54 S.W. 442 (Mo. 1899), Murphy v. Lindell Railway Company

Citation:54 S.W. 442, 153 Mo. 252
Opinion Judge:BRACE, P. J.
Attorney:Boyle, Priest & Lehmann and Lon O. Hocker for appellant. John T. Murphy and A. R. Taylor for respondent.
Judge Panel:BRACE, P. J. Valliant, J., concurs in the result.
Case Date:December 22, 1899
Court:Supreme Court of Missouri

Page 442

54 S.W. 442 (Mo. 1899)

153 Mo. 252




Supreme Court of Missouri, First Division

December 22, 1899

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Reversed and remanded.

Boyle, Priest & Lehmann and Lon O. Hocker for appellant.

Plaintiff's instruction 1 is erroneous in that it required defendant's servants in charge of its car, after seeing plaintiff on or near the track, to stop the same in the shortest time and space possible. The requirement to stop in the shortest time and space possible is made by a general ordinance introduced in evidence by plaintiff. This ordinance, being an enlargement of defendant's legal obligation, must have been accepted by it in order to be binding upon it. Sanders v. Street R'y, 147 Mo. 411; Moran v. Car Co., 134 Mo. 641; Fath v. Street R'y, 105 Mo. 537. No acceptance of the general ordinances of the city of St. Louis by the Lindell Railway Company was shown. Indeed, no acceptance of the general ordinances by the Taylor Avenue Railway Company, defendant's lessor, was shown. It was admitted at the trial that the latter company had accepted the provisions of the ordinance which granted it rights in the streets, as that ordinance required it to do, and which alone it required it to accept. The ordinance did not require the Taylor Avenue Railway Company to accept the terms of the general ordinances.

John T. Murphy and A. R. Taylor for respondent.

(1) In view of the admission by the counsel at the trial, that the Taylor Avenue Railroad Company did accept the provisions of the ordinance, which required it not only to obey "all general ordinances now in force, or that may hereafter be passed in reference to street railways," but to give a bond to do so, we submit that the contention of appellant, that the ordinance does not bind the defendant lessee, is futile. Before the franchise could become operative the grantee was bound to agree to obey the very ordinance read in evidence, and give bond to the city to so obey. This, it is admitted, the grantee did. (2) The first case in this State to hold that an ordinance of a city and its violation could not be introduced in evidence to support an action grounded upon the negligence of the defendant was the case of Fath v. Tower Grove & Lafayette R'y Co., 105 Mo. 543. In that case it was held for the first time that it was necessary to show that the grantee of a franchise from a city to lay its tracks and operate its cars as a street railway upon the streets of a city had agreed either expressly or by implication to obey an ordinance regulating the operation of street cars upon the streets of the city before a violation of said ordinance could be introduced as evidence of negligence in support of an action grounded upon the negligence of the defendant. This case, though not referring to the cases decided by the Supreme Court, at once overthrew all the decisions of the Supreme Court of Missouri. Beginning with Liddy v. Railroad, 40 Mo. 516, where the section of the ordinance requiring the driver and conductor of street cars to keep a vigilant watch and to stop car upon first appearance of danger within the shortest time and space possible, was upheld. This ordinance has been a part of the Revised Ordinances for thirty years. In the case of Karle v. Railroad, 55 Mo. 483, an ordinance of the city of St. Joseph, regulating the speed of trains, keeping of head-lights and the ringing of the bell, was upheld without any acceptance by the railroad. The court, by Napton, Judge, saying: "These were violations of the express law and, of course, amounted to negligence. Negligence may be asserted as a matter of law, where there has been a breach of law or a city ordinance, as in the Karle case." Norton v. Illner, 56 Mo. 352; Bowman v. Railroad, 85 Mo. 538. In the case of Keim v. Union Railway Co., 90 Mo. 314, this court held that running a train at a speed in excess of that allowed by ordinance was negligence per se and cited Karle v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678; Johnson v. Railroad, 20 N.Y. 65; Railroad v. Dunn, 78 Ill. 197. In the cases of Merz v. Railroad, 88 Mo. 676, where the power of the city of St. Louis to pass an ordinance regulating the movement of trains in the city on the private way of the railroad was sharply challenged; and this court held, citing 2 Redfield on Railways, pp. 577, 578, that the city of St. Louis had such power, even without legislative grant. The same proposition is held in Bunkman v. Railroad, 95 Mo. 241; Grube v. Railroad, 98 Mo. 336; Rafferty v. Railroad, 91 Mo. 37. We submit that the doctrine of the Fath and Sanders' cases absolves railroads from liability for injuries caused by their failure to obey ordinances of city regulating their...

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