Byington v. St. Louis Railroad Company
| Decision Date | 15 February 1899 |
| Citation | 49 S.W. 876,147 Mo. 673 |
| Parties | Byington, Appellant, v. St. Louis Railroad Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Pembrook R Flitcraft, Judge.
Affirmed.
John J O'Connor for appellant.
(1) This court upon an appeal from a judgment granting a new trial, will only consider the correctness of the grounds specified in writing by the trial judge for sustaining the motion for a new trial. If they are unsound this court will reverse and direct the trial court to enter up judgment on the verdict. Herdler v. Buck's Stove and Range Co., 136 Mo. 8; Miller v. Madison Car Co., 130 Mo. 517; Candee v. Railroad, 130 Mo. 142; Bradley v. Reppell, 133 Mo. 545. (2) This action is not based upon the city ordinance, set out in the petition in the sense that the right of action flows from the ordinance as held by the trial court, but upon the common law. Such ordinance alone can give no right of action, but as the ordinance regulated the stopping and starting of defendant's car to let on and off passengers, the violation of such ordinance as shown by the evidence, was negligence per se on defendant's part. Hanlon v Railroad, 104 Mo. 381; Gratiot v. Railroad, 116 Mo. 450; Gass v. Railroad, 57 Mo.App. 574; Windsor v. Railroad, 45 Mo.App. 123; Skinner v. Stifle, 55 Mo.App. 9; Sandifer v. Lynn, 52 Mo.App. 553. And the negligence involved in the violation of the ordinance, having led to plaintiff's injuries under circumstances which give her a right of action at the common law, it was proper to plead and read in evidence the ordinance to show defendant's guilt of negligence in starting the car before plaintiff could by the exercise of ordinary care alight safely. Senn v. Railroad, 135 Mo. 517; Myers v. Kansas City, 108 Mo. 480; O'Neil v. Young, 58 Mo.App. 630.
Smith P. Galt for respondent.
The suit is bottomed on the ordinance. Appellant, in her brief, says that her right of action is not based upon the city ordinance, because she could recover under the common law. It matters not one particle, whether she could recover under the common law or not, if she had thought proper to limit her right to recover to the principles of the common law applicable to the relation of carrier and passenger. She saw fit to eschew or waive her rights under the common law, and sought to make a stronger case by basing her right of recovery upon the city ordinance, which she pleads in full in her petition and then alleges that, "plaintiff says that her injuries are due to and were caused by the negligence of defendant in violating said ordinance," etc., and appellant's instruction number one is bottomed for recovery upon said ordinance. Even if the court did not err in the admitting of the ordinance in evidence over plaintiff's objection, and exception saved, said ordinance gave the plaintiff no right of recovery at all, and plaintiff's instruction number one was error, which permitted plaintiff to recover under said ordinance, as there was no proof thereof whatever that said ordinance had ever been accepted by the defendant. Sanders v. Railroad, ante, page 411. And for the same reason there was no cause of action stated in the petition, no facts stated, which showed any liability on the part of defendant, and of course respondent's instruction number 1 was erroneous.
Appeal from an order granting defendant a new trial.
The petition alleges that on the 1st of September, 1893, there was in force, "and binding on the defendant herein," in the city of St. Louis, an ordinance numbered 16,578, regulating the running of street cars, which provided, inter alia, as follows: That on said day plaintiff was a passenger on one of defendant's train of cable cars, on Broadway, and when the train neared Morgan street she "signaled said conductor to stop the car and let her alight, that said car was stopped at the north side of said Morgan street, that while the said car was standing still plaintiff attempted to alight, and while in the act of alighting defendant negligently caused said car to be put in motion whereby plaintiff was thrown to the stone paving of the street," and was seriously injured. "Plaintiff says that her injuries are due to and were caused by the negligence of defendant in violating said ordinance in failing to keep said cars remaining stationary for a sufficient length of time to enable her to safely leave said car, and in negligently permitting said car to be put in motion while she was in the act of leaving said car and before she could by the exercise of ordinary care alight therefrom safely." The answer was a general denial and a plea of contributory negligence, which the reply denied.
On the trial plaintiff introduced evidence in support of the allegations in her petition, and then offered, and the court admitted, over the objection and exception of defendant, the ordinance regulation quoted.
At the instance of the plaintiff the court instructed the jury as follows: "The court instructs the jury that the ordinance of the city of St. Louis read in evidence was in force and binding on defendant and its servants at the time plaintiff received her said injuries, and if they find from the evidence that plaintiff was a passenger on defendant's said car in question, and that she signaled the conductor of said car to stop the car and let her alight by shaking her hand at him, as the car approached Morgan street, and that he saw her signal and caused the car to stop at the north side of Morgan street, and that while said car was so stopped and standing still, she attempted to alight from said car, and that...
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