellants.
I. The judges of the Court of Appeals disagreed as to whether what...
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