61 S.W. 626 (Mo. 1901), Ruschenberg v. Southern Electric Railroad Company

Citation:61 S.W. 626, 161 Mo. 70
Opinion Judge:GANTT, J.
Party Name:RUSCHENBERG, Appellant, v. SOUTHERN ELECTRIC RAILROAD COMPANY
Attorney:Young & Altheimer and Wm. H. Reynolds for appellant. Lubke & Muench for respondent.
Judge Panel:GANTT, J. Sherwood, P. J., and Burgess, J., concur. Sherwood, P. J., and Burgess, J., concur.
Case Date:March 12, 1901
Court:Supreme Court of Missouri
 
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Page 626

61 S.W. 626 (Mo. 1901)

161 Mo. 70

RUSCHENBERG, Appellant,

v.

SOUTHERN ELECTRIC RAILROAD COMPANY

Supreme Court of Missouri, Second Division

March 12, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer, Judge.

Affirmed.

Young & Altheimer and Wm. H. Reynolds for appellant.

(1) Witness Reeves ought to have been allowed to testify to the declaration of the motorman made immediately after the car had stopped, and before the boy was taken from under the car, and while efforts were being made to get him out from under the car, as to the exact cause of the injury. Such a declaration was admissible as a part of the res gestae. 1 Greenleaf on Evidence, sec. 108; 21 Am. and Eng. Ency. of Law, 99; Railroad v. Coyle, 57 Pa. St. 402; Leahy v. Railroad, 97 Mo. 172. One of the main issues in this case was whether the car which struck deceased was stopped in the shortest time and space possible according to the city ordinance read in evidence. Appellant was not permitted to show what means should have been used to have stopped said car in the shortest time and space possible in compliance with said ordinance. This was manifestly erroneous. (2) The regulation of the speed of street cars in the city of St. Louis can only be done by ordinance. Art. 3, sec. 26, subdiv. 5, charter, R. S. 1889, p. 2097; Chicago v. Rumpff, 45 Ill. 90. A city can not accomplish by an order that which, under its charter, can be done only by an ordinance. Trenton v. Coyle, 107 Mo. 193. A contract in the nature of an invalid ordinance, although supported by a valuable consideration, is also invalid. Waterworks v. Lamar, 128 Mo. 188. Instruction 8 given by the court on behalf of the defendant, with a slight modification, is clearly erroneous. Art. 3, sec. 28, charter, R. S. 1889, p. 2100; R. S. 1889, secs. 1186-1187; State ex rel. v. Schweickardt, 109 Mo. 507; LaMoine v. St. Louis, 72 Mo. 404; St. Louis v. Wetzel, 130 Mo. 600; State v. Chambers, 70 Mo. 627; Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 27; Schumacher v. St. Louis, 3 Mo.App. 279. (3) Instructions given by the court upon its own motion as to the duty of the deceased, misled the jury and imposed a higher duty upon the deceased than that warranted by sound law. Spillane v. Railroad, 135 Mo. 414. (4) Instruction 1, asked for by plaintiff and refused by the court, should have been given to the jury. Spillane v. Railroad, 135 Mo. 414. Instructions 2, 4, 6, 7 and 8, asked for by plaintiff, and refused by the court should have been read to the jury. Art. 3, sec. 28, charter, R. S. 1889, p. 2100. Sec. 1275, subdiv. 10 R. O. 1892, provides that "No car shall be drawn at a greater rate of speed than 8 miles per hour." (5) Jurors Rufus J. Lackland Jr., and Nathaniel T. Lane were incompetent. State to use v. Bank, 10 Mo.App. 482; s. c., 80 Mo. 626; R. S. 1889, sec. 6083; Mahoney v. Railroad, 108 Mo. 197; Coppersmith v. Railroad, 51 Mo.App. 365.

Lubke & Muench for respondent.

(1) The finding of the trial judge as to the qualification of a juror, when supported by evidence, will not be reviewed on appeal. This has always been and still is the ruling of the appellate courts in such cases. McCarthy v. Railroad, 92 Mo. 536; State v. Cunningham, 100 Mo. 382; State ex rel. v. Bank, 80 Mo. 633; Mahany v. Railroad, 108 Mo. 199; Coppersmith v. Railroad, 51 Mo.App. 365. (2) The appellant insists that the declarations, which the motorman is supposed to have made at the time stated by the witness, were part of the res gestae; and his counsel rely upon the decision of this court in Leahy v. Railroad, 97 Mo. 172, to support their contention. Counsel are again unfortunate in making their citation, because this court in the Leahy case very materially contracted the rule which had been theretofore followed in this State in admitting declarations as being of the res gestae. It reversed the action of the trial court in admitting declarations of the person injured while he was being carried away from the scene of the accident, although the earlier decision of the Supreme Court in Harriman v. Stowe, 57 Mo. 93, rendered these declarations clearly admissible. The court in the Leahy case reaffirmed its ruling in Adams v. Railroad, 74 Mo. 553, which fits precisely to the case at bar. Senn v. Railroad, 108 Mo. 142; Devlin v. Railroad, 87 Mo. 545; Barker v. Railroad, 126 Mo. 143; State v. Rider, 95 Mo. 474; Bevis v. Railroad, 26 Mo.App. 22. (3) Meyers, after having been fully interrogated as to how and in what distance an electric car, going at the rate of eight miles per hour, could be stopped, was asked, "What means would you employ, as a motorman, to stop a car in the shortest time and space possible?" Defendant's counsel objected to this question as incompetent and leading. Of course, defendant company never contracted, or in any manner undertook, either expressly or by implication, to run its cars or to stop them according to the rules which this witness might lay down. Gutridge v. Railroad, 94 Mo. 468; Longston v. Railroad, 147 Mo. 458. (4) Section 28 of art. 3 of the charter, relating to ordinances generally, must be read in connection with all of article 10 of the charter. This article invests the municipal assembly and mayor with full authority and power to contract by ordinance in relation to street railroads accordingly as the growth of the city or other conditions may demand. The charter treats the entire subject specially. Railroad v. Railroad, 105 Mo. 562; Railroad v. Railroad, 105 Mo. 578; Railroad v. Railroad, 132 Mo. 34. It follows, therefore, that section 28 of article 3 of the charter relating to ordinances generally must give way to the article relating specially to "street railroads," and that an ordinance passed in conformity with the latter can not be impaired or destroyed by the former. The familiar rule that "a general prohibition is not inconsistent with a special indulgence, and a special indulgence is not repealed by a general prohibition though the latter is subsequent in time," has application here. Alexander v. St. Louis, 23 Mo. 483; Smith v. Clark County, 54 Mo. 69; State v. Green, 87 Mo. 583; State ex rel. v. Schweickardt, 109 Mo. 496.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

[161 Mo. 75] GANTT, J.

Plaintiff's son, aged six years and three months, while attempting to cross in front of an electric street car, was killed on defendant's track, on South Broadway in the city of St. Louis, May 21, 1897, and this action was brought to recover the statutory penalty of $ 5,000.

There was a verdict and a judgment for defendant and plaintiff appeals.

In his second amended petition plaintiff charged that the death of the boy was caused by defendant's car going south; that the motorman failed to keep a proper and vigilant lookout, and failed to exercise ordinary care to stop the car in time to avoid running against the boy; that subdivisions 4 and 10 of General Ordinance 1275 of the Revised Ordinances of the city of St. Louis of 1892 [161 Mo. 76] were then in force, and that thereby the operators of street cars were required to keep a vigilant watch for...

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