16 S.W. 913 (Mo. 1891), Fath v. Tower Grove & LaFayette Railway

Citation:16 S.W. 913, 105 Mo. 537
Opinion Judge:Sherwood, P. J.
Party Name:Fath v. Tower Grove & LaFayette Railway, Appellant
Attorney:Hitchcock, Madill & Finkelnburg for appellant. A. R. Taylor and David Goldsmith for respondent.
Judge Panel:Sherwood, P. J. All concur, except Barclay, J.
Case Date:June 29, 1891
Court:Supreme Court of Missouri
 
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Page 913

16 S.W. 913 (Mo. 1891)

105 Mo. 537

Fath

v.

Tower Grove & LaFayette Railway, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

Certified from St. Louis Court of Appeals.

Affirmed.

Hitchcock, Madill & Finkelnburg for appellant.

(1) Clause 4 of section 1246 of article 6 of the revised ordinances of 1887, of the city of St. Louis, is void in so far as it undertakes to fix a standard of diligence or liability for negligence in civil suits at common law against street railway corporations. 39 Mo.App. 447. (2) The instructions given for plaintiff, in following the language of the city ordinance here in controversy, require a decree of diligence on the part of defendant's servants not warranted by law. The ordinance in question among other things requires defendant's servants in every case of danger to accomplish the utmost physical possibility which can be attained in stopping a car under any circumstances; a measure of diligence not required of a carrier even towards a passenger, much less in respect of a stranger. Dougherty v. Railroad, 97 Mo. 647; Doss v. Railroad, 59 Mo. 27. (3) The care incumbent on railroad companies after discovering the perilous condition of a person on the track is ordinary or reasonable care. Such is the law of Missouri. Dunkman v. Railroad, 95 Mo. 232; Guenther v. Railroad, 95 Mo. 286; Frick v. Railroad, 75 Mo. 595; Whalen v. Railroad, 60 Mo. 323, Brown v. Railroad, 50 Mo. 461. (4) A city ordinance cannot change the common-law liabilities of a civil nature between private parties, nor fix a new standard of negligence as a basis for an action on the case. Heeney v. Sprague, 11 R. I. 456; Railroad v. Ervin, 89 Penn. St. 71; Van Dyke v. Cincinnati, 1 Disney, 532; Flynn v. Canton Co., 40 Md. 612; Kirby v. Boylston, 14 Gray, 242; Jenks v. Williams, 115 Mass. 217. (5) The right of a municipality to regulate the use of its streets by railways does not authorize it to change the fundamental rules of law governing the liabilities of a civil nature -- neither to increase nor to diminish them. Ordinances must be in harmony with the general laws of the state. Railroad v. Railroad, 72 Mo. 70. (6) The grant of legislative power to the municipal assembly of the city of St. Louis is expressly limited in its charter to the enactment of ordinances "not inconsistent with the constitution, or any law of this state." Charter, art. 3, sec. 26. And the constitution provides that "such charter and amendments shall always be in harmony with and subject to the constitution and laws of Missouri." Ewing v. Hoblitzelle, 85 Mo. 64. (7) The ordinance provision here in controversy, though sometimes permitted to go unchallenged, has never been distinctly passed upon by this court. The case of Liddy v. Railroad, 40 Mo. 506, relied upon by plaintiff, is no exception to the above statement. A close examination of that case will show that the ordinance in question, though referred to in the petition, was ignored in the trial and in the instructions given, and that this court did not have it judicially before it on the appeal. (8) The instructions for plaintiff and defendant respectively are absolutely and irreconcilably contradictory on the question of negligence, so that the case was not submitted to the jury upon any intelligible theory of the law on the subject, and the case ought to be remanded for a new trial on that ground. Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612.

A. R. Taylor and David Goldsmith for respondent.

(1) The validity of the ordinance in question was sustained in Liddy v. Railroad, 40 Mo. 506. That decision has been tacitly recognized as establishing the validity of the ordinance, and it is for that reason that it has passed unchallenged, though brought before the courts in McCarthy v. Railroad, 92 Mo. 536; Dunn v. Railroad, 98 Mo. 652; Lamb v. Railroad, 33 Mo.App. (2) A street railway company has no general right of occupancy of a street; only has such right as it may obtain by special grant, and is subject to whatever limitations the granting power may attach to it. Certainly the exaction of increased vigilance on the part of the railway company toward the general public than might otherwise be requisite is in the very line of what ought to be required, and, if a municipality has the right to prescribe any condition to its grant, that should be the very first. "The right of the city to pass reasonable ordinances for the regulation and government of railways in running trains within the limits is well settled." Merz v. Railroad, 88 Mo. 676; Bergman v. Railroad, 88 Mo. 684. "A violation of any such ordinance is negligence per se; and, if personal injury to a citizen follows and results from such violation, then the cause of action of the injured party is complete."

Sherwood, P. J. All concur, except Barclay, J.

OPINION

[105 Mo. 540] Sherwood, P. J.

Action by infant, seven years of age, through next friend, for injuries received by the former, in consequence of coming in contact with one of the defendant company's cars, which was alleged to have happened by reason of the negligence of that company, and, also, because of its negligent failure to observe the requirements of subdivision 4, of section 1246, article 6, revised ordinances, 1887, of the city of St. Louis. This was the substance of the petition. Said subdivision 4 reads as follows: "Fourth. The conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and, on the first...

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