88 S.W. 648 (Mo. 1905), Sluder v. St. Louis Transit Co.

Citation:88 S.W. 648, 189 Mo. 107
Opinion Judge:GANTT, J.
Party Name:SLUDER v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Morton Jourdan and Sears Lehmann for appellant; George W. Easley and Boyle, Priest & Lehmann of counsel. Campbell & Thompson for respondent. George W. Easley with Boyle, Priest & Lehmann on validity of Vigilant Watch Ordinance. Given Campbell for respondent in reply.
Judge Panel:GANTT, J. Brace, C. J., Burgess, Valliant, Fox and Lamm, JJ., concur; Marshall, J., dissents in a separate opinion. MARSHALL
Case Date:June 01, 1905
Court:Supreme Court of Missouri
 
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Page 648

88 S.W. 648 (Mo. 1905)

189 Mo. 107

SLUDER

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

June 1, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss, Judge.

Affirmed.

Morton Jourdan and Sears Lehmann for appellant; George W. Easley and Boyle, Priest & Lehmann of counsel.

(1) The motions to elect should have been sustained. The petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. Charter, art. 10, secs. 1, 2. It could not be passed under its power to legislate. Charter, art. 3, sec. 26; Fath v. Railroad, 39 Mo.App. 452; Fath v. Railroad, 105 Mo. 537; Senn v. Railroad, 106 Mo. 152; Moran v. Car Co., 134 Mo. 641; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 153 Mo. 253; Saunders v. Railroad, 153 Mo. 253; Holwerson v. Railroad, 157 Mo. 245; Anderson v. Railroad, 161 Mo. 411; Nellis on Street Railways, 306, sec. 10. The cases of Jackson v. Railroad, 157 Mo. 621, and Weller v. Railroad, 164 Mo. 180, 120 Mo. 655, were cases under a speed ordinance, and cannot be decisive of the principle here involved, and cannot be held to overrule the long line of cases specially decided on the Vigilant Watch Ordinance. A rule established and followed for a long series of years cannot be fairly overruled by inference or construction from rulings on questions involving entirely different propositions. There is a very broad distinction in the exercise of these two powers. One is public and general, the exercise of sovereignty; the other, private and proprietary. One legislative, the other contractual. State exrel. v. St. Louis, 145 Mo. 572; Trust Co. v. Arkansas City, 76 F. 282; Power Co. v. Colorado Springs, 105 F. 1; Seltzenger v. Tamaqua, 187 Pa. St. 539; Schaub v. Lancaster City, 156 Pa. St. 362; Weston v. Syracuse, 158 N.Y. 274. If these positions are correct, then the plaintiff has joined in the same count a cause of action arising out of contract with two causes of action arising out of tort for common law negligence. The common law distinctions between actions ex contractu and ex delicto are in substance retained by our code. Sumner v. Rogers, 90 Mo. 329. The rule in this State is that such actions cannot be blended in the same count. Kendrick v. Railroad, 81 Mo. 521; Harris v. Railroad, 51 Mo.App. 128; Linnville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242. The fact that the injuries grew out of the same transaction would authorize the joining of them in the same petition, but they would have to be stated in separate counts, with a prayer for separate relief. 1 Burns' Anno. Code, sec. 413. (2) The court erred in permitting the plaintiff to testify as to the rate of speed of the car. He "no more than saw the car when the carriage was struck." He showed no experience or observation in regard to the speed of cars, and in the short length of time, only one or two seconds, during which the car was under his observation, he could not judge of its speed, except by mere inference and deduction from the facts stated by him. Koenig v. Railroad, 173 Mo. 720. (3) The court erred in permitting the plaintiff to testify to his earnings for the corresponding months of the previous year, for the purpose of showing the loss of earnings caused by the injury. (4) The court erred in refusing the instruction in the nature of a demurrer to plaintiff's evidence. Both the plaintiff and his driver were negligent in going upon the track in front of a moving car, without looking or listening for the same, and such action upon the part of both of them, and each of them, was the proximate cause of the injury, and without such negligence on their part, the accident would not have happened. It is the duty of the passenger, as well as the driver, when there is an opportunity to do so, to learn of danger, and avoid it if possible. Smith v. Railroad (Me.), 32 A. 967; Railroad v. McLeod, 29 So. 76; Brannen v. Railroad, 115 Ind. 115; Meenagh v. Buckmaster, 50 N.Y.S. 85; Bush v. Railroad, 62 Kan. 709; Dean v. Railroad, 18 A. 718; Township of Crescent v. Anderson, 8 A. 381; Hoag v. Railroad, 111 N.Y. 199; Roach v. Railroad, 21 S.E. 67; Koehler v. Railroad, 44 F. 574; Aurelius v. Railroad, 49 N.E. 857; Slater v. Railroad, 32 N.W. 264; Miller v. Railroad, 27 N.E. 339; Railroad v. Boyts, 45 N.E. 812; Brickell v. Railroad, 24 N.E. 449. (5) The eighth instruction given on behalf of plaintiff is erroneous. It ignores the plea of the personal negligence of plaintiff in permitting the driver to go upon the track in the face of open and obvious danger. It ignores the proof in the record that the driver was subject to the orders and under the control of the plaintiff. We are not contending for the rule of "identification" founded upon the old case of Thorogood v. Bryan, 8 C. B. 114; nor for a rule, the effect of which "would be to make an innocent person answerable for the wrong act of another, over whom he has and exercises no control, and who is neither his servant nor his agent." Becke v. Railroad, 102 Mo. 550. Our contention is that the plaintiff shall be responsible for the act of one who was under his control and "subject to his orders." It seems clear in this State that if the driver, Cavanaugh, was subject to the orders and under the control of the plaintiff, plaintiff cannot, because of the negligence of Cavanaugh, recover. This question turns upon the fact of whether the plaintiff has the right to control the driver. If he had such right and failed to exercise it, he is responsible for the driver's act. If he had not such right, he is not liable. Becke v. Railroad, 102 Mo. 550; Dickson v. Railroad, 104 Mo. 504; O'Rourke v. Railroad, 142 Mo. 352; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; Dyer v. Railroad, 71 N.Y. 228; Larkin v. Railroad, 85 Iowa 492; Roach v. Railroad, 21 N.E. 67; Mullen v. Owasso, 100 Mich. 103; Railroad v. Hogeland, 66 Me. 149; 1 Thomp. Neg. (2 Ed.), sec. 502, note 22; 2 Thomp. Neg. (2 Ed.), sec. 1621; Little v. Hackett, 116 U.S. 366; Follman v. City of Mankato (Minn.), 29 N.W. 317; Robinson v. Railroad, 66 N.Y. 11; Payne v. Railroad, 49 Iowa 523. If the plaintiff allowed the driver to take full control of the team, when he had the right and power to control and direct him, he is liable for the negligence of the person to whom he submitted such control. Holmes v. Mather (Eng. Ct. of Ex., 1875), 16 Am. Rep. 384; Sharrod v. Railroad, 4 Ex. 580. It was the duty of the plaintiff, as well as of the driver, to learn of the danger and avoid it if possible. The hiring of the outfit did not excuse the plaintiff's failure to exercise care for his own protection. Railroad v. McLeod, 29 So. 76; Smith v. Railroad, 32 A. 967; Miller v. Railroad, 128 Ind. 97; Hoag v. Railroad, 111 N.Y. 199. The rule of non-imputability of the negligence of the driver, however, when no contract is shown does not absolve the passenger from ordinary care for his own safety. The instruction now under discussion directed the minds of the jury to the sole inquiry whether the driver was negligent or not, and was "erroneous as calculated to mislead them." 1 Thomp. Neg. (2 Ed.), sec. 503; 2 Thomp. Neg. (2 Ed), sec. 1621.

Campbell & Thompson for respondent.

(1) The court properly overruled appellant's motion to require respondent to elect, and properly permitted respondent to read in evidence the "Speed and Vigilant Watch" Ordinance, and properly instructed the jury that a failure by appellant to observe the requirements of said ordinance, was negligence. It was not necessary for respondent to prove that appellant had accepted the provisions of said ordinance. Riska v. Railroad, 180 Mo. 168; Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Wendler v. House Fur. Co., 165 Mo. 527; Gebhardt v. Railroad, 97 Mo.App. 373; McLain v. Railroad, 73 S.W. 909; Cox v. Railroad, 74 S.W. 858; Moore v. Railroad, 75 S.W. 699; Sepetowski v. Railroad, 76 S.W. 693; Kolb v. Railroad, 76 S.W. 1050. (2) The court properly gave the jury instruction 8, on behalf of plaintiff. The case of Thorogood v. Bryan, 8 C. B. 114, has been expressly repudiated by the later English cases, by the Supreme Court of the United States, and, with possibly one or two exceptions, by every State of the Union, in which the question has arisen, and especially has it been repudiated by the Supreme Court of Missouri. March v. Railroad, 78 S.W. 284; Becke v. Railroad, 102 Mo. 549; Dickson v. Railroad, 104 Mo. 491; O'Rourke v. Railroad, 142 Mo. 352; Bailey v. Railroad, 152 Mo. 462; Munger v. Sedalia, 66 Mo.App. 629; Profit v. Railroad, 91 Mo.App. 369; Johnson v. St. Joseph, 96 Mo.App. 663; The Bernina, L. R. 12 Probate Div. 58; Jones v. Liverpool, 14 Q. B. Div. 890; Donovan v. Laing, 1 Q. B. Div. 629; Quarman v. Burnett, 6 M. & W. 499; Dean v. Branthwaite, 5 Esp. 36; Sammell v. Wright, 5 Esp. 263; Little v. Hackett, 116 U.S. 366; Randolph v. O'Riordan, 155 Mass. 331; Huff v. Ford, 126 Mass. 24; Femmer v. Crisp Bros., 109 Iowa 455; Joslin v. Ice Co., 50 Mich. 516; Richardson v. Van Ness, 53 Hun 267; Weyant v. Railroad, 3 Duer (N.Y.) 360; Philips v. Railroad, 127 N.Y. 657; Crockett v. Calvert, 8 Ind. 127; Knightstown v. Musgrove, 116 Ind. 121; Herschberger v. Lynch, 11 A. 642; Bunting v. Hogsett, 139 Pa. St. 376; Quinn v. Construction Co., 46 F. 506; Railroad v. Railroad, 41 F. 316; Railroad v. Lapsley, 51 F. 800; Railroad v. Markens, 88 Ga. 62; Nesbit v. Town of Garner, 75 Iowa 314; Follman v. City of Mankato, 35 Minn. 522; Land Co. v. Mingea, 89 Ala. 521; State v. Railroad, 80 Me. 430; Railroad v. Hogeland, 66 Md. 149; Noyes v. Boscumen, 64 N.H. 369; Railroad v. Eadie, 43 Ohio St. 91; Railroad v. Kutoc, 72 Tex....

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