Dunkman v. Wabash, St. Louis & Pacific Railway Co.

• Decision Date: 06 June 1887
• Parties: Dunkman, Appellant, v. Wabash, St. Louis & Pacific Railway Company
• Court: Missouri Supreme Court

4 S.W. 670

95 Mo. 232

Dunkman, Appellant, v. Wabash, St. Louis & Pacific Railway Company

Supreme Court of Missouri

June 6, 1887

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

A. R Taylor for appellant.

(1) The St. Louis court of appeals was clearly in error as to instruction number eight. (2) The modification of said instruction, as made by the trial court, was necessary to make it harmonize with instruction number two given for the plaintiff, which was the precise law. Harlan v Railroad, 65 Mo. 22; Kelly v. Railroad, 75 Mo 140; Scoville v. Railroad, 81 Mo. 440; Welsh v. Railroad, 81 Mo. 466; Merz v. Railroad, 88 Mo. 672; Bergman v. Railroad, 88 Mo. 678; Rine v. Railroad, 88 Mo. 392. (3) Defendant's instruction number four, given, was a correct declaration of the law upon defendant's theory of the facts. And fully presented the law of the facts to the jury. (4) The court of appeals was in error in supposing that because plaintiff, by taking a position on the car when he was at work, with his back towards the north, without constantly watching and listening for an approaching train, was guilty of contributory negligence that directly caused his injury. The instruction numbered eight, as presented by the defendant, barred plaintiff of a recovery, if such action by plaintiff "contributed directly to bring about his injury," notwithstanding, the defendant's servants failed to observe the provisions of the ordinance, when, by doing so, they would have seen plaintiff in danger, and could have averted the injury by ordinary care. Such instruction completely ignored the question, as to whether defendant's servants saw, or, by the exercise of ordinary care, would have seen and averted injury from plaintiff, notwithstanding he was negligent. Merz v. Railroad, supra; Bergman v. Railroad, supra; Rine v. Railroad, supra. (5) The plaintiff, by the facts supposed in instruction number eight, before the modification by the court, was in a better position to recover than Bergman or Merz, in that he was lawfully on the car, absorbed in his work, whilst they were trespassers upon the track, yet this court held them entitled to recover. (6) The very fact that plaintiff might be lawfully on the track and absorbed in his work, required of defendant the exercise of diligent care. Goodfellow v. Railroad, 106 Mass. 461; 2 Thompson on Neg. 461; Railroad v. State, 33 Md. 542; Stenson v. Railroad, 32 N.Y. 333. (7) There is nothing in the defence pleaded that defendant had an agreement with Donk Bros. & Company that they should have a watchman. This is no excuse for defendant's violation of the ordinance. Defendant could not relieve itself of its statute duty in this way. Speed v. Railroad, 72 Mo. 312. (8) The ordinance was valid. Merz v. Railroad, supra; Bergman v. Railroad, supra.

H. S. Priest, Geo. S. Grover and Joseph Dickson for respondent.

(1) The defendant's demurrer to plaintiff's evidence and the demurrer at the conclusion of all the testimony should have been given: (a) Because plaintiff relied solely for his ground of recovery on the violation of section 2 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." Said section 2 relates solely to the obstruction of the street crossings by trains, the ringing of the bells on engines while in motion, and the manning of the trains while in motion. By section 13, article 3, of the charter of the city of St. Louis, of which courts are required to take judicial notice (Const. 1875, art. 9, sec. 21), it is provided that "no bill * * * shall contain more than one subject, which shall be clearly expressed in its title." The provisions of section 2 of said ordinance are neither expressed, referred to, nor comprehended in the title thereof; and hence the provisions of said section 2 are invalid and inoperative, and no cause of action can be predicated upon the violation of them, or, in other words, no cause of action was alleged or proven. Cooley's Const. Lim., (5 Ed.) p. 178, sec. 5, side p. 148; Mewherter v. Price, 11 Ind. 199; Igoe v. State, 14 Ind 239; State v. Young, 47 Ind. 150; Ryerson v. Utley, 16 Mich. 269; People v. Denahey, 20 Mich. 349; Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsley, 43 Ala. 224; Jones v. Thompson, 12 Bush, 394; Rushing v. Sebree, 12 Bush, 198; State v. Kinsella, 14 Minn. 524; Cutlip v. Sheriff, 3 W.Va. 588; State v. Squires, 26 Iowa 340. The legal effect of this ordinance was a matter alone for the determination of the court. Bartlett v. O'Donoghue, 72 Mo. 563. (b) Because of plaintiff's contributory negligence. Wharton on Neg., sec. 300, et seq.; Drain v. Railroad, 10 Mo.App. 531; Kelly v. Railroad, 11 Mo.App. 1; Renfro v. Railroad, 86 Mo. 302; Taylor v. Railroad, 86 Mo. 457; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80. (2) Instruction number one given for plaintiff was erroneous. Devitt v. Railroad, 50 Mo. 305; Yarnell v. Railroad, 75 Mo. 575. (3) Instruction number two for plaintiff is likewise erroneous. It is defective in not covering plaintiff's entire case. Koenig v. Life Ass'n, 3 Mo.App. 596; Wyatt v. Railroad, 62 Mo. 488; Raysdon v. Trumbo, 52 Mo. 35. It omits the element of knowledge on the part of defendant's servants of plaintiff's dangerous position and the failure to exercise ordinary care after becoming aware of such dangerous position. Yarnell v. Railroad, 75 Mo. 575. Such an instruction has no place in a case of this character, where the plaintiff's negligence was proximate in both time and effect. Schaabs v. Wheel Co., 56 Mo. 173; Cagney v. Railroad, 69 Mo. 424; Zimmerman v. Railroad, 71 Mo. 484; O'Brien v. McClinchy, 68 Me. 552; Murphy v. Deane, 101 Mass. 466; Wharton on Neg., sec. 301; Moak's Underhill on Torts, 283. The court should have stated the converse of this instruction for the defendant. (4) Instruction number three for plaintiff is predicated upon section 2 of the ordinance, and is vicious for that reason. Instruction number four for plaintiff is correct as an abstract proposition, but is misleading in this case by reason of its generality. Yarnell v. Railroad, 75 Mo. 575; Thompson Charging Jury, sec. 71, and cases cited. The same objections apply to instruction number five. (5) Instruction number seven is wrong because it misdirects and misapplies the defendant's evidence upon an issue not made in the case. There was neither plea nor pretense that plaintiff was injured by the negligence of a fellow-servant, or that the watchman was a fellow-servant with plaintiff. (6) The cauda, indicated by italics, appended to instruction number eight, asked by defendant, and given to the jury as amended by the court, presents a most anomalous, if not alarming proposition of law. This instruction tells the jury that, notwithstanding the plaintiff contributed directly and proximately to his own injuries by the many derelictions of duty on his part as supposed in the instruction, yet, if the defendant did, or omitted to do, the things supposed in instruction number two, given for plaintiff, and they also contributed to the plaintiff's hurt, that plaintiff was still entitled to recover. Instruction number two, given for plaintiff, and attached to and made part of this instruction, has never been allowed, except where plaintiff's negligence was a remote cause, technically denominated a condition. Maher v. Railroad, 64 Mo. 276; Henselkamp v. Railroad, 37 Mo. 537; Adams v. Railroad, 74 Mo. 553; Henze v. Railroad, 71 Mo. 636; Harlan v. Railroad, 64 Mo. 480. This amendment to the instruction also submits the question as to what is the proximate cause to the jury. This is eminently a question of law for the court. Henry v. Railroad, 76 Mo. 288. (7) The court erred in its refusal of instructions asked by defendant. Bell v. Railroad, 72 Mo. 50; Miller v. Railroad, 25 Mich. 274.

Ray, J. Sherwood, J., dissents.

OPINION

Ray, J.

This action was brought in the St. Louis circuit court by the plaintiff against the defendant to recover damages, on account of personal injuries sustained by reason of alleged negligence, on the part of the agents and servants of defendant, in the conduct and management of an engine and train of cars within the limits of said city. At the trial before the circuit court, there was a verdict and judgment for plaintiff, from which defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed and the cause remanded, from which the plaintiff appealed to this court.

A brief digest of the opinion of the court of appeals is found in the appendix to the Sixteenth Missouri Appeal Reports, at pages 547, 548, and is to the effect following: (1) An objection to the introduction in evidence of an ordinance, on the ground that the subject is not clearly expressed in its title, cannot be made, for the first time, on appeal; (2) such an objection is waived, if not made at the trial; (3) the rule, that negligence of the plaintiff, which contributes directly to cause the injury complained of, will prevent his recovery, is without exception or qualification. The opinion, itself, is found in the record before us, but it is not otherwise reported, except as above stated. The petition (as said by the court of appeals) predicates the plaintiff's right of recovery upon the violation of an ordinance of the city of St. Louis, numbered 10,305, which requires the observance of certain precautions in the running of locomotives and cars, propelled by steam, in the city of St. Louis. The parts of that ordinance, material to the case, will be noticed hereafter.

The answer contained, (1) a general denial; (2) contributory negligence on the part of the plaintiff. The third branch...