Bain v. Ft. Smith Light & Traction Co.
| Decision Date | 04 January 1915 |
| Docket Number | (No. 88.) |
| Citation | 172 S.W. 843 |
| Parties | BAIN v. FT. SMITH LIGHT & TRACTION CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.
Action by Charles F. Bain against the Fort Smith Light & Traction Company. From a judgment for defendant, plaintiff appeals. Affirmed.
The appellant was a United States mail collector, and under an ordinance of the city of Ft. Smith, in case of conflict, had the preferential right of way over the appellee in the use of the streets. While in the discharge of his duties, he drove his cart to the mail box at Manhattan Café on Garrison avenue, stopped the cart about four feet from the box, which was at the curb, gathered the mail from the box, and as he locked the box his horse started across the street, as he was in the habit of doing, to the mail box on the opposite side. Appellant jumped into the cart when same was 10 or 12 feet from the curb, and about the middle of the street between the curb and the first car track. At this time the street car was at or crossing Fifth street, about 75 feet away. Appellant did not know the speed the car was going. It increased its speed after crossing Fifth street, but appellant thought the motorman would check the speed and control the car so as not to run over him. This the motorman could have done had be applied the brakes in time, but the motorman did not check up the speed of the car until he was within 10 or 12 feet of appellant's cart, when he made a hurried effort to do so. Appellant's wagon nearly cleared the track, but the hind wheel was struck by the car, causing appellant's horse and cart to be dragged against the first trolley post east of the point of contact, which was more than 50 feet from where appellee's car struck the cart of appellant. Appellant was thrown against an iron rod around the top of the cart, and in this way he alleges that he received the injuries of which he complained. The distance from the west side of Fifth street, where the car first stopped or slowed up, was 93 feet from a point opposite the Manhattan box; the cart being struck a few feet west of that point. The appellant's official and usual route in collecting the mail was to go from the Manhattan box to the box on the corner of Fifth and Garrison avenue on the opposite side. That this was appellant's usual and official route was known to the motorman. From the curb to the first rail of the track was a little over 35 feet. The track was about 5 feet wide, and the horse and cart were about 15 feet long. There was nothing to obstruct the view of the motorman, and he could have seen the appellant collecting mail at the Manhattan box and could have seen appellant's cart in starting from the Manhattan box to the box on the opposite side of the street. The appellant sued the appellee for damages, alleging that its motorman was running the car at a dangerous and high rate of speed; that the motorman did not sound any bell or alarm; that he could have seen appellant by exercising ordinary care; that he ran upon appellant without warning, and by reason of these acts of negligence appellant was run down and seriously injured. The appellee denied the allegations of negligence and set up that the appellant was driving his cart in violation of the city ordinances, and that the collision was caused solely through the negligence of the appellant.
The testimony on behalf of appellant tended to establish the facts as above stated. The testimony on behalf of the appellee tended to show that appellant caught up with and jumped into his mail cart when same was on appellee's car track directly in front of the street car; that the motorman, when the horse's neck was about across the first rail of the car track, applied the brakes and reversed the current to stop the car, at which time the same was 30 or 35 feet away, going at a speed of 4 or 5 miles an hour, the current having been shut off, and the car was being carried by its own momentum; that the car stopped within 2 feet of where it hit appellant's cart; that the motorman attempted to stop the car as soon as he discovered appellant's dangerous position, but was unable to stop it in time to prevent the collision. The car was a light single truck car, with one passenger. The motorman applied the brakes as soon as the neck of the horse crossed the first rail, sounded the bell, and made a good stop. Appellant was not thrown out of the cart, which was pushed up to within 2 feet of the trolley post, but stepped out of the same and gathered up his mail, complained only of having his hand slightly hurt, went away, and afterwards during the day was seen gathering up the mail on his route. The testimony on behalf of the appellant tended to show that the injuries of which he complained at the time of the trial were produced by the collision, while the testimony on behalf of the appellee tended to show that the injuries and suffering of which he complained at the time of the trial were from other causes, and that appellant, by reason of the collision, only received a slight injury to his hand. The above were the issues and substantially the facts adduced in evidence on behalf of the respective parties, and upon which the case was sent to the jury, whose verdict was in favor of the appellee, and from the judgment rendered in appellee's favor this appeal has been duly prosecuted. Appellant complains of the rulings of the court in granting and refusing prayers for instructions and upon the admission and rejection of testimony. We will discuss the grounds urged for reversal in the opinion.
Ira D. Oglesby, of Ft. Smith, for appellant. Jos. M. Hill and Henry L. Fitzhugh, both of Ft. Smith, for appellee.
WOOD, J. (after stating the facts as above).
I. The appellant asked the court to tell the jury, in his prayer No. 4, that the city ordinance gave United States mail wagons when in use collecting mail the right of way, and that the appellant, as the driver of such wagon, had the right to assume that appellee's motorman, if he discovered, or by the exercise of ordinary care would have discovered, the approach of the mail wagon, to accord it and the driver the right of way. The court refused this prayer, but instructed the jury as follows:
"The motorman and the driver of the mail wagon are presumed to have been familiar with the ordinance giving the United States mail wagons the right of way, and their conduct must be judged in the light of this provision."
And further, at appellant's request, prayer No. 10:
"The jury, in determining whether defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence, may take into consideration the ordinance introduced in evidence so far as same affects the rights of plaintiff and defendant."
The court further instructed the jury on its own motion No. A as follows:
"The ordinance of the city of Ft. Smith introduced in evidence does not create any liability against the defendant and is only to be considered by the jury in passing upon the question as to whether there was negligence upon the part of either the plaintiff or defendant."
Did the court err? It is not within any of the general or special powers conferred upon municipal corporations in this state to create a right of action between third persons, nor to enlarge the common-law or statutory liability of citizens among themselves. This could only be done by contract between the municipality and the company sought to be charged with the violation of an ordinance alleged to be for the benefit of a citizen. Kirby's Dig. c. 115; Holwerson v. St. L. & Sub. Ry. Co., 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850. Such power is not implied from any of the powers expressly conferred. A municipal corporation has no powers except those expressly conferred and those fairly implied for the attainment of declared purposes. Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666. See, also, Winchester v. Redmond, 93 Va. 711, 25 S. E. 1001, 57 Am. St. Rep. 822.
The city had the express power to authorize the construction of street railways (Kirby's Digest, § 5443), and in the ordinance granting the charter to the appellee the city could undoubtedly have reserved to itself the right as a condition or consideration for the granting of the franchise — the power to pass ordinances for the protection of persons and property of individuals and creating a liability in their favor against the company for a violation of such ordinances, and the company, if it accepted the franchise with these provisions, would be bound thereby and liable in damages to individuals for a violation of such ordinances. It is not shown that the city of Ft. Smith reserved to itself such power as a consideration for the grant of its franchise to the appellee, or that the company accepted the franchise with such power reserved as a consideration therefor. The violation of the ordinance, therefore, could not become the basis of a liability for personal injuries. See Byington v. St. L. Ry. Co., 147 Mo. 673, 49 S. W. 876.
We have no statute creating a liability against street railway companies in favor of parties injured for breaches of ordinances passed for the protection of persons or property, and there is no statute conferring upon municipal corporations the power to pass such ordinances, as was the case in Hayes v. Mich. Cent. Ry. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410. Therefore no power existed in the city to create a liability in favor of appellant against appellee for a violation of the ordinance under review, and, if the ordinance had created such liability, it would have been void for lack of power to enact it.
A city, under its general police power over the streets, could pass any reasonable and proper regulations prescribing the manner in which the franchise of street railways should be enjoyed, not inconsistent or in conflict with their charter rights. 36 Cyc. 1447,...
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