*1 1924. TEEM, Ry. F. St L.-S. Cо. Lowther opinion. Commissioner with accordance so recommends. opinion is C., PEE CUEIAM:—The Brxjere,
adopted opinion judgment of the the court. The accordingly re- city circuit of St. court Louis is pro- a trial to he remanded for versed and the cause new opinion. P. Allen, J., ceeded with accordance with this concur. Danes, JJ., and Becker Respondent, ST. LOWTHER, EVANGELINE COMPANY, RAILWAY LOUIS-SAN FRANCISCO Appellant. Appeals. Opinion May 6,
St. Louis 1924. Court of Filed Degree Maintaining Negligence: RAILROADS: Platforms: 1. Station duty Required. company passengers Care A railroad owes exercising ordinary keep maintain its railroad reasonably platforms in a safe condition. Injury by Station --: -:--:--: Platform 2. Admissibility. Stepping on Evidence Other Nails: In an Nail: injuries personal by plaintiff damages action for for sustained rusty stepped upon depot platform nail when she a on defendant’s waiting passing intending to board while she room train, other nails were when a evidence that injury competent par- show received her on located nail which caused the ticular ’ knowledge for to have had time sufficiеnt- thereof. Duty Appellate Court to Reconcile APPELLATE PRACTICE: Not appellate duty Conflicting Testimony. court to It is not testimony. conflicting reconcile Passengers: Injury at Station Platform
4. RAILROADS: Carriers Question Jury. by Stepping Negligence: for the In an Nail: injuries stepping damages personal for caused passing while from the* train, as to or not defendant room to board whether keep requires degree the law of care which exercised that platform safe, jury. held a APPEAL MISSOURI REPORTS Lowther v. St. L.-S. F.
5. INSTRUCTIONS: Railroads: Nails on Station Platform: Failure Ordinary Conflicting. Exercise Care: Instructions not In an ac- damages personal injuries tion for when sustained *2 upon stepped nail passing while train, from the room board*a instruc- predicаting plaintiff’s right tion to recover defendant’s fail- ordinary presence nails, ure to exercise the discover particularly plaintiff stepped, nail the on which not conflict did confining jury with an instruction the consideration of the particular caused as the had a right to consider the fact scattered over the determining question guilty leaving whethеr defendant nail there. 6. APPELLATE PRACTICE: Instructions: Conflict: Favorable to Appellant: Complaint. appellant complain Basis for Not An cannot instructions, where, error, of error on account of conflict if it inwas its favor. Damages: Injuries 7. DAMAGES: Excessive to Foot: $3000 Not Ex- permanent injuries cessive Under Evidence. A for $3000 verdict plaintiff’s by stepping foot caused on a nail where she suffered pain, joint injured larger intense foot was than opposite foot, grow the one on the and would continue to unless operation, growth by an held such was removed not excessive. Appellate 8. APPELLATE PRACTICE: Court Authorized to Interfere Only Clearly Appears With Verdict itWhen Unreasonable and Ex- appellate pass uрon cessive. court is not. authorized to amount verdict of the of a one is to receive or entitled jury’s respect except interfere with thereto when it clearly appears to be unreasonable and excessive. Appeal Louis.— from the Circuit Court Judge. George E. Mix,
Hon.
Affirmed. ap- F. Miller P. Evans,
W. E. T. and A. Stewart pellant.
(1) evidence The demurrer been should have requested by pеremptory sustained, and instruction all defendant at the close evidence should have given. been There was no evidence whatever to how By. F.
Lowttier L.-S. v. St. plaintiff’s contact foot came nail with which or that had been on the knowledge evi- presence substantial and no there; of its likely position it was where been in a dence that it had it оf time for such to cause reasonably exercise in the that defendant, inferred presence in time known of would have care, injury. the occurrence before to have removed Taylor Railway, 240 11; Williams v. v. Union 269 Fed. Cluett Hines, S. Bassell W. Elec. L. Cluett v. Union Elec. & P. L. Talbot, Assn. v. P. American Brew. & 220 W. S. admitting (2) evidence erred in The court Mo. 674. places at other been on the other nails had injury. plaintiff’s This prior date of and at times to the prove, probative or tend force without *3 support prove, inference, or a reasonable particular injury been on which caused nail time that in defendant, for such pres- have known of care, exercise of it before in time to have removed ence (3) jured. Taylor Railwаy, 240 Instruc- S. W. 512. v. given plaintiff, is erroneous No. at the instance 1, tion jury to consider the fact of that it authorized portions nails, times at on other prior plaintiff’s injury, and is in with instruc- conflict given which 3, defendant, tion No. the instance respect particular jury finding to a limited injury. It caused the is reversible error give conflicting 122 Mo. instructions. Baker v. (4) 583. State ex rel. v. 272 Mo. The ver- 551; Ellison, рrejudice is the result of bias dict excessive, part jury. App. Co. v. Mo. on the Ice 90 Tamm, Ry., 438; Third Ave. Barb. v. 64 202, 203; Rockwell Joseph, App. 184 Mo. v. Brown v. St. 671, 672; Brown App. Carthage, City, Pearce 189 Mo. v. Kansas 156 333; App. Spring-field, App. 230; 270; Allen v. 61 Mo. Mo. App. Biggie Conner v. Railroad, 352, 353; v. 159 Mo. 296 214 MISSOURI APPEAL REPORTS, Ky.
Kowther v. Mfg. 187 Nevada,-188 Mo. 162; 148, Co., v. Winkleblack 98. 95, Eagleton Harry Foristel.S 8. Books spondent. Evidence, (a)
(1)
All
Demurrer
thе evidence
every
must be
reasonable
there-
considered,
inference
plaintiff.
indulged
in favor of
v.
Stauffer Railroad,
(b)
justified
jury
243
305,
Mo.
The evidence
particular
long
finding
that the
nail had been there
enough
negligence.
Dry
to constitute
Palder v.
Goods
App.
251 S.
Peetz v. Transfer
198
138;
W.
Mo.
Anjou Railway,
Bailey
155;
v.
208Mass. 273;
v. Railroad,
Regan
139 N. Y.
v.
224 Mass.
302;
Railroad,
418; District
Payne, App.
(c)
of Columbia v.
13
D. C. 500.
evi-
justified
finding
general
dence
con-
negligence
dition constituted
for which the railroad
par-
would be liable to
caused
City
App.
ticular nail.
Propson
v.
Rusher
418;
71 Mo.
Aurora,
City
v.
80
Leatham,
608;
Wis.
of Latonia Hall,
v.
Ky.
Rep.
Weisenberg
City Appleton,
Law
Riley
Wis.
v. Iowa
City
Palls, 83
Iowa,
Whaley,
Bessemer v.
Lowther
possible
excluding every
required
produce evidence
Nomath
not be liable.
would
cause for
(g)
975.
W.
253 S.
v.
Cо.,
Hotel Co. Gas
-appellant
lia-
absolve
toas
unforeseeable
not so
bility.
(2) Evidence.
and therefore to refer becomes in detail. morning eighteenth August,
On 1921, 10:30 went defendant’s station at about boarding o’clockfor a train there come city into the of St. Louis. There was a train there due *5 214 MISSOURI REPORTS, APPEAR Ry.
Lowüier v. St. L.-S. F. Co. waiting time. The two about contained end. one at the west and one near the east rooms, end, bay The between the window. officelocated two had The platfоrm was about fifteen feet wide between the bay twenty window and the and about feet tracks, wide waiting between the door to the east room tracks, and the building beyond. and extended the full of the composed according was cinders plaintiff’s according and of white crushed rock evidence, to ing evidence. Plaintiff wait- defendant’s entered thе east purpose making inquiry
room for the some of the agent, concerning remaining had. ticket she After in passed waiting room a minutes, few out of the Egan, nephew— door to train. A board the Mrs. and her twelve-year-old boy, preceded plaintiff out of the door. stepped As down from the door-sill onto the right with her foot, and while her left foot step, right still on the foot came contact awith rusty nail long, about two and a half or three inches which pierced great right her shoe and the toe of her foot, puncture reaching joint. boy the bone of the The little accompanying Egan who Mrs. pull endeavored to plaintiff’s nail out of but foot, was unable to do after so, larger boy, which a еighteen years John N.'Haldane, old, pulled the nail from her foot. The nail bent rusty. immediately Haldane testified that after he noticed several nails front door. The evidence did not disclose how plain- nail which stepped platform, tiff on had daugh- been on the but plaintiff, ter of Mrs. Sheridan, over testified, objections, frequently that she had occasion to be in around oc- numerous casions seen nails on the and in the cin- large ders, pierced some of them as the nail plaintiff’s foot; that she had noticed such front along room platform; door and the whole they plain promiscuously were scattered sight and in were not imbedded the cinders but loose. v. St. Lowther *6 removing her after and boarded the train,
Plaintiff freely. bleeding very She the was noticed that toe shoe, a charge inquiry train as to the in of of those made some prepared to who was be found but none could doctor, atmet in she was Louis, her. she arrived treat When physician, by a taken to the station her husband and injection given antitet- an and where she was treated treated two serum. She afterwards anus was physiсians. inflammation infection and was an enlargement injury, causing and sulting an the joint was toe. She confined of this other defects the physician who examined this A her for three weeks. bed hap- eighteen injury nearly after the accident months pened in the an there inflammation testified that was joint a of inflammation low form which he termed chronic entering bone into the formation of the ends of the slight enlargement bony joint, a this that there was joint growth entering or the the on the end of bone un- to the foot. He also testified that this was nearest progressive injury, doubtedly permanent form, a likely get although joint larger, in- was might stopped by opera- grow larger clination tion. only offered the defendant evidence witness, Burt, who, Edward at the time agent injury, at
of the employee only point, he at the station. He tes- swept morning that on the of the he tified out waiting front of the entrance room for distance door; four or five from the that he didn’t notice feet any lying nails around on at that time; opened express packages and boxes never wеre front of Packages freight or room door. close express opened never de- were that side of the pot; daily that it a matter of routine with him to inspect building, making promises all around the inspections day, these three that he had times picked up platform; nails and on the he boards that inspection day made this tour of three times a for the APPEAL REPORTS, MISSOURI
Lowther v. St. anything up picking found oirthe kind picked up around all that he very on that side of building, found nails seldom hut three depot; chat about a surface that there was during platform; deep all over four inches years seen had never there he of service three immediate- for nails around the door that he looked nail; ly any. didn’t seе but after received requested in the nature an instruction Defendant plaintiff’s case, and also a demurrer at the close court in each which the case, the whole the close of stance refused. *7 (a) urged grounds Error in for reversal are:
The (b) fusing admit- demurrer; to sustain platform ting been on the other nails evidence that had prior plaintiff’s places to the date and times рlaintiff’s giving injury; (c) in- erred in that the court (d) is excessive. that the verdict struction No. and exercising plaintiff duty of The defendant owed keep maintain the railroad station and platform reasonably condition. This is obligation in a safe duty and as enunciated measure of defendant’s 155 State. v. [Munro Railroad, the authorities this App. Mo. S. W. v. Mo. 710, 135 Wood 181 App. v. 134 Mo. 433, Railrоad, 655, 81 S. W. Chase Joyce 114 S. 344, 118 Railroad, S. W. — Sup. Railway Terminal 21; W. Williams v. Co., Mo. Taylor City —, S. Terminal Rail- 954;W. Kansas — way App. 512.] Mo. Learned —, counsel defendant that demurrer should insists have been because was no sustained, there evidence as long particular plat- how this nail had been on the station and that ill form, it error to admit evidence the testi- was mony being platform. as to other nails found on this Plaintiff, under the facts of case, this would not be limited particular showing that the nail which caused the length was located on this a sufficient knowledge time for defendant to have had thereof, positive testimony. direct and an unfair would be This F.
Lowther v. St. L.-S. by- competent, to show however, rule. It would showing kind character other nails of the that one in were found injury, her
at the time received prior a witness had observed nails thereto some time promiscuously about scattered this kind character point. on this at this Taylor v. Kansas case of
Defendant relies supra. Railway There, Terminal piece slipped injured railway when she in a peeling corridor. floor of thе of banana banana no evidence as how any peeling evidence been nor was there there, had peelings over scattered around other banana were seen place station, corridor about pas- continuously passengers several used, preceded plaintiff prior sengers having immediately no there wаs evidence that the court held that jury, be- case would authorize submission peeling cause it not be inferred banana length plain- any definite of time before on the floor injured had a rea-' so that could have tiff was only opportunity it. to remove sonable peelings simply respecting any banana showed that case peeling having bаnana been isolated instance one found, no evidence time it *8 been there. testimony the
In instant case we have the that place in front of this found at this nails were plaintiff door at time received her while the platform by promiscuously about the were seen scattered passengers having use it occasion to on'several occasions prior to this accident. by rec- evidence offered defendant shows that it
The duty plat- ognized keep to removed from this its the nails agent testimony its the that form when of showed plat- he did remove nails and other from the obstructions inspections purpose. daily and made for that Of form, if evidence be the defendant had exer- course, true, his REPORTS, 214 MISSOURI APPEAL
Lowther v. St. L.-S. F. ordinаry keep cised However, this safe. testimony. duty conflicting it is onr not to reconcile testimony tending de- that is substantial to show respect, duty fendant had been derelict in question jury it therefore became a as to whether for degree re- or law not it care exercised which the quires under such circumstances. given request plaintiff No. 1
Instruction at the predicates right failure recover defendant’s presence to exercise care discover particularly these nail on which nails, and given request stepped, instruction de- while the at the par- jury fendant confines consideration to the plaintiff’s injury. urged ticular nail which caused It is by learned counsel defendant that instructions these сonflicting, ought were and therefore the case to be versed. But there seems to be no confiiction in these right structions. The to consider fact other nails scattered over this station question determining of whether guilty leaving defendant was nail there. If there error these instructions account con- flict, it was error can- favor, which it complain. not
It is next insisted that the verdict is excessive. We respect have heretofore set out the with facts char- to the injury plaintiff. acter of sustained In addition appears what we have above stated, suf- pain pain fered intense and still suffers times permanent to her foot which ais one. she If is on required her feet at a is time, as she be, pain. joint injured larger suffers on the foot opposite than the one foot, will continue to grow growth operation. unless such is removed pass We are not authorized to verdict, the amount of a one is entitled to receive under such jury’s circumstances, with interfere respect except clearly appears thereto, when it unreasonable and excessive.
MARCH TERM, Griggs Supt. Ex for Feeble-Minded. Parte war- not case would be of this we Under facts disturbing jury. Therefore, tbe verdict tbe ranted judgment af- tbe Commissioner recommends firmed. opinion foregoing PER CURIAM:—Tbe Nipper, adopted opinion judgment court. Tbe is as tbe of tbe
C., J., accordingly P. Allen, of tbe circuit affirmed: court T)aues, Becher and concur. JJ.,