Neier v. Missouri Pacific Ry. Co.

Citation12 Mo.App. 25
PartiesJOSEPH NEIER ET UX., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Decision Date28 March 1882
CourtCourt of Appeal of Missouri (US)

1. Negligence of the plaintiff which contributes remotely to the injury will not prevent a recovery, if the defendant could, by the exercise of ordinary care and prudence, have avoided the danger.

2. If the plaintiff had timely notice of the danger, and by the exercise of ordinary care and prudence, could have avoided the injury, there can be no recovery, though the speed of the defendant's train exceeded the limit fixed by ordinance.

3. In the use of a public highway all persons are required to exercise reasonable care and prudence to avoid a collision, regard being had to the different modes of travel adopted.

4. It is improper to submit to the jury the question of the reasonableness of a city ordinance limiting the rate of speed over a railroad track laid along the streets of the city.

5. An ordinance of the city of St. Louis limiting the rate of speed of locomotives over its streets to six miles an hour, is not void as being in conflict with the franchise of the Missouri Pacific Railway Company.

6. The franchise to lay tracks along Poplar Street in the city of St. Louis, does not authorize the running of locomotives thereon at the rate of fifteen miles an hour, in violation of a city ordinance.

7. That a railroad company is authorized by the legislature to lay its tracks along the streets of a city, does not prevent such city from regulating and limiting the rate of speed of the locomotives run thereon.

8. That, under a franchise, the railroad company has laid its track with so short a curve and at such a grade that it cannot conveniently move trains at a speed fixed by ordinance, is no defence to an action for damages to an individual, occasioned by a greater rate of speed.

9. A municipal ordinance, passed in pursuance of a grant of authority, will not be declared void for unreasonableness unless it is clearly void.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

E. A. ANDREWS and H. S. PRIEST, for the appellant: The second count of the petition is fatally defective, because, within itself it does not state any cause of action.--Bliss on Code Pl., sect. 121; Clark v. Iron Co., 9 Mo. App. 446. The court, under the evidence, should have instructed the jury to return a verdict for the defendant, as requested by the defendant.-- O'Donnell v. Railroad Co., 7 Mo. App. 190; Artz v. Railroad Co., 34 Iowa, 153; Henze v. Railroad Co., 71 Mo. 638; Harlan v. Railroad Co., 64 Mo. 480; Moody v. Railroad Co., 68 Mo. 472; Purl v. Railroad Co., 72 Mo. 168; Bell v. Railroad Co., 72 Mo. 50; Thomp. on Neg. 1174, sect. 21. The court erred in giving plaintiff's instructions. They were not based upon the cause of action, the specific allegation of negligence contained in plaintiff's petition, but permitted the jury to search amongst all the circumstances and surroundings of the event, and return a verdict upon any negligence of any servant of defendant connected therewith.-- Edens v. Railroad Co., 72 Mo. 212; Waldhire v. Railroad Co., 71 Mo. 514; Price v. Railroad Co., 72 Mo. 414; Buffington v. Railroad Co., 64 Mo. 246; Leduke v. Railroad Co., 4 Mo. App. 485. The ordinance of the city of St. Louis, No. 10,305, is unreasonable, and destructive of the defendant's right of the use of its road at the place where the accident happened, and therefore violative of its charter, and not applicable to defendant upon that part of defendant's road.-- Yates v. Milwaukee, 10 Wall. 497; Austin v. Murray, 16 Pick. 126; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 228; Daniels v. Railroad Co., 62 Mo. 43; Dill. on Mun. Corp., sect. 326; Sess. Acts 1849, pp. 219-222; Sess. Acts 1851, pp. 268-273.

LOUIS GOTTSCHALK, for the respondent: The transcript, failing to show that the motion for a new trial was filed in the same term that verdict was rendered, this appeal must be dismissed.-- Walsh v. St. Louis, 12 Cent. L. J. (App.) 74; The State to use v. Bank, 6 Mo. App. 582; Moran v. January, 52 Mo. 523. The instructions of plaintiff were right, and defendant's instruction about the reasonableness of the ordinance was properly refused, as that question was not one that could be submitted to a jury. The ordinance being pleaded, was properly read in evidence, and this was the only objection to any evidence offered.-- Zimmerman v. Railroad Co., 71 Mo. 484; Cooley's Const. Lim. (3rd ed.) 200, 576; St. Louis v. Weber, 44 Mo. 547; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 228; Sess. Acts 1863-4, p. 478.

BAKEWELL, J., delivered the opinion of the court.

This was an action by husband and wife for injuries to the wife by being thrown out of a milk-wagon, in consequence of a collision with one of the locomotives of defendant on defendant's track in St. Louis. There was a verdict and judgment for plaintiffs.

There was evidence tending to show that Neier was a dairyman, and that his wife was delivering milk to customers on the morning of the accident. In making her rounds, she entered Poplar Street from Third Street about six o'clock on a morning in August. She asked about the train, and was told by the flagman that it would be round the curve almost immediately. She then drove her wagon on to a vacant lot and entered the house of an acquaintance, where she remained about a quarter of an hour. She then drove down Poplar Street and was delivering milk at a house between Main and Second Streets, when the train of the Iron Mountain Railroad, drawn by the locomotive of defendant, came round the curve from the levee, at the rate of about fifteen miles an hour. She dropped her milk, took up the lines, and attempted to drive across the track, so as to get into the alley on the other side of the street, which does not run through the block. She would possibly have accomplished her purpose, but that the horse was checked by the good-natured efforts of a passer-by, who caught the head-stall to hurry the horse over. As it was, the locomotive caught one of the hind wheels and Mrs. Neier was thrown out and permanently injured, and the wagon was wrecked.

Poplar Street at the point of collision is twenty-one feet and one inch from curb to curb. The track of defendant's road leaves eight feet between the rail and the curb on either side. The passenger cars in the train projected eighteen inches on each side over the track, which is five feet one inch between the rails. The track makes a very sharp curve from the levee to Poplar Street. The accident took place about three hundred and eighty feet from the levee, on a heavy up-grade.

Evidence was introduced tending to show that Mrs. Neier might possibly have escaped if, in her strait, she had calmly done the very wisest thing possible under the circumstances. There was also evidence tending to show that she did the best that she could do, and the best that could be done, to escape. There was evidence tending to show that the flagmen were all at their post, and did all that lay in them to signal and stop the train. Nor do we think that it can be fairly inferred from the evidence, that the engineer was guilty of any other negligent or wrongful act than that of coming round the curve at the rate of fifteen miles an hour. The testimony is, that he saw the wagon as soon as the locomotive came round the curve; that he put on the air-brake, gave a backward movement to the driving-wheel, and dropped sand on the track at once. But the track was very muddy, and it was not possible to stop the train before it reached the wagon. There is also evidence tending to show that a train of five cars, as this train was, could not, on a muddy day, be brought round the curve and up the Poplar Street grade at a rate of six miles an hour, and that the engineer came round at no higher speed than any experienced engineer would adopt to avoid probable danger of stalling the train on the Poplar Street ascent.

Plaintiffs introduced in evidence an ordinance of the city of St. Louis, No. 10,305, approved January 22, 1877, which provides that it shall be unlawful, within the limits of the city of St. Louis, for any car or locomotive propelled by steam, to run at a rate of speed greater than six miles per hour, except on tracks upon the levee from Arsenal Street to Elwood Street. The violation of the provision is made a misdemeanor subjecting the offender to fine not to exceed $500. Appellant objected to the ordinance as incompetent and irrelevant.

An instruction in the nature of a demurrer to the evidence was refused.

The court gave the case to the jury upon the following instructions, of which the last two were given at defendant's instance. There was also an instruction as to the measure of damages, not set out in the bill of exceptions:

“1. If the jury find from the evidence that plaintiff Catherine, at the time mentioned in the petition, was the wife of her co-plaintiff Joseph Neier, and that defendant, at the time and place mentioned, by its agents or employees, ran its locomotive against plaintiffs' wagon, and caused the injuries complained of, and that said collision was so caused through the negligence or carelessness of defendant or its agents in the management of its locomotive, and without any want of ordinary care on the part of said Catherine, directly contributing to the happening of said collision, then they will find for the plaintiffs.

2. Although the jury may believe from the evidence that plaintiff Catherine was guilty of some negligence or imprudence which contributed remotely to the happening of said accident, yet, if they further find from the evidence, that the...

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