Fath v. Tower Grove & LaFayette Railway

• Decision Date: 29 June 1891
• Citation: 16 S.W. 913,105 Mo. 537
• Parties: Fath v. Tower Grove & LaFayette Railway, Appellant
• Court: Missouri Supreme Court

16 S.W. 913

105 Mo. 537

Fath v. Tower Grove & LaFayette Railway, Appellant

Supreme Court of Missouri, First Division

June 29, 1891

Certified from St. Louis Court of Appeals.

Affirmed.

Hitchcock Madill & Finkelnburg for appellant.

(1) Clause 4 of section 1246 of article 6 of the revised ordinances of 1887, of the city of St. Louis, is void in so far as it undertakes to fix a standard of diligence or liability for negligence in civil suits at common law against street railway corporations. 39 Mo.App. 447. (2) The instructions given for plaintiff, in following the language of the city ordinance here in controversy, require a decree of diligence on the part of defendant's servants not warranted by law. The ordinance in question among other things requires defendant's servants in every case of danger to accomplish the utmost physical possibility which can be attained in stopping a car under any circumstances; a measure of diligence not required of a carrier even towards a passenger, much less in respect of a stranger. Dougherty v. Railroad, 97 Mo. 647; Doss v. Railroad, 59 Mo. 27. (3) The care incumbent on railroad companies after discovering the perilous condition of a person on the track is ordinary or reasonable care. Such is the law of Missouri. Dunkman v. Railroad, 95 Mo. 232; Guenther v. Railroad, 95 Mo. 286; Frick v. Railroad, 75 Mo. 595; Whalen v. Railroad, 60 Mo. 323, Brown v. Railroad, 50 Mo. 461. (4) A city ordinance cannot change the common-law liabilities of a civil nature between private parties, nor fix a new standard of negligence as a basis for an action on the case. Heeney v. Sprague, 11 R. I. 456; Railroad v. Ervin, 89 Penn. St. 71; Van Dyke v. Cincinnati, 1 Disney, 532; Flynn v Canton Co., 40 Md. 612; Kirby v. Boylston, 14 Gray, 242; Jenks v. Williams, 115 Mass. 217. (5) The right of a municipality to regulate the use of its streets by railways does not authorize it to change the fundamental rules of law governing the liabilities of a civil nature -- neither to increase nor to diminish them. Ordinances must be in harmony with the general laws of the state. Railroad v. Railroad, 72 Mo. 70. (6) The grant of legislative power to the municipal assembly of the city of St. Louis is expressly limited in its charter to the enactment of ordinances "not inconsistent with the constitution, or any law of this state." Charter, art. 3, sec. 26. And the constitution provides that "such charter and amendments shall always be in harmony with and subject to the constitution and laws of Missouri." Ewing v. Hoblitzelle, 85 Mo. 64. (7) The ordinance provision here in controversy, though sometimes permitted to go unchallenged, has never been distinctly passed upon by this court. The case of Liddy v. Railroad, 40 Mo. 506, relied upon by plaintiff, is no exception to the above statement. A close examination of that case will show that the ordinance in question, though referred to in the petition, was ignored in the trial and in the instructions given, and that this court did not have it judicially before it on the appeal. (8) The instructions for plaintiff and defendant respectively are absolutely and irreconcilably contradictory on the question of negligence, so that the case was not submitted to the jury upon any intelligible theory of the law on the subject, and the case ought to be remanded for a new trial on that ground. Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612.

A. R. Taylor and David Goldsmith for respondent.

(1) The validity of the ordinance in question was sustained in Liddy v. Railroad, 40 Mo. 506. That decision has been tacitly recognized as establishing the validity of the ordinance, and it is for that reason that it has passed unchallenged, though brought before the courts in McCarthy v. Railroad, 92 Mo. 536; Dunn v. Railroad, 98 Mo. 652; Lamb v. Railroad, 33 Mo.App. (2) A street railway company has no general right of occupancy of a street; only has such right as it may obtain by special grant, and is subject to whatever limitations the granting power may attach to it. Certainly the exaction of increased vigilance on the part of the railway company toward the general public than might otherwise be requisite is in the very line of what ought to be required, and, if a municipality has the right to prescribe any condition to its grant, that should be the very first. "The right of the city to pass reasonable ordinances for the regulation and government of railways in running trains within the limits is well settled." Merz v. Railroad, 88 Mo. 676; Bergman v. Railroad, 88 Mo. 684. "A violation of any such ordinance is negligence per se; and, if personal injury to a citizen follows and results from such violation, then the cause of action of the injured party is complete."

Sherwood, P. J. All concur, except Barclay, J.

OPINION

Sherwood, P. J.

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, of section 1246, article 6, revised ordinances, 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 twenty-sixth day of July, 1884, between six and seven 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 eastside 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 northwestern direction without looking ahead; that he struck the car between the mule and the dashboard; that he fell and was caught by the brake rod 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...