Hutchinson v. Missouri Pacific Railway Company

• Decision Date: 26 March 1901
• Parties: HUTCHINSON et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY
• Court: Missouri Supreme Court

61 S.W. 635

161 Mo. 246

HUTCHINSON et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Missouri, First Division

March 26, 1901 ^[*]

Rehearing Denied 161 Mo. 246 at 256.

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and Remanded.

A. R Taylor for appellants.

(1) The evidence clearly showed that plaintiff's mother was in the situation of a passenger, entitled to the same degree of care from the defendant as if she was actually upon the train. She had bought her ticket and was on her way to the platform about the time that the train she was to take was due, when another train of defendant, running at an excessive and prohibited rate of speed, ran against and killed her. Railroad v. Anderson, 72 Md. 527. (2) The negligence of the defendant in running its train past a passenger station at a high rate of speed at the time that the passenger accommodation train was due, was in itself gross negligence. Terry v. Jewell, 84 N.Y. 338; Brassfield v. Railroad, 84 N.Y. 241; Jewell v Railroad, 4 American N. Y. Rep. 541. A failure by the deceased to watch for a train while passing over to the platform, if it be true that she did so fail, can not be declared negligence as a matter of law. Railroad v. Anderson, 72 Md. 530; Mayo v. Railroad, 104 Mass. 142; Sonier v. Railroad, 141 Mass. 14. It is true that the evidence showed that deceased, when she left the station room, on the north side of the tracks, saw the headlight of the train at Ellendale, a half mile away; but she supposed, and had every reason to suppose, that it was the accommodation train for which she held a ticket, entitling her to ride as a passenger upon. It was the time of the accommodation train. It was due there at the time. The deceased acted upon this assurance, as did the other passengers there in waiting. She had no reason to expect another train to run by the depot, and certainly not at such speed, upon the time of the accommodation train. (3) We do not know whether the decisions of this court in Sanders v. Railroad, 147 Mo. 411, and Byington v. Railroad, 147 Mo. 673, holding that the ordinances of the city of St. Louis, limiting speed in the limits of the city and requiring the bell to be rung, when violated, can not be invoked as evidence of negligence, unless the railroad has agreed to obey the law, is to apply to steam railroads as well as street railroads. Of course, there was no agreement by the railroad to obey these ordinance provisions, and it would scarcely be expected that it would voluntarily assume the duty and responsibilities arising therefrom. We believe there is no recorded incident of a railroad so doing. Yet all the courts of the United States, Federal and State, have held that a violation of an ordinance regulating the speed was evidence of negligence -- some courts holding that such violation was evidence of negligence -- the greater number, including those of Missouri, holding, up to the time of the Fath case, 105 Mo. 537, that the violation of the ordinance is negligence per se, which is the correct rule. Beginning with: Karle v. Railroad, 55 Mo. 483; Bowman v. Railroad, 85 Mo.; Eswin v. Railroad, 96 Mo. 290; Schlereth v. Railroad, 96 Mo. 509; Hanlon v. Railroad, 104 Mo. 381; Merz v. Railroad, 88 Mo. 672; Rafferty v. Railroad, 91 Mo. 33; Grube v. Railroad, 98 Mo. 336; Easly v. Railroad, 113 Mo. 236; Gratiot v. Railroad, 116 Mo. 450; Prewett v. Railroad, 134 Mo. 625. So that, if any question of law could be said to have been settled by decision, it was settled in this State that a violation of an ordinance of a city empowered to pass it was negligence per se. (4) There was no evidence of negligence on the part of deceased, certainly no conclusive evidence of negligence such as the court could declare as a matter of law. A party can not be convicted of negligence for not anticipating the negligence of another. If the ordinance was valid, deceased had a right to rely upon its obedience by the defendant. Petty v. Railroad, 88 Mo. 306; Eswin v. Railroad, 96 Mo. 290; Crumpley v. Railroad, 111 Mo. 152; Jennings v. Railroad 112 Mo. 268; Sullivan v. Railroad, 117 Mo. 214; Gratiot v. Railroad, 116 Mo. 450; Brannock v. Elmore, 114 Mo. 55.

Martin L. Clardy for respondent.

(1) There is no ground for the assumption that a person about to cross a track to take a train is relieved from the duty to use his senses vigilantly to avoid danger. Boyd v. Railroad, 105 Mo. 371; Kreis v. Railroad, 148 Mo. 321. (2) The argument is made that, if the train had not run at a rate of speed in excess of the ordinance limit, the collision would not have occurred. The better authority is that a person who sees a train coming, especially when it is near at hand, can not rely upon the persons in charge of it observing a requirement of law prescribing a given rate of speed. Sullivan v. Railroad, 117 Mo. 214; Weller v. Railroad, 120 Mo. 635. (3) But the ordinance is not effective to create a civil liability on the part of one citizen to another. "A city can not, under the guise of the exercise of its police powers, create liability from one citizen to another or create a civil duty enforcible at common law." Sanders v. Railroad, 147 Mo. 411; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 105 Mo. 252; Fath v. Railroad, 105 Mo. 337; Senn v. Railroad, 108 Mo. 142; Holwerson v. Railroad, 57 S.W. 770. "The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives to be styled the General Assembly of the State of Missouri," says the Constitution, section 1, article 4. Opinion of S.Ct. Judges on Township Organization Law, 55 Mo. 295; State ex rel. v. Wilcox, 45 Mo. 458; Bartow v. Himrod, 4 Seld. 483; State v. Field, 17 Mo. 529; Cooley's Constitutional Limitations, pp. 260, 261.

VALLIANT J. Burgess, C. J., Brace and Gantt, JJ., concurring in said opinion. Robinson, Sherwood and Marshall, JJ., dissenting.

OPINION

In Banc

VALLIANT, J.

This is a suit for damages for the killing of plaintiffs' mother, which they allege was caused by the negligence of defendant. The plaintiffs are minors, suing by their next friend; their mother was a widow.

The allegations of the petition are, that the plaintiffs' mother, on January 3, 1892, was struck and instantly killed by an engine drawing a passenger train within the limits of the city of St. Louis, while she was in the act of crossnig the track at a passenger station, with a view of reaching a platform provided by defendant for that purpose, from which she intended taking passage on a train of defendant. The acts of negligence charged are, that the defendant ran its engine and cars without ringing the bell for the crossing as the statute requires, and ran the train at the speed of thirty miles an hour within the city, in violation of an ordinance of the city, which provided that it was unlawful to run it at a higher rate than six miles an hour. The prayer of the petition is for judgment for $ 5,000.

The answer admits that the ordinance was in force at the time of the accident, but avers that it was repealed in 1893, denies all other allegations, and sets up a plea of contributory negligence, which is denied by the reply.

The evidence for plaintiff tended to show the following:

Benton where the accident occurred, is a station on defendant's road in the western part of the city. Defendant has a station house there on the north side of its tracks, for the accommodation of its passengers; it has double tracks, the north track for the west-bound and the south for the east-bound trains. There was a platform on each side of the tracks, that on the south side being designed for passengers taking the east-bound trains. To go from the station house to the south platform one would cross both tracks. On January 3, 1892, Mrs. Hutchinson, the plaintiffs' mother, came to this station with the purpose of taking the accommodation train, as it was called, going east, which train was due there at 6:38 p. m. The exact time of her arrival at the station is not established, but is approximately given. It was stated that she had left the house of her daughter to go to the station about six o'clock, and the distance was about a half mile. A witness, Mr. Banghart, who was in the station with her, estimated it to be about 6:20 p. m., when they heard the whistle and she and he went out of the station together to cross over to the south platform. Another witness thought it was within three or five minutes of the time for the accommodation train. Ellendale is a station a half mile to the west. A train at Ellendale coming east could be clearly seen from the platform in front of the station on the north side of the tracks at Benton, and from the north track and from the space between the tracks; but from the platform on the south side it could not be seen for more than three hundred or five hundred feet, owing to an embankment and pile of ties obstructing the view. Mrs. Hutchinson was in the habit of visiting her daughter and had frequently taken the train from that station, but usually went in on an earlier train. The night of the accident was cold and dark. Mrs. Hutchinson and Mr. Banghart were in the station house, where there was a light and fire, awaiting the accommodation train. She had a ticket to the Union Station. They heard a whistle in the direction of Ellendale, when Mrs. Hutchinson said, "That is our train, we will have to be in a hurry," and she and Banghart immediately arose and went out on the platform in front of the station, where they stopped and looked west. The headlight of the train coming from Elendale was plainly visible. She said, "This is our train, we better be in a hurry to get across." They both started to go...