Apitz v. Missouri Pac. Ry. Co.

• Court: Kansas Court of Appeals
• Writing for the Court: HALL, J.
• Citation: Apitz v. Missouri Pac. Ry. Co., 17 Mo.App. 419 (Kan. App. 1885)
• Decision Date: 13 April 1885
• Parties: CHARLES APITZ, Respondent, v. THE MISSOURI PACIFIC RY. CO., Appellant.

17 Mo.App. 419

CHARLES APITZ, Respondent, v. THE MISSOURI PACIFIC RY. CO., Appellant.

Court of Appeals of Missouri, Kansas City.

April 13, 1885

APPEAL from Randolph Circuit Court, HON. G. H. BURCKHARTT, Judge.

Reversed and remanded.

Statement of the case by the court.

This case originated before a justice of the peace.

Omitting the caption, the statement or petition is as follows: " Plaintiff states that defendant is now and was at the time hereinafter mentioned, a railroad corporation duly organized under the laws of the state of Missouri, and as such was running, controlling, and operating a certain line of railroad, known as the Missouri Pacific Railroad, extending into and through the city of Moberly in Sugar creek township Randolph county, Missouri. That on the … day of … ., 1882, there was in force an ordinance of said city of Moberly, prohibiting any railroad company having ownership or control of any locomotive or railroad car running within the corporate limits of the city of Moberly Missouri, by its agents or employes or otherwise, from permitting said locomotive, engine, or railroad car to be run at a greater rate of speed than six miles per hour. That on the aforesaid day there was also an ordinance of said city of Moberly in force requiring any railroad company having the ownership or control of any locomotive engine or railroad car running within the corporate limits of said city, to have the bell of said locomotive engine rung at frequent intervals while passing through the territory included within said corporate limits, and particularly while within forty rods of any public crossing. That defendant on said … . day of … … , 1882, while running a locomotive engine and cars thereto attached, on the line of said railroad within the corporate limits of said city of Moberly at a greater rate of speed than six miles per hour, and within forty rods of the public crossing, without ringing any bell, and in violation of the aforesaid ordinance of said city of Moberly, carelessly and negligently run against and over one cow of the value of sixty dollars and the property of the plaintiff. Plaintiff states that plaintiff's cow was run over and killed by defendant's agents and employes while running and operating its locomotive engine, and cars thereto attached, in consequence of the carelessness and negligence of defendant in failing to ring its bell as aforesaid, and in consequence of running at a greater rate of speed than six miles per hour. Plaintiff states that by reason of the aforesaid premises he has been damaged, etc."

Judgment by default was rendered by the justice of the peace against the defendant, which appealed to the circuit court. In the circuit court the plaintiff offered in evidence " a book purporting to contain the printed ordinance of the city of Moberly." To the introduction of this book in evidence the defendant objected, because it (the petition) " does not state facts sufficient to constitute any cause of action, and second, because the ordinance was not sufficiently pleaded, and was not pleaded by its title. And because the book offered in evidence is not authenticated." These objections were overruled by the court, and the " book," containing the ordinances pleaded, was read in evidence. These ordinances are not in the transcript of the record of this case.

The plaintiff introduced evidence that his cow was killed in the corporate limits of the city of Moberly. One of plaintiff's witnesses testified that the train of defendant was going at a speed of eight or ten miles per hour, and that when the train started, the cow was behind a box car on the track adjoining the track on which the train was, and as the train got near to her, she started from behind the car across the track and was struck just before she got across. The bell was not rung nor the whistle sounded until the cow was struck." There was other evidence to the same general effect. The evidence showed that the cow was killed in the switch yards of defendant and of the Wabash Railway Company, where all the switching for both roads was done; and where there were a great many tracks, fifteen or sixteen in number, and where there were a great many trains passing at all times during the day.

Plaintiff testified, among other things, " I turned my cow out and let her run out. I live near by these yards and know trains are passing and making up there all the time, and that there are a great many tracks there used for that purpose." The act of the general assembly incorporating the city of Moberly, or in other words, the charter of said city, was not introduced in evidence.

The defendant introduced no evidence.

Upon behalf of the plaintiff, the court instructed the jury as follows:

" 1. The court instructs the jury that under the charter and ordinance of the city of Moberly, it was the duty of defendant to so run and manage its locomotives and cars that they will not exceed in speed, within the corporate limits of said city, six miles per hour, and to ring the bell at intervals while passing through said city. If the jury find from the evidenee that the train of defendant was running at a greater rate of speed than six miles per hour, or failed to ring its bell at intervals while in said city limits, and further find that such failure to run at six miles per hour or less, or to ring its bell, was the cause of plaintiff's cow being run over and injured, then plaintiff is entitled to recover, and the fact of plaintiff's cow running on the commons is no defence to this action.

2. If the jury believe from the evidence that the cow in question was the property of plaintiff, and was on or about the day named in plaintiff's petition, run over and killed or injured in the corporate limits of the city of Moberly and further believe there was at said time and place an ordinance in force in said city of Moberly, prohibiting the running of trains at a greater rate of speed than six miles per hour, and that defendant was, by its employes, at the time of such killing or injuring, running said train at a greater rate of speed than six miles per hour, and further find that the running of said train at said greater rate of speed was the direct cause of the injury to plaintiff's cow, then plaintiff can recover, etc."

The following instructions asked by defendant were refused:

" 1. The court instructs the jury that under the pleadings and evidence, the plaintiff is not entitled to recover.

2. The jury are instructed that if the plaintiff, with a knowledge of the dangerous surroundings, turned his cow out and permitted her to wander around upon the yards of the defendant and the Wabash Railway Company, and that she was so killed in said yards, the jury must find for the defendant."

The jury found for the plaintiff. The defendant has brought the case to this court by appeal.

SMITH & KRAUTHOFF with THOMAS J. PORTIS, for the appellant.

I. The petition does not state facts sufficient to constitute a cause of action. It disclosed that the cow sued for was killed within the corporate limits of the city of Moberly. The defendant can, therefore, only be held liable by proof of actual negligence causing such injury.-- Wallace v. R. R., 74 Mo. 594. This element is attempted to be supplied by reciting the enactment of two ordinances by said city, regulating speed and requiring ringing of bell, and averring a violation thereof. Neither the title, date of passage, nor copy of said ordinances is found in the petition. The court cannot take judicial notice of such ordinances, but they must be pleaded.-- Mooney v. Kennett, 19 Mo. 551; State v. Oldie, 42 Mo. 210.

II. There is nothing in the record to show that Moberly had any authority to pass the ordinances, since the charter of said city was not introduced. Courts cannot take judicial cognizance of charters incorporating cities as they do of public statutes; and the act of incorporation does not declare it to be a public act.-- Butler v. Robinson, 75 Mo. 192; Hopkins v. R. R., 29 Mo. 98; State v. Crumb, 68 Mo. 296.

III. The instructions of plaintiff should have been refused and those of defendant given. There is no evidence that the rate of speed and failure to ring bell were the cause of injury.-- Braxton v. R. R., 77 Mo. 455; Wallace v. R. R. Co., 74 Mo. 594. It was erroneous to declare to the jury, in effect, that there was no evidence of contributory negligence by plaintiff in this case.-- Herrenstein v. R. R. Co., 55 Mo. 33; Railway Co. v. Goss, 17 Wis. 828; Walden v. R. R., 35 Me. 422; Marsh v. R. R., 14 Barb. 364.

IV. Where the action is based upon the negligence of defendant, negligence on the plaintiff's part will defeat a recovery.-- Wallace v. R. R. Co., 74 Mo. 594; Jones v. R. R. 42 Wis. 306; R. R. v. Adams, 43 Ind. 492; R. R. v. Foster, 63 Ind. 342.

V. The defendant could not lawfully fence its road in the city of Moberly. It can, therefore, only be made liable on the theory of negligence. And if the plaintiff was also negligent, there can be no recovery.-- R. R. v. Phelps, 29 Ill. 447; R. R. v. Goodwin, 30 Ill. 117; Smith v. R. R., 34 Iowa 506. In the light of the evidence and these authorities it was certainly error to instruct " that there was no evidence of contributory negligence on the part of plaintiff."

No brief on file for respondent.

OPINION

HALL J.

I.

The objection to the introduction of the " book" offered in evidence was properly overruled.

The petition in this case was sufficient. This action originated before a justice of the peace, in whose court no formal pleadings were necessary. It was only necessary for the petition to contain " a statement of the facts constituting the cause of action upon which the suit is founded." -- Section 2851 of Revised...