Fath v. Tower Grove & L. Ry. Co.

• Citation: 105 Mo. 537,16 S.W. 913
• Court: Missouri Supreme Court
• Decision Date: 29 June 1891
• Parties: FATH v. TOWER GROVE & L. RY. CO.

16 S.W. 913

105 Mo. 537

FATH v. TOWER GROVE & L. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

ORDINANCES — VALIDITY — STREET RAILWAYS.

Rev. Ord. St. Louis 1887, art. 6, § 1246, subd. 4, providing that "the conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the cars shall be stopped in the shortest time and space possible," is valid, since, under the charter of the city, franchises are granted to street railway companies on condition that they submit to all ordinances regulating them, and it is competent, therefore, for the city, in consideration of the franchise granted, to impose by ordinance the duty of exercising a high degree of care, and their failure to observe the ordinance renders them liable to the person injured, notwithstanding a fine is also imposed for such failure.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

Action by infant, seven years of age, through next friend, for injuries received by the former in consequence of coming in contact with one of the defendant company's cars, which was alleged to have happened by reason of the negligence of that company, and also because of its negligent failure to observe the requirements of subdivision 4, § 1246, art. 6, Rev. Ord. 1887, of the city of St. Louis. This was the substance of the petition. Said subdivision 4 reads as follows: "Fourth. The conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible." Section 1251 of the same article provides that "any person, corporation, company, or copartnership, or the president, superintendent, or manager thereof, violating or failing to comply with any of the foregoing provisions of this article, except as otherwise provided for, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, be fined not less than $5 nor more than $500." The answer of the defendant was substantially a general denial, as well as the following: "Defendant * * * charges the fact to be that the boy, Bernard Fath, sustained certain injuries at the time alleged, which injuries were caused by his own acts and conduct, in this: that while one of defendant's cars was moving along Columbus street, in the city of St. Louis, in a usual and lawful manner, said child, without the knowledge of defendant's driver, suddenly and unexpectedly, carelessly, and negligently, ran up to and against the moving car in such manner as to cause it to fall across the track upon which said car was moving; that the driver of said car at the time observed proper care and diligence in the discharge of his duties, and was not guilty of any negligence in the premises. The defendant says that the injuries, if any, sustained by said child * * * were caused by the improper acts and negligent conduct of said child as aforesaid, and by the negligence of said child's parents in permitting said child to be upon the public streets without the care or control of an older person, and were not caused by the negligence or fault of this defendant, or any of its agents or servants." The evidence on behalf of plaintiff tended to show that the plaintiff, Bernard Fath, was a boy between four and five years old when he was injured; that on the 26th day of July, 1884, between 6 and 7 o'clock, and when it was still daylight, said Bernard was on Columbus street, near Carroll, in the city of St. Louis; that he was either upon defendant's tracks, or approaching same, as one of defendant's cars moved northwardly along Columbus street; that the driver of defendant's car either did or by the exercise of proper care and diligence could have seen the boy, and that he was in danger, and could have stopped the car in time to prevent the accident, but that he negligently and carelessly ran against him, resulting in personal injury. Plaintiff's testimony was conflicting as to the extent of the accident, — whether a wheel dragged between the brake-rod and the front wheel until the car was stopped, — but the evidence tended to show that he was knocked down, bruised, and injured; that there were no bones broken; but that he sustained substantial injuries, and suffered pains, and was laid up in bed for a period of time, and still showed some effects of the injury, in the way of stiffness, nervousness, etc. Plaintiff also offered in evidence the fourth clause aforesaid. The defendant objected to the introduction of the ordinance on various grounds; among them, that "said fourth clause of said ordinance is not a lawful rule governing diligence or negligence in this state; that the same is illegal and void, and against the law of the land; and because the city had no right or authority to enact the same." But the court overruled said objection, and said ordinance was admitted. The evidence on the part of defendant tended to show that, owing to some local disturbance of a trifling character, a crowd of men, women, and children had gathered on the sidewalk in front of a house on the east side of Columbus street; that the plaintiff, Bernard, was in the crowd; that, as the car came along, a policeman suddenly scared and scattered the crowd; that the children ran in various directions; that plaintiff ran obliquely in a north-western direction without looking ahead; that he struck the car between the mule and the dash-board; that he fell, and was caught by the brakerod and dragged along, but that the car was stopped in time to prevent the front wheel from passing over him; that the driver of defendant's car acted with great promptness and diligence in stopping the car, and that he could not have become aware of the dangerous approach of plaintiff earlier than he did. The jury found a verdict for the plaintiff in the sum of $600, and there was judgment accordingly, and on appeal to the St. Louis court of appeals that judgment was reversed and the cause remanded; but one of the judges of that court deeming that decision contrary to the decision of this court in Liddy v. Railroad Co., 40 Mo. 506, the cause has been transferred here in conformity with section 6, art. 6, of the constitution. Sections 20, 23, and 25, art. 9, of the constitution require that the charter of the city shall be in harmony with and subject to the constitution and laws of Missouri. Section 26, art. 3, of the city charter also declares: "The mayor and assembly shall have power within the city by ordinance not inconsistent with the constitution or any law of this state or of this charter, * * * (2) to establish, open, vacate, alter, widen, extend, pave, or otherwise improve and sprinkle all streets, avenues, sidewalks, * * * and to regulate the use thereof; * * * (5) to license, tax, and regulate * * * street-railroad cars, livery and sale stables, hackney carriages, private carriages, barouches, buggies, wagons, omnibuses, carts, drays, and other vehicles, and all other business, trades, avocations, or professions whatever; (10) to impose, collect, and enforce fines, forfeitures, and penalties for the breach of any city ordinance. (11) To grant to persons or corporations the right to construct railways in the city, subject to the right to amend, alter, or repeal any such grant, in whole or in part, and to regulate and control the same as to their fares, hours, and frequency of trips, and repair of their tracks, and the kind of rails and vehicles." And sections 1 and 2 of article 10 of the charter provide that "the municipal assembly shall have power, by ordinance, to determine all questions arising with reference to street railroads in the corporate limits of the city, whether such questions may involve the construction of such street railroads, granting the right of way, or regulating and controlling them after their completion; and also shall have power to sell the franchise or right of way for such street railroads to the highest bidder, or, as a consideration...