49 S.W. 876 (Mo. 1899), Byington v. St. Louis Railroad Company

Citation:49 S.W. 876, 147 Mo. 673
Opinion Judge:MARSHALL, J.
Party Name:Byington, Appellant, v. St. Louis Railroad Company
Attorney:John J. O'Connor for appellant. Smith P. Galt for respondent.
Case Date:February 15, 1899
Court:Supreme Court of Missouri

Page 876

49 S.W. 876 (Mo. 1899)

147 Mo. 673

Byington, Appellant,


St. Louis Railroad Company

Supreme Court of Missouri, First Division

February 15, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Pembrook R. Flitcraft, Judge.


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...

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