Sanders v. Southern Electric Ry. Co.

• Decision Date: 23 December 1898
• Parties: SANDERS v. SOUTHERN ELECTRIC RY. CO.
• Court: Missouri Supreme Court

48 S.W. 855

147 Mo. 411

SANDERS v. SOUTHERN ELECTRIC RY. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

COLLISION WITH STREET CAR — ACTION FOR PERSONAL INJURY — EVIDENCE — CITY ORDINANCE — CREATION OF CIVIL LIABILITY — INSTRUCTIONS.

1. In an action against a street-railroad company on the ground of negligence for failure to ring a car bell, plaintiff's evidence, supported only by the testimony of one witness, who said that he did not hear any bell, though admitting that he might have been asleep, is of no force, where the contrary was testified to by seven witnesses for defendant.

2. That an ordinance defining the duty of street-railroad companies in the operation of their cars, in an action for a personal injury due to a collision with a car, was read in evidence without objection, established the fact of its adoption, but did not determine its legal effect or binding force on defendant, since that was a question of law for the court.

3. Evidence of an invalid ordinance imposing a duty on a street-railroad company in the operation of its cars is no evidence of its liability for a neglect of the duty imposed, where it is not shown that it agreed to be hound by it.

4. Proof that a street-railroad company is operating its cars on the streets of a city is not evidence that it does so under a grant or license from the city, since it might have acquired the right from the state prior to the adoption of the constitution of 1875.

5. Proof that a street-railroad company is operating its cars on the streets of a city does not show that the city, in consideration of the grant of the right to the company, required it to agree to be bound by an ordinance imposing certain duties on it in the operation of its cars, nor that it so agreed.

6. A city cannot, in the exercise of its police powers, by an ordinance imposing duties on street-railroad, companies in the operation of their cars, create a civil liability for a neglect thereof.

7. In an action for personal injuries alleged to have been caused by negligence, the court improperly refused to instruct that the charge of negligence must be proved by plaintiff to the satisfaction of the jury by a preponderance of the evidence, that they had no right to presume negligence, and that, if the evidence does not preponderate in plaintiff's favor, their verdict should be for defendant.

Appeal from circuit court, Gasconade county; Rudolph Hirzel, Judge.

Action by William Sanders against the Southern Electric Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This is an action to recover damages for personal injuries received from a collision between an electric street car and the wagon which the plaintiff was driving. It occurred at the intersection of Seventh and Hickory streets in the city of St. Louis on the 21st of August, 1893, between 7 and 8 o'clock in the morning. Seventh street is 60 feet wide, and Hickory street is 50 feet wide. Plaintiff was driving his wagon south on Seventh street, and the car was going east on Hickory street, that street having a fall of 5 feet between Eighth and Seventh streets. The negligence alleged in the petition is: First. A failure to give any signal or ring the bell when the car approached the crossing. Second. That the brakes and brake shoes on the cars were defective and worn out and loose, so that the car could not be stopped soon enough to avoid the collision. Third. That section 1275 of Ordinance 17,188 of the city of St. Louis provides that drivers, motormen, gripmen, and conductors of street cars shall keep a vigilant watch for all persons on foot, and for vehicles, either upon their railway tracks or moving towards them, and upon the first appearance of danger to such person or vehicle the car shall be stopped within the shortest time and space possible; that the motorman and conductor on this car did not keep such a vigilant watch, and failed to stop the car in the shortest time and space possible upon the first appearance of danger to plaintiff; that, in consideration of the grant by the city of St. Louis of its franchise to operate its railway and cars, the defendant undertook and agreed to obey the provisions of the ordinance, and at the time of the grant took out a license from the city to operate the cars. The answer was a general denial, and a plea of contributory negligence. Plaintiff's version of the accident is that when he reached Hickory street he stopped, looked west on Hickory street, and saw the car turning into Hickory street from Eighth street, and "I got time enough, and drove my horse on, and might get over"; that he was driving at a walk; could see and hear everything, but heard no bell; saw the motorman put the brake on the car as it came into Seventh street, but the life guard in front of the motor car struck the right hind wheel of his wagon, threw plaintiff out, and injured him very seriously; that from the time he saw the car at Eighth street until his wagon was struck he traveled 15 feet. Plaintiff's witness Stout testified that he was at the front of his house, which was 75 feet east of Seventh street, and that when plaintiff's horse had reached the north side of Hickory street the car was 150 to 200 feet west of Seventh street, on Hickory street, that the motorman did not attempt to stop the car until it was about 12 or 15 feet from the wagon, and that the motorman was talking to some one standing on the south side of the car. Another witness for plaintiff (Waggoner) testified that the car was about 40 feet away when the plaintiff's horse reached the street-car track on Hickory street, and that the motorman was speaking to two young men who were sitting with him on the front of the motor car; but on cross-examination he said he could not hear the motorman speak, or see his lips move, but "saw him have his head over to the man." James A'Hearn, another witness for plaintiff, testified that he was a passenger on the car, and was sitting on the third seat from the front, on the north side of the car; that he did not see the accident, heard no bell rung, and did not notice the car stopping before the accident. But on cross-examination he said he "was sitting there thinking, and gave no attention to whether the bell rang or not, and gave no attention at all to what was going on until the people in the car jumped up and got off"; that he "may have dozed off and been asleep at the time." Without objection by defendant the plaintiff read in evidence the fourth subdivision of section 1275, art. 6, Rev. Ord. St. Louis 1892, as follows: "The conductor, motoneer, gripman, or driver in charge 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 appearance of danger to such person or vehicles, the car shall be stopped in the shortest time and space possible." The demurrer to the evidence being overruled, the defendant duly excepted. The defendant's showing was as follows: Mrs. Hollenschmidt, a passenger on the car, seated in the third seat from the front, said that as the car neared Seventh street she saw the head of plaintiff's "horse coming from behind the building; that, as he got to the crossing, Sanders slowed up his horse, and looked out of his closed wagon, and with that he gave his horse the line and started, and that they were so close together at that time that the conductor could not stop the collision; that when Sanders looked out of his wagon the car was within 12 or 15 feet of Seventh street"; that there was not time enough after Sanders looked out, and then leaned back and gave the horse the rein, for him to get over the track; that the motorman rang the bell all the way from Eighth to Seventh street. Louis Ringling testified that he was riding on the front platform of the car; that the motorman rang the bell all the way from Eighth street to the alley, because there was a wagon on the track ahead of him; that the wagon left the track at the alley; that, "when the car was within fifteen feet of Seventh street, Sanders' wagon came to the crossing and stopped, and Sanders then hit the horse with the lines, and tried to head off the car"; that the motorman shut off the power, and applied the brakes to stop the car, but could not prevent the collision; that Hannigan was standing on the platform with him. John L. Hannigan testified substantially the same as Ringling. John F. Smith, a passenger on the car, occupying the second seat from the rear, testified to the ringing of the bell all the way from Eighth to Seventh street. Charles H. May, a passenger on the car, seated in the fourth seat from the front, testified that the bell was rung; that he "saw Sanders as he came into Hickory street, and saw him stop his horse and look, and then hit his horse to go ahead"; that "the car was then just coming into Seventh street, and when Sanders started ahead the motorman at once shut off the power and turned the brakes"; that, "when Sanders stopped, the motorman started ahead with the car, and, as soon as Sanders started again, the motorman shut off the power and applied the brakes." Peter Guyot, a passenger seated on the second seat from the rear of the car, testified to the wagon being ahead of the car from Eighth street to the alley, and to the ringing of the gong. Elmer W. Selby, the conductor of the train, testified to the wagon being ahead of the car from Eighth street to the alley, and to the ringing of the gong; that the car came slowly towards Seventh street, "and then Sanders came down on the track on Seventh street, stopped and looked out, and then whipped up his horse and tried to cross over"; that the car was about four or five feet west of Seventh street when Saunders stopped; that "the motorman then turned on the power to go forward, and so soon as Sanders hit his horse to go ahead the motorman turned off the power and put on the...