Bergman v. St. Louis, Iron Mountain & Southern Ry. Co.
| Citation | 88 Mo. 678 |
| Parties | BERGMAN et al. v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant. |
| Decision Date | 30 April 1886 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
Bennett Pike for appellant.
(1) The demurrer to the evidence at the close of plaintiffs' case should have been sustained on the ground of deceased's contributory negligence. Fletcher v. Ry. Co., 64 Mo. 484; Nelson v. Ry. Co., 68 Mo. 593; Hicks v. Ry. Co., 64 Mo. 436; Harlan v. Ry. Co., 65 Mo. 22; O'Neill v. Ry. Co., 45 Iowa, 646; Ry. Co. v. Patterson, 93 Ill. 195; Thomas v. Ry. Co., 51 Miss. 637; Wood v. Ry. Co., 70 N. Y. 195; Ry. Co. v. Hasbon, 4 Broome, 149; Runyan v. Ry. Co., 1 Dutch. 357; Ry. Co. v. Still, 19 Ill. 508; Ry. Co. v. Heilman, 49 Pa. 62; Ry. Co. v. Hunter, Adm'r, 33 Ind. 336; Drain v. Ry. Co., 10 Mo. App. 531; Ry. Co. v. Houston, 95 U. S. 697; Lennix v. Ry. Co., 76 Mo. 86; 1 Thompson on Negligence, 426; Garton v. Ry. Co., 45 N. Y. 662. (2) The demurrer to the evidence should have been sustained, because plaintiffs relied solely for their ground of recovery upon the violation of section two of ordinance number 10,305, entitled, “An ordinance to regulate the speed, within the limits of the city of St. Louis, of cars and locomotives propelled by steam power,” which said section is unconstitutional and void. Cooley's Const. Lim. [5 Ed.] p. 178, sec. 5, side paging 148; Mewhater v. Price, 11 Ind. 199; Igoe v. State, 14 Ind. 239; State v. Young, 47 Ind. 150; Ryerson v. Utley, 16 Mich. 349; Bridge Co. v.Olmstead, 41 Ala. 9; People v. Dehaney, 20 Mich. 349; Weaver v. Lapsley, 43 Ala. 224; Jones v. Thompson, 12 Bush, 394; Bushing v. Lebree, 12 Bush, 198; State v. Kinsella, 14 Minn. 524; Cutlip v. Sheriff, 3 W. Va. 588; State v. Squires, 26 Iowa, 340; State v. Lafayette Co. Ct., 41 Mo. 39; State v. Bankers' Ass'n, 23 Kan. 501; Failing v. Commissioners, 53 Barb. 70; City of Kansas v. Payne, 71 Mo. 159; Dillon on Mun. Corp., secs. 226, 246; Bartlett v. O'Donoghue, 72 Mo. 563. (3) The court committed error in refusing to give the instructions asked by defendant, numbered one, two, three, six, eight, and nine. (4) The instructions given by the court on its own motion were erroneous. Zimmerman v. Ry. Co., 71 Mo. 476; Ry. Co. v. Houston, 95 U. S. 697.
Louis Gottschalk for respondent.
(1) There was no objection to the introduction of the ordinance number 10,305, which is now attacked for the first time, and, therefore, any objections, even if they existed, are waived. Dunkman v. Ry. Co., 16 Mo. App. 648; Chaffee v. Ry. Co., 64 Mo. 193; Lohert v. Buchanan, 50 Mo. 201. But this ordinance is constitutional and complies with the requirements of the charter. In re Burriss, 66 Mo. 446; City v. Tiefel, 42 Mo. 578; State v. Matthews, 44 Mo. 523; State v. Miller, 45 Mo. 495; Cooley on Const. Lim. [3 Ed.] 200, 576; Dillon on Mun. Corp. [3 Ed.] secs. 393, 713. (2) The instructions were correct and the verdict right, and no well founded objections to any evidence were made. Eckert v. Ry. Co., 13 Mo. App. --; Frick v. Ry. Co., 64 Mo.; 75 Mo. 595; Kelly v. Ry. Co., 75 Mo. 138; Scoville v. Ry. Co., 81 Mo. 434; Welsh v. Jackson, 81 Mo. 466; Davis v. Ry. Co., 46 Am. Rep. 667; Barry v. Ry. Co., 92 N. Y. 289; Bennett v. Ry. Co., 102 U. S. 577.
Plaintiffs brought this suit to recover damages for the death of their minor son, Cornelius Bergman, who, it is alleged, was killed by being run over by defendant's cars while walking on Front street, in the city of St. Louis, along which the tracks of defendant's railway run. The defence was contributory negligence. Plaintiffs obtained judgment in the circuit court, which, on appeal to the St. Louis court of appeals, was affirmed pro forma, and the cause is before us on defendant's appeal.
At the close of plaintiffs' evidence, defendant asked the court to instruct the jury that, under the pleadings and evidence, plaintiffs were not entitled to recover. The instruction was refused, and this action of the court is assigned as the first ground of error. It appears, from the evidence, that defendant had three tracks along Front street, in the city of St. Louis, between Harney and Bryant streets, and that on the morning plaintiffs' son, who was about eighteen years of age, was run over and killed, he, in company with another youth, was walking on the eastern track in a northwardly direction, when on the approach of a passenger train moving southwardly on the same track, he, with his companion, stepped off the east track on to the middle track, and continued walking northwardly on said track; that when they stepped off the east track on to the middle track, there was a freight train backing up on the middle track consisting of an engine and five or six freight cars, at a distance south of the point where the son of plaintiffs went upon said track, variously estimated by the witnesses to be from one hundred and fifty to six hundred feet. The backing train was moving at three, four, or five miles an hour. The evidence showed that neither of these youths, when they stepped from the eastern to the middle track, listened or looked to see whether any train was on said track approaching from the south, that if they had looked the freight train could have been seen by them. It also shows that after they got on said track they continued their walk northward till both were run over and killed by the backing freight train, without looking back, and that if they had looked back they could have seen the train.
It was also shown by plaintiffs' evidence that by an ordinance of said city it is provided that in moving cars in the city limits propelled by steam, the bell of the engine shall be constantly sounded, and that if any freight car or cars, or locomotive propelled by steam be backing within the city limits, a man shall be stationed on the top of the car at the end farthest from the engine to give danger signals, and no freight train shall at any time be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals, and hear the signal from the engine. The evidence of plaintiffs further tended to show that this ordinance was disregarded in two respects, first, in not ringing the bell while the train was in motion; and, second, in not having a man stationed on top of the car farthest from the engine to give danger signals. It further tended to show that at the rate of speed the train was moving it could have been stopped in twenty or twenty-five yards, and that if the ordinance had been complied with in having a brakeman on top of the car, as therein provided, that the dangerous position of plaintiffs' son could have been discovered in time to have avoided the accident and injury. The instruction offered by defendant in the nature of a demurrer to the evidence was properly refused, inasmuch as while it tended to show, and did show, negligence on the part of plaintiffs' son in going upon the track without looking or listening for the train, which he could have seen or heard had he looked or listened, it also tended to show that notwithstanding such negligence the injury to him could have been avoided if the ordinance in evidence had been observed by defendant in having a man stationed on top of the car as required by it.
It is, however, insisted that said ordinance is unconstitutional and void, and that for that reason the instruction should have been given. The objection here made was also made to the same ordinance in the case of Merz v. Railroad, 88 Mo. 672, and after a full consideration it was held to be valid, and it is, therefore, unnecessary to re-discuss it.
All the instructions which were given were asked by the defendant, except one, which the court gave of its own motion, and it is unnecessary to notice them further than to say that the issues involved were fairly presented to the jury; and in which they were told that it was negligence on the part of plaintiffs' son to go on the railroad track without looking or listening for the train, and that if they believed he did so, plaintiffs could not recor unless they further believed from the evidence that defendant either knew, or might, by the exercise of ordinary diligence, have known of his dangerous position on the track in time to have prevented the accident. The cause...
To continue reading
Request your trial