63 S.W. 834 (Mo. 1901), Schmidt v. St. Louis Railroad Company

Citation:63 S.W. 834, 163 Mo. 645
Opinion Judge:VALLIANT, J.
Party Name:SCHMIDT et al., Appellants, v. ST. LOUIS RAILROAD COMPANY
Attorney:Sale & Sale for appellants. Boyle, Priest & Lehmann and Geo. W. Easley for respondent.
Judge Panel:VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in the result.
Case Date:June 12, 1901
Court:Supreme Court of Missouri

Page 834

63 S.W. 834 (Mo. 1901)

163 Mo. 645

SCHMIDT et al., Appellants,



Supreme Court of Missouri, First Division

June 12, 1901

          Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow, Judge.

          Reversed and remanded (with directions).

         Sale & Sale for appellants.

         (1) Section 1275 of the revised ordinances of the city of St. Louis was properly admitted in evidence. (a) Because the defendant agreed that the city might regulate the manner of running defendant's cars, and section 1275 is made by section 1274 binding upon all street railway corporations doing business in the city. Schmidt v. Railroad, 149 Mo. 269. (b) Because section 1275, as a valid police regulation, was binding upon the defendant company, even in the absence of defendant's consent to be bound thereby. Jackson v. Railroad, 58 S.W. 32. (c) Because the court, by its instruction having withdrawn from the jury all that portion of the ordinance which required the defendant to stop its car in the shortest time and space possible on the first appearance of danger, thereby cured the error, if any, in admitting that portion of the ordinance. 2 Foster's Fed. Prac., p. 769, sec. 372; Pennsylvania Co. v. Roy, 102 U.S. 451. (d) The remaining portion of said ordinance, providing only, as it does, for the keeping of a vigilant watch, imposed no higher obligation upon the defendant than is imposed upon it by the common law, and therefore could not have been prejudicial to the defendant. Hanlon v. Railroad, 104 Mo. 381; Bunyan v. Railroad, 127 Mo. 12; Cook v. Baltimore Traction Co., 80 Md. 551; Schnur v. Traction Co., 153 Pa. St. 29; Winters v. Railroad, 99 Mo. 509; Wilson v. Cunningham, 3 Cal. 241. (2) Instruction numbered 1 was not erroneous in referring to the age of the child. (a) Because the age of the child is stated only by way of illustrating the rule of law; and (b) Because the testimony as to the child's age was clear and positive, and was in no way contradicted or impeached. Van Natta v. Railroad, 133 Mo. 13; Pope v. Railroad, 99 Mo. 400; Fields v. Railroad, 80 Mo. 203. (3) Instruction numbered 3 stated the law as plaintiff was entitled to have it declared. (a) Because under the law it was the duty of the gripman to give warning of the approach of a train to a street crossing. Steiner v. Traction Co., 134 Pa. St. 199; Railroad v. Robinson, 127 Ill. 9; Hickman v. Railroad, 47 Mo.App. 65. (b) Because in the situation and under the circumstances as testified to by defendant's witnesses, it was clearly the duty of the gripman to give warning of the approach of the train to Lemp avenue, even if the law does not impose the duty of giving notice at each crossing. (4) Instruction numbered 4, given for plaintiffs, in requiring the defendant's servants to so manage the grip and brakes as to be able to stop the train quickly, should occasion require, was proper under the facts as testified to by defendant's witnesses. Schmidt v. Railroad, supra; Humbird v. Railroad, 110 Mo. 76.

         Boyle, Priest & Lehmann and Geo. W. Easley for respondent.

         (1) Paragraph 4, section 1275, of revised ordinances of St. Louis, was improperly admitted in evidence, over the objection of the defendant. No evidence was offered to show any acceptance of this ordinance. The acceptance of the special ordinance, granting the defendant the right to change its motive power, was not an acceptance of the general ordinance. Murphy v. Railroad, 153 Mo. 252. Acceptance was necessary to make the defendant liable under the general ordinance. Fath v. Railroad, 105 Mo. 537; Senn v. Railroad, 108 Mo. 152; Sanders v. Railroad, 147 Mo. 411; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 153 Mo. 252. (2) Instruction numbered 1, given for the plaintiffs, was erroneous in that it assumed that the deceased was only nine years of age. This was an issue made by the pleadings and should have been left to the jury to determine from the evidence, and should not have been assumed by the court as an established fact. (3) The third instruction given for plaintiff was erroneous. It asserts the proposition that the duty of sounding the gong was an absolute one imposed by law. That the duty arises from the specific facts of each case and not from a positive command of law is shown by the authorities upon the distinction between signals required of steam railways at public and private crossings. In the first, positive law requires it. In the second, it is only required when the circumstances demand it. Gurley v. Railroad, 104 Mo. 227; 3 Elliott on Railroads, sec. 1150. (4) The fourth instruction asserts broadly the proposition that if there was reason to anticipate the sudden and unexpected appearance of children upon the track, and that the gripman was not managing the grip and brakes so as to readily and quickly stop the train should occasion require it, and that the deceased was killed because of the failure of gripman to so manage its grip and brake, the plaintiffs were entitled to recover. We indulge in no mere verbal criticism when we say that it is incomprehensible that one can anticipate that which is unexpected.

         VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in the result.


          [163 Mo. 649] VALLIANT, J.

         This is the second appeal in this case. At the trial out of which this appeal arises the pleadings and evidence were substantially the same as in that from which the former appeal came and, therefore, for a statement of the case we refer to the opinion on the former appeal, Schmidt v. St. Louis Railroad Company, 149 Mo. 269, 50 S.W. 921, which for the sake of brevity we will adopt without repeating it here, noting only points in the proceedings peculiar to our present inquiry. During the trial we are now reviewing the plaintiff read in evidence an ordinance of the city approved April 4, 1889, authorizing [163 Mo. 650] the defendant to change its motive power to cable or electricity, and containing a clause as follows: "The city of St. Louis reserves the right to regulate the running of cars and the rate of speed at which cars shall be run on said railroad." And in that connection was also read the defendant's acceptance of the provisions of that ordinance, date March 4, 1890. Then the plaintiff offered to read the following from the revised ordinances of 1892:

         "Sec. 1274. Every person, corporation, company or copartnership, engaged in the business of transporting passengers from any point to any other point within this city, for hire, on street railways, shall be subject to all the conditions, stipulations and requirements of this article.

         "Sec. 1275. The following rules and regulations concerning the running of street railway cars shall be binding upon every person, corporation, company or co-partnership taking out license under the provisions of this article: . . . . Fourth. The conductor, motormen, and gripmen, driver, or any other person in charge of each car shall keep a vigilant watch for any vehicles and persons on foot, 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 defendant "objected to the introduction of this ordinance on the ground that it was not shown that the defendant company was at the time of the accident amenable to subdivisions one to four of section 1275, nor that it has any application to defendant." The objection was overruled, exception taken and the ordinance read.

         After the defendant had introduced its evidence and the testimony on both sides was closed, the counsel for plaintiff arose and stated to the court in the presence of the jury "that plaintiffs make no claim that the car which ran over the child [163 Mo. 651] was not stopped within the shortest time and space possible after any of defendant's employees became aware of the presence of danger, and that plaintiffs do not base any charge of negligence...

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