4 S.W. 670 (Mo. 1887), Dunkman v. Wabash, St. Louis & Pacific Railway Co.

Citation:4 S.W. 670, 95 Mo. 232
Opinion Judge:Ray, J.
Party Name:Dunkman, Appellant, v. Wabash, St. Louis & Pacific Railway Company
Attorney:A. R. Taylor for appellant. H. S. Priest, Geo. S. Grover and Joseph Dickson for respondent.
Judge Panel:Ray, J. Sherwood, J., dissents.
Case Date:June 06, 1887
Court:Supreme Court of Missouri

Page 670

4 S.W. 670 (Mo. 1887)

95 Mo. 232

Dunkman, Appellant,


Wabash, St. Louis & Pacific Railway Company

Supreme Court of Missouri

June 6, 1887

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

A. R. Taylor for appellant.

(1) The St. Louis court of appeals was clearly in error as to instruction number eight. (2) The modification of said instruction, as made by the trial court, was necessary to make it harmonize with instruction number two given for the plaintiff, which was the precise law. Harlan v. Railroad, 65 Mo. 22; Kelly v. Railroad, 75 Mo. 140; Scoville v. Railroad, 81 Mo. 440; Welsh v. Railroad, 81 Mo. 466; Merz v. Railroad, 88 Mo. 672; Bergman v. Railroad, 88 Mo. 678; Rine v. Railroad, 88 Mo. 392. (3) Defendant's instruction number four, given, was a correct declaration of the law upon defendant's theory of the facts. And fully presented the law of the facts to the jury. (4) The court of appeals was in error in supposing that because plaintiff, by taking a position on the car when he was at work, with his back towards the north, without constantly watching and listening for an approaching train, was guilty of contributory negligence that directly caused his injury. The instruction numbered eight, as presented by the defendant, barred plaintiff of a recovery, if such action by plaintiff "contributed directly to bring about his injury," notwithstanding, the defendant's servants failed to observe the provisions of the ordinance, when, by doing so, they would have seen plaintiff in danger, and could have averted the injury by ordinary care. Such instruction completely ignored the question, as to whether defendant's servants saw, or, by the exercise of ordinary care, would have seen and averted injury from plaintiff, notwithstanding he was negligent. Merz v. Railroad, supra; Bergman v. Railroad, supra; Rine v. Railroad, supra. (5) The plaintiff, by the facts supposed in instruction number eight, before the modification by the court, was in a better position to recover than Bergman or Merz, in that he was lawfully on the car, absorbed in his work, whilst they were trespassers upon the track, yet this court held them entitled to recover. (6) The very fact that plaintiff might be lawfully on the track and absorbed in his work, required of defendant the exercise of diligent care. Goodfellow v. Railroad, 106 Mass. 461; 2 Thompson on Neg. 461; Railroad v. State, 33 Md. 542; Stenson v. Railroad, 32 N.Y. 333. (7) There is nothing in the defence pleaded that defendant had an agreement with Donk Bros. & Company that they should have a watchman. This is no excuse for defendant's violation of the ordinance. Defendant could not relieve itself of its statute duty in this way. Speed v. Railroad, 72 Mo. 312. (8) The ordinance was valid. Merz v. Railroad, supra; Bergman v. Railroad, supra.

H. S. Priest, Geo. S. Grover and Joseph Dickson for respondent.

(1) The defendant's demurrer to plaintiff's evidence and the demurrer at the conclusion of all the testimony should have been given: (a) Because plaintiff relied solely for his ground of recovery on the violation of section 2 of ordinance number 10,305, entitled, "An ordinance to regulate the speed, within the limits of the city of St. Louis, of cars and locomotives propelled by steam power." Said section 2 relates solely to the obstruction of the street crossings by trains, the ringing of the bells on engines while in motion, and the manning of the trains while in motion. By section 13, article 3, of the charter of the city of St. Louis, of which courts are required to take judicial notice (Const. 1875, art. 9, sec. 21), it is provided that "no bill * * * shall contain more than one subject, which shall be clearly expressed in its title." The provisions of section 2 of said ordinance are neither expressed, referred to, nor comprehended in the title thereof; and hence the provisions of said section 2 are invalid and inoperative, and no cause of action can be predicated upon the violation of them, or, in other words, no cause of action was alleged or proven. Cooley's Const. Lim., (5 Ed.) p. 178, sec. 5, side p. 148; Mewherter v. Price, 11 Ind. 199; Igoe v. State, 14 Ind 239; State v. Young, 47 Ind. 150; Ryerson v. Utley, 16 Mich. 269; People v. Denahey, 20 Mich. 349; Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsley, 43 Ala. 224; Jones v. Thompson, 12 Bush, 394; Rushing v. Sebree, 12 Bush, 198; State v. Kinsella, 14 Minn. 524; Cutlip v. Sheriff, 3 W.Va. 588; State v. Squires, 26 Iowa 340. The legal effect of this ordinance was a matter alone for the determination of the court. Bartlett v. O'Donoghue, 72 Mo. 563. (b) Because of plaintiff's contributory negligence. Wharton on Neg., sec. 300, et seq.; Drain v. Railroad, 10 Mo.App. 531; Kelly v. Railroad, 11 Mo.App. 1; Renfro v. Railroad, 86 Mo. 302; Taylor v. Railroad, 86 Mo. 457; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80. (2) Instruction number one given for plaintiff was erroneous. Devitt v. Railroad, 50 Mo. 305; Yarnell v. Railroad, 75 Mo. 575. (3) Instruction number two for plaintiff is likewise erroneous. It is defective in not covering plaintiff's entire case. Koenig v. Life Ass'n, 3 Mo.App. 596; Wyatt v. Railroad, 62 Mo. 488; Raysdon v. Trumbo, 52 Mo. 35. It omits the element of knowledge on the part of defendant's servants of plaintiff's dangerous position and the failure to exercise ordinary care after becoming aware of such dangerous position. Yarnell v. Railroad, 75 Mo. 575. Such an instruction has no place in a case of this character, where the plaintiff's negligence was proximate in both time and effect. Schaabs v. Wheel Co., 56 Mo. 173; Cagney v. Railroad, 69 Mo. 424; Zimmerman v. Railroad, 71 Mo. 484; O'Brien v. McClinchy, 68 Me. 552; Murphy v. Deane,...

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