Backenstoe v. Wabash, St. L. & P.R. Co.

• Decision Date: 08 December 1885
• Citation: 23 Mo.App. 148
• Parties: RUDOLPH W. BACKENSTOE, Respondent, v. THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

23 Mo.App. 148

RUDOLPH W. BACKENSTOE, Respondent, v. THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

December 8, 1885^[1]

APPEAL from Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.

Certified to Supreme Court of this state as provided in section six of the constitutional amendment creating the Kansas City court of appeals. Judge Hall, being of opinion that the conclusion reached by the majority of the court is in conflict with the decision in Nall v. Railroad, 59 Mo. 112, and that said decision has not been directly overruled.

Statement of case by the court.

This was an action instituted before a justice of the peace in Carroll county, Missouri, on the second day of August, 1882 to recover of defendant the sum of one hundred dollars damages, for the alleged killing of a horse on defendant's railroad by one of its trains, on the sixth day of November, 1881, in the township of Egypt, in Carroll county, and within the corporate limits of the town of Norborne. Judgment by default was had against defendant. Upon an appeal to the circuit court a trial de novo was had. Upon this trial evidence was introduced by plaintiff tending to show that he was the owner of the mare killed that she was worth one hundred dollars; that she was killed about three hundred yards west of the depot at Norborne and about five yards east of the public crossing, and within the defendant's switch limits, and within the limits of the town of Norborne; that the public crossing near which the mare was killed was a very public crossing, over which most of the trade going to Norborne crossed; that three horses were standing about thirty or forty yards north of defendant's track as the defendant's train approached; that they all " started and ran south of the track at the crossing, two of them got across safe, this mare being behind was cut off by the train and turned east, she ran a few yards on the track before the engine struck her " that the train was running at the rate of fifteen or twenty miles an hour; that the population of Norborne was, at the time, one thousand or twelve hundred, and that Norborne was organized as a city of the fourth class. The population of Norborne and its organization as a city of the fourth class were testified to orally by plaintiff's witness Van Trump, without objection by defendant.

Plaintiff offered in evidence section 18, of ordinance number 17, governing the town of Norborne. To the introduction of which ordinance in evidence, the defendant objected for the following reasons:

" Because a city of the fourth class has no authority to pass ordinances regulating the speed of cars.

Because said ordinance was unreasonable and only subjects the conductor, or engineer, or the person in charge of the train, to a fine."

The defendant's objection was overruled and the said section of the said ordinance was read in evidence.

Said section 18, as read by plaintiff, was as follows:

" Section 18. Every conductor or engineer or other person in charge of any railroad train passing through the city of Norborne, who shall run or cause the same to be run at a greater speed than four miles per hour, while passing through the corporate limits of the city, shall be fined not less than five, nor more than ninety dollars for every such offence."

The defendant unsuccessfully demurred to the plaintiff's evidence. The defendant introduced no evidence.

For the plaintiff the court gave the following instructions:

" 1. If the jury find for plaintiff, they will assess as damages the value of the animal at the time of the killing, not more than one hundred dollars."

" 2. If the jury find from the evidence that the animal in question was struck by the locomotive or train of defendant running on its road through the town of Norborne, that the train was running at a greater rate of speed than is allowed by the ordinance of said town, to-wit: four miles per hour, and that the animal was struck by reason of such excessive rate of speed, then they will find for the plaintiff."

For the defendant the court gave the following instructions:

" 1. The court instructs the jury that the burden of proof is upon plaintiff and it is for him to prove his case by a preponderance of evidence."

" 2. If the jury believe from the evidence that if the train that killed the horse had been run at a rate of speed not greater than four miles an hour, the horse would nevertheless have been killed at said time and place, then they are instructed that the verdict must be for the defendant."

" 4. Although the jury may believe from the evidence that the horse in question was the property of the plaintiff, and that it was run over and killed in the town of Norborne by the engine or cars of defendant, and that the train that thus killed the horse was at the time and prior thereto, running through said town at a rate in excess of four miles an hour, yet the jury are instructed, that the proof of each and all of the foregoing facts will not entitle the plaintiff to a verdict, but the jury must further find from the evidence, that the horse was killed directly in consequence of the fact that the engine and train was run at the rate in excess of four miles an hour and unless the jury so find from the evidence, they are instructed that their verdict must be for defendant."

Judgment was rendered in favor of the plaintiff. The case is here on appeal by defendant.

GEORGE S. GROVER, for the appellant.

I. While it was averred in the complaint that the animal was killed in Egypt township, Carroll county, Missouri, such fact was not proved. It was shown that the animal was killed in the town of Norborne, but it was not shown that such town was in Egypt township, in Carroll county. This was a fatal omission, as the place where the killing occurred must be shown in order to confer jurisdiction upon the justice, or upon the circuit court on appeal. No venue was shown, and no jurisdiction was acquired by the court, and the proceedings were void. The court cannot take notice of such jurisdictional facts. State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Iba v. Railroad, 45 Mo. 469; Haggard v. Railroad, 63 Mo. 302; Barnett v. Railroad, 68 Mo. 56. And this question may be raised for the first time in this court. Barnett v. Railroad, supra.

II. The court erred in permitting the alleged ordinance of the city of Norborne to be read in evidence, without proof of its passage by the board of aldermen, in the manner required by the statute. Until such proof was made the ordinance was not admissible in evidence. Sects. 4946 and 4950, Rev. Stat., p. 984; Inhabitants of Butler v. Robinson, 75 Mo. 192; City of Alton v. Ins. Co., 72 Ill. 328; Schott v. People, 89 Ill. 195.

III. Nor was it competent to prove by parol that Norborne was incorporated as a city of the fourth class. Such fact, if true, could only be shown by the record unless the loss or destruction of the record had been proved. Sects. 4385, 4946, 4950, Rev. Stat.; Volger v, Heidel, 60 Mo. 284; Washington Co. v. Railroad, 58 Mo. 372; Maupin v. Franklin Co., 67 Mo. 327; Brackett v. Brackett, 61 Mo. 221; Mabley v. Nave, 67 Mo. 327; Schott v. People, 89 Ill. 195.

IV. The demurrer to the evidence should have been sustained. The burden of proof was upon the plaintiff to show that the actual negligence of defendant caused the injury, and no attempt was made to prove such fact, or, that the speed of the train caused the injury. Under such circumstances, it was the duty of the trial court to instruct the jury to find for defendant. Such has been the uniform rule in this state as to statutory actions; and it applies with equal force to this action, as the plaintiff relies for recovery upon a municipal by-law which is in the nature of a penal statute. Holman v. Railroad, 62 Mo. 562; Wallace v. Railroad, 74 Mo. 594; Braxton v. Railroad, 77 Mo. 555; Stepp v. Railroad, Supt. Ct. Mo. (not yet reported).

V. There was no authority given by the ordinance to institute or maintain this action against defendant. It simply contemplates a criminal proceeding against the men named in the ordinance as for a misdemeanor, and cannot be construed to authorize a civil action sounding in tort, or to create a pecuniary liability. Dunlap v. Knapp, 14 Ohio St. 64; Tingle v. Railroad, 60 Iowa 333.

VI. The court erred in giving and refusing instructions.

HALE & SONS, for the respondent.

I. If it is stated in the petition that the killing was done in the township where the suit was brought, it is sufficient to give the court jurisdiction. The statement says that the killing was done in the town of Norborne, in Egypt township, and within the switch limits. The proof is that the killing occurred in the town of Norborne and within the switch limits; it will be assumed, after verdict, that the killing was done in the township. The court acquires jurisdiction by the allegation in the petition. The jury were authorized to assume from the facts proven that the killing was in the township, especially where no question of the sort is raised. Barnett v. Railroad, 68 Mo. 56.

II. The objection to the reading of the ordinances of the town of Norborne and to the proof that it was a city of the fourth class, were not made in the court below, and cannot be made now for the first time. Parol testimony that the town of Norborne was acting as a city of the fourth class is prima facie sufficient, even if the objections had been made in the court below; and our statutes make the printed copy of the ordinances of a town purporting to be purblished by authority, etc., evidence. See sect. 2287, Rev. Stat.

III. The demurrer to the evidence involves the whole case on plaintiff's testimony, and if there was...