58 S.W. 32 (Mo. 1900), Jackson v. Kansas City, Fort Scott and Memphis Railroad Company

Citation:58 S.W. 32, 157 Mo. 621
Opinion Judge:BURGESS, J.
Party Name:JACKSON v. KANSAS CITY, FORT SCOTT AND MEMPHIS RAILROAD COMPANY, Appellant
Attorney:Wallace Pratt, W. J. Orr and I. P. Dana for appellant. A. H. Livingston for respondent.
Judge Panel:BURGESS, J. Gantt, P. J., concurs; Sherwood, J., concurs in all that is said with the exception of what is said in regard to the Fath case, from which he dissents. Keim v. Union Railway & Transit Co., 90 Mo. 314, 2 S.W. 427, was the same kind of case, and the same rule was announced. So, also, were
Case Date:June 30, 1900
Court:Supreme Court of Missouri
 
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Page 32

58 S.W. 32 (Mo. 1900)

157 Mo. 621

JACKSON

v.

KANSAS CITY, FORT SCOTT AND MEMPHIS RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 30, 1900

Appeal from Howell Circuit Court. -- Hon. Jas. Orchard, Special Judge.

Reversed.

Wallace Pratt, W. J. Orr and I. P. Dana for appellant.

(1) The case stated in the petition was a violation by defendant of a duty imposed upon it by an ordinance of the city of West Plains in running a train within the limits of the city and at a place where persons were in the habit of crossing its track at a greater rate of speed than six miles per hour. No such case was proven. For, in the first place, deceased was not crossing the track, when he was struck and killed, at a place where people were in the habit of crossing or where, so far as the record showed, anybody had ever attempted to cross before, but at a place at least 130 feet from the nearest public crossing and in defendant's yards, where there were two side-tracks, one on each side of the track on which the train was moving. At this place defendant owed deceased no duty, "except that of not wantonly or recklessly injuring him after discovering his peril." The evidence not only showed no failure in this duty, but shows affirmatively that everything possible was done to avoid injuring him. Barney v. Railroad, 126 Mo. 372; Barker v. Railroad 98 Mo. 53; Maloy v. Railroad, 84 Mo. 270; Williams v. Railroad, 96 Mo. 283; Johnson v. Railroad, 125 Mass. 75. Furthermore, no such ordinance as was referred to in the petition was attempted to be proved; the rate of speed specified in the ordinance, which the court allowed to be introduced, was ten miles per hour, not six, at such place as that where deceased was struck. It is a familiar doctrine, and this court has repeatedly decided, that a person shall be allowed to recover only upon the allegations of his petition and not upon a state of facts or a theory different from that pleaded. Dahlstrom v. Railroad, 96 Mo. 99; Yarnell v. Railroad, 113 Mo. 570; Campbell v. Railroad, 55 Kas. 536; Rutledge v. Railroad, 110 Mo. 312; Harty v. Railroad, 95 Mo. 368; Gurly v. Railroad, 93 Mo. 445. (2) The only negligence pleaded in the petition as entitling plaintiff to recover from defendant was the failure to comply with an ordinance alleged to be in force, regulating the speed of railroad trains within the corporate limits of the city of West Plains, and making it unlawful for them to run within said limits at a greater rate of speed than that specified in the petition. This did not state a cause of action against defendant for the reason that it did not show the existence of a civil duty owed by defendant to deceased and enforcible against it at common law. There was no allegation in the petition of any contract between defendant and the city to comply with the regulations pleaded; nothing to show that defendant had ever accepted anything from the city conditioned upon its compliance with such regulations, and hence, as stated above, no duty to deceased was imposed upon defendant by this alleged ordinance and no civil rights enforcible at common law were conferred thereby upon deceased or his wife or any individual citizen of West Plains. Fath v. Railroad, 105 Mo. 545; Senn v. Railroad, 108 Mo. 152; Sanders v. Railroad, 147 Mo. 426; Byington v. Railroad, 147 Mo. 673; Moran v. Car Co., 134 Mo. 641; Railroad v. Ervin, 89 Pa. St. 71; Railroad v. Boyer, 97 Pa. St. 91; Heeney v. Sprague, 11 R. I. 456; Flynn v. Canton Co., 40 Md. 312; VanDyke v. City, 1 Disney, 532; Chambers v. Trust Company, 1 Disney, 327. Furthermore, the petition contained no averment as to whether West Plains was incorporated under the general laws or had a special charter; nor as to the class to which it belonged; indeed, there was no allegation of any incorporation whatever. This left the petition without any averment showing the existence of a power to pass any kind of an ordinance. Town of Butler v. Robinson, 75 Mo. 192; State ex rel. v. Sherman, 42 Mo. 214. (3) No ordinance regulating the rate of speed of defendant's trains was proven by competent proof. The section which the mayor read, over defendant's objection, should not have been allowed in evidence for several reasons: There was no allegation or proof of any incorporation of West Plains, and hence no foundation on which to base proof of any ordinance. Town of Butler v. Robinson, 75 Mo. 192; State ex rel. v. Sherman, 42 Mo. 214. There was no proof that the alleged ordinance was properly passed, nor that it was in force, both of which were essential. Cox v. St. Louis, 11 Mo. 431; Mooney v. Kennett, 19 Mo. 551; State v. Sherman, 42 Mo. 214.

A. H. Livingston for respondent.

(1) That the train that struck and killed the deceased, was being run at a prohibited and unlawful rate of speed through the city of West Plains, is hardly denied. The jury so found, and could not have found otherwise under the evidence. That appellant was guilty of negligence per se in this respect, is held by all authority. Keim v. Railroad, 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Grube v. Railroad, 98 Mo. 330; Kellny v. Railroad, 101 Mo. 67; Murray v. Railroad, 101 Mo. 236; Gratiot v. Railroad, 116 Mo. 450; Prewitt v. Railroad, 134 Mo. 615. That cities have the right to regulate the rate of speed of railroad trains within the city limits is sustained by all authority. Prewitt v. Railroad, 134 Mo. 615. (2) That the deceased, Jackson, from the infirmity of extreme old age had wholly lost his reason, and was non compos mentis, is not denied or disputed. Then he was incapable of committing contributory negligence, and was not chargeable therewith. Beach Con. Neg. (2 Ed.), sec. 36; Bolin v. Railroad, 36 Mo. 485; O'Flaherty v. Railroad, 45 Mo. 70; Wharton on Neg. (2 Ed.), secs. 87, 88, 306; 2 Jaggard on Torts, p. 871, sec. 253. (3) The court would have been justified in directing the jury to return a verdict for the plaintiff. It is true that the defendant, in a manner, set up contributory negligence on part of plaintiff, and if this could be a defense, it was completely swept away by the testimony of plaintiff without objection thereto. On the facts the court could, as a matter of law, declare the deceased incapable of contributory negligence. But the whole case was fairly submitted to the jury by plaintiff's instructions. Schmitz v. Railroad, 119 Mo. 256; Payne v. Railroad, 129 Mo. 405. (4) Appellant's attorneys contend that there is no evidence that West Plains is a city of the fourth class. They surely do not desire to deceive the court, and their ability and advantages of research would indicate that they ought to know the law on this point, but it seems they do not. All courts of this State take judicial notice of this fact. R. S. 1889, sec. 1579; Brookfield v. Tooey, 141 Mo. 619; Savannah v. Dickey, 33 Mo.App. 522. The court did not err in permitting the introduction of the ordinance. The journal of the board of aldermen was the very best evidence of its existence, and the mayor or any one else familiar with the records, could identify it. The mayor signs all ordinances. R. S. 1889, secs. 1600 and 1601; Stewart v. City, 79 Mo. 603; Town of Tipton v. Norman. 72 Mo. 380; City of Clarence v. Patrick, 54 Mo.App. 462; Beach on Pub. Corporations, sec. 505.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., concurs in all that is said with the exception of what is said in regard to the Fath case, from which he dissents.

OPINION

Page 33

[157 Mo. 627] BURGESS, J.

This is an action by the widow of Samuel Jackson, deceased, to recover of defendant the sum of five thousand dollars for the death of her husband, which occurred June 12, 1895, at West Plains, Missouri, through being struck by one of defendant's passenger trains as he was walking across the railroad track in its yards at that place.

The petition alleged "that on said day and long prior thereto there was duly passed and in force an ordinance in the said city of West Plains, regulating the speed of railroad trains and cars within the corporate limits of said city, and prohibiting and making it unlawful for trains and cars to be run within said corporate limits at a greater rate of speed than six miles per hour; that on the said twelfth day of June, 1895, the said Samuel Jackson started across defendant's said railroad track near its depot in said city of West Plains and within the corporate limits of said city, and at a point where divers persons ever have and do cross said track, and while so crossing said track and just as he was across and leaving the same, he, the said Samuel Jackson, was struck and instantly killed by one of defendant's passenger trains, then and there being run and operated by defendant's agents, servants and employees; that the said Samuel Jackson was, at the time of his death, eighty-eight years of age, and feeble and infirm in body and in mind; that at the time said Jackson was struck and killed as aforesaid by defendant's train of cars as aforesaid, the said train was being run negligently and carelessly at a great rate of speed, and far in excess of six miles per hour. Plaintiff says that by reason of the negligence and carelessness of defendant's agents, servants and employees, in running and operating said passenger train at a great and rapid speed and in violation of said ordinance in said city of West Plains, the said Samuel Jackson [157 Mo. 628] was struck and killed, by reason of which plaintiff says she is damaged in the sum of five thousand dollars, for which she prays judgment."

The defenses were a general denial, that deceased was a trespasser upon defendant's tracks, that his death resulted from his own negligence, and negligence upon the part of plaintiff in permitting her husband to wander...

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