Murphy v. Lindell Railway Company

• Decision Date: 22 December 1899
• Citation: 54 S.W. 442,153 Mo. 252
• Parties: MURPHY v. LINDELL RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

54 S.W. 442

153 Mo. 252

MURPHY v. LINDELL RAILWAY COMPANY, Appellant

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 operation, and that said cases can not be upheld upon reason or authority. Again, the doctrine of the text-books is clearly to the effect that cities have the inherent police power to pass ordinances prescribing such regulations. 2 Redfield on Railways, p. 613; 2 Dillon on Mun. Corp. (4 Ed.), sec. 713; Crowley v. Railroad, 65 Ia. 663; Correll v. Railroad, 38 Ia. 123. In this last case it is expressly held that the violation of an ordinance is negligence, and that a person injured by such violation may recover for the injury caused by such violation of the ordinance. The case announces the very reasonable doctrine that all persons, in regulating their own conduct, have a right to expect, until the contrary appears, that others will perform their legal duty. This case is directly in point, for it holds that the imposition by the ordinance of a fine for its violation in no way prevents the innocent injured person from his redress for such violation of the ordinance. Bergman v. Railroad, 88 Mo. 678; Merz v. Railroad, 88 Mo. 672; Mahan v. Depot Co., 34 Minn. 29; Faber v. Railroad, 29 Minn. 465.

BRACE, P. J. Valliant, J., concurs in the result.

OPINION

BRACE, P. J.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff by being struck by one defendant's cars on the fifth day of July, 1895, while walking on defendant's track on Cottage avenue in the city of St. Louis, in which the plaintiff obtained a verdict and judgment, in the court below, for $ 3,800, and the defendant appeals.

The specific act of negligence upon which the plaintiff submitted his case to the jury is thus charged in the petition: "That at the time of said injury, there was in force within the city of St. Louis, an ordinance in revision of the ordinances of the city of St. Louis, and for the government of said city, whereby it was at said time provided that motormen and conductors in charge of defendant's cars, should keep a vigilant watch for all persons on foot either on the defendant's tracks or moving toward it, and upon the first appearance of danger to stop the car within the shortest time and space possible. And the plaintiff avers that the defendant, in consideration of the grant by the city of St. Louis of a franchise to operate its said railway and electric street cars upon said street, undertook and agreed with said city of St. Louis to observe said provisions of said ordinance. And the plaintiff further states that the defendant's servants, its motormen and conductors in charge of its said car, at the time of said injury to the plaintiff, negligently failed to keep such vigilant watch, and negligently failed to stop said car within the shortest time and space possible upon the first appearance of danger to the plaintiff while walking toward and upon defendant's railway track, which said violation of said ordinance directly contributed to his injuries as aforesaid." The answer was a general denial and a plea of contributory negligence upon which issue was joined by reply.

The general ordinance counted upon in the petition is as follows:

"The conductor, motorman, gripman, driver or any other person in charge of each car shall keep a vigilant watch for all vehicles and persons in front, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible."

The special ordinance by which it was sought to prove that the defendant had accepted the provisions of this general ordinance, is as follows:

"Sec. 7. Before availing itself of the rights and privileges granted by this ordinance said Taylor Avenue Railway Co., its successors and assigns shall file with the city register its written acceptance of all the conditions of this ordinance and shall accompany the same with its bond in the sum of $ 20,000, with two or more sureties, conditioned to hold the city of St. Louis harmless from all damages that may occur to the city by reason of the failure to comply with all the terms and conditions of this ordinance, and all general ordinances now in force, or that may hereafter be passed in reference to street railways."

It was admitted on the trial that "the Taylor Avenue Company accepted the provisions of this (special) ordinance as required by ordinance, and that the Lindell Railway Company has operated the line of railway authorized to be constructed, under lease from the Taylor Avenue Company."

The instructions asked and given for the plaintiff, except one on the measure of damages, are as follows:

"1. If the jury find from the evidence that Cottage avenue, at the places mentioned in the evidence was on the 5th day of July, 1895, an open public street, within the city of St Louis; and if the jury further find from the evidence that on said day the defendant was operating the railway and car mentioned in the evidence for the purpose of...