Bluedorn v. Missouri Pac. Ry. Co.
| Decision Date | 01 March 1892 |
| Citation | 18 S.W. 1103,108 Mo. 439 |
| Parties | Bluedorn v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
H. S Priest for appellant.
(1) Respondent's own evidence shows he was guilty of contributory negligence. He knew and must have known from his experience that in so large and busy a yard every track upon which he stepped was likely at any moment to be in use, and that inattention on his part would necessarily meet either with injury to himself, his fellow-servant or the master's property. (2) The speed of the train was not the proximate cause of the plaintiff's injuries. The burden of proving a connection between the cause alleged and the injury rests on the plaintiff. Jennings v. Railroad, 99 Mo. 399; Hanlon v. Railroad, 104 Mo. 387. (3) Had the respondent the legal right to rely upon the provision of the ordinance limiting the rate of speed to six miles per hour, as he alleges he did, "for his protection in the performance of his duty?" Was it designed to protect him as the servant of the railway in the relation of servant? Did it create a duty upon the master for the benefit of the servant? Did the municipal assembly have in view such a purpose in the enactment? We answer in the negative. Cooley on Torts [2 Ed.] p. 623; Fath v. Railroad, 105 Mo 537; Merz v. Railroad, 88 Mo. 676; State v. Mayor, 29 N. J. Law, 170; Eisenburg v. Railroad, 33 Mo.App. 89; Toomey v. Railroad, 24 P. 1074; Rohback v. Railroad, 46 Mo. 194.
Z. J. Mitchell for respondent.
(1) The plaintiff was not guilty of contributory negligence. It cannot be imputed when the line of sight is obstructed (91 Mo. 57), nor when duty directs and is holding the eyes and mind in another direction. Stanton v. Railroad; Parsons v. Railroad, 94 Mo. 286. (2) The ordinances involved in this case are applicable to servants as well as to masters and citizens at large. Libby v. Railroad, 40 Mo. 5; Jennings v. Railroad, 99 Mo. 395; Weber v. Railroad, 100 Mo. 201.
Black, J. Sherwood, C. J., is of the opinion that the judgment should be reversed, but does not agree to remanding the cause.
IN BANC.
This is an appeal prosecuted by the defendant from a judgment in favor of plaintiff in a personal damage suit. The plaintiff was injured by a passenger train, while in the employ of the defendant as a night switchman, so that it became necessary to amputate his leg between the knee and ankle. He founds his action on the violation of an ordinance of the city of St. Louis, which limits the rate of speed of trains to six miles per hour.
The plaintiff had been engaged in railroad work for thirteen years, eleven years of that time in the capacity of a conductor on another road entering the city of St. Louis. He had been in the employ of the defendant as night switchman at the defendant's Seventeenth street yards in St. Louis for five nights preceding the night on which he received the injuries of which he complains. The accident occurred at night, between ten and eleven o'clock at a point near the Eighteenth street bridge. The Seventeenth street yards are just east of the Eighteenth street bridge. There is what is called a lead track extending from the Seventeenth street yards westward on a curve to the north under the bridge, and, thence, westward on a curve to the south, but the degree of these curves is not stated. There are three tracks passing under the bridge, the first or south one is this lead track, the next one north of it is called the east-bound main track, and to the north of that is the west-bound main track. Both of these main tracks curve to the south after passing under the bridge going from the east to the west; but here again the degree of the curve is not stated. There is a spur track which leaves the middle or east-bound track at a point just west of the bridge and extends westward between that track and the lead track. At the time of the accident there were cars standing on the spur track at a point west of but near the bridge.
The plaintiff and his crew were engaged in moving a train of fifteen or more cars from the Seventeenth street yards. After the engine and some six or eight cars passed under the bridge going west the plaintiff got off on the ground and stepped north some six or eight feet to and across the middle or east-bound track to a point some fifteen feet east of the bridge. He then looked west between the cars standing on the spur track and his train, then moving westward, and gave the engineer signals to stop and to back up. He then stepped back towards his train, and as he was clearing the east-bound track his foot was caught by the pilot of the engine of an east-bound passenger train, called the Kirkwood Accommodation. It was necessary for the plaintiff to get off his train and step over the track as he did in order to get in line with his engineer so as to give the signals. He says he could not see the incoming passenger train until it passed around the cars standing on the spur, though some of his evidence tends to show that he could have seen the headlight of the engine drawing that train for a distance of one hundred and eighty feet from where he stood. He says he did not see the incoming train; that he just stepped across the track, gave his engineer a signal with his lantern to stop, then two signals to back up; that he then started back and was caught; and that it was all the work of a minute or thirty seconds. He says he knew this Kirkwood train came in every night, but that he had no time-card and did not know when it was due, and was not the foreman of his crew.
The evidence of the plaintiff and that of another witness is to the effect that this Kirkwood train was moving at a rate of speed from twenty to twenty-two miles per hour. The conductor of that train gave it as his opinion that his train was running at a speed not exceeding ten or twelve miles per hour, and assigns as a reason therefor that it was customary to slack up at the point where the accident occurred. He says his train was running on the time given by a time-card prepared and promulgated by the defendant. This time-card was put in evidence, and it calls for a rate of speed exceeding that specified in the ordinance. The ordinance is in these words:
The case was submitted to the jury on this evidence produced by the plaintiff; and the first complaint is that the court erred in overruling the defendant's demurrer to the evidence. In this connection the defendant seeks to have the above ordinance ruled out of the case for these alleged reasons: First, because the right of the city of St. Louis to regulate the speed of railroad trains is implied from the express power conferred upon it to regulate the use of the streets; hence, the ordinance should be construed as applying to streets and crossings only; second, because the ordinance was not designed for the protection of the defendant's employes, and the plaintiff can derive no benefit or protection therefrom.
1. As to the first of these propositions it may be observed that our attention has not been called to any provision of the charter of the city of St. Louis, which gives the city power, in terms, to regulate the speed of railroad trains; but the charter, among other things, gives the mayor and assembly power to regulate the use of streets; to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health; to declare, prevent and abate nuisances on public or private property and the causes thereof; and to pass all such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures.
It is well to bear in mind that laws and ordinances regulating the speed of railroad trains are police regulations purely. Grube v. Railroad, 98 Mo. 330, 11 S.W. 736; Knobloch v. Railroad, 31 Minn. 402, 18 N.W. 106; Railroad v. Deacon, 63 Ill. 91; Thorpe v. Railroad, 27 Vt. 140. As said in the case last cited: "This police power of the state extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the state." Indeed, regulating the speed of railroad trains is one of the many instances of an exercise of the police power given by Chief Justice Redfield in that case. The delegation of such a power to a municipal corporation need not be given in express terms. Says Judge Dillon: "Resulting from the power over streets, and to protect the safety of citizens and their property, municipal corporations, in the absence of legislative restriction, may control the mode of propelling cars within their limits, may prohibit the use of steam power, and regulate the rate of speed." 2 Dillon on Mun. Corp. [4 Ed.] sec. 713.
Speaking of the power of a city to prohibit the propelling of cars by steam through a city Redfield says: "We should entertain no doubt of the right of the municipal authorities of a city or large town to adopt such an ordinance without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdictions." 2 Red. on Railways [5 Ed.] 577-8. In Railroad v. Haggerty, 67 Ill. 113, objection was made to an ordinance limiting the rate of speed of...
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