Gebhardt v. St. Louis Transit Co.

• Decision Date: 16 December 1902
• Citation: 71 S.W. 448,97 Mo. App. 373
• Parties: GEBHARDT v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

71 S.W. 448

97 Mo. A. 373

GEBHARDT v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

December 16, 1902.

STREET RAILROADS—NEGLIGENCE — CITIES—POLICE POWER—"VIGILANT WATCH ORDINANCE" — INSTRUCTIONS — EVIDENCE — SUFFICIENCY—CONDUCTOR—DUTIES.

1. McQuillin's Ann. Mun. Code (page 797, § 1760), providing that the person in charge of a street car shall keep a vigilant watch for all vehicles and persons on foot, and, on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible, is a police regulation conferring a right of action on a party injured in consequence of a violation of it, without any allegation or proof that the ordinance has been accepted by the street car company.

2. Inasmuch as the meaning of the phrase "shortest time and space possible" is uncertain, the incorporation of the ordinance bodily in an instruction in a personal injury action against a street railroad company is misleading.

3. A petition in an action for personal injuries which joined in the same count a cause of action for common-law negligence and one for negligence under the provisions of a city ordinance is not objectionable for misjoinder of causes of action.

4. Where plaintiff, injured by a street car at a crossing, testified that he could not see the car on account of an obstruction, and that he did not hear it, it was proper to submit the issue of contributory negligence to the jury, though other witnesses, similarly or not so advantageously situated, testified that they saw the car 150 feet away.

5. The conductor of a street car is not required to keep a lookout to avoid accidents at crossings.

Appeal from St. Louis circuit court; Warwick Hough, Judge.

Action by George B. Gebhardt against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Hannauer & Schery, for respondent.

BLAND, P. J.

The petition charges that: "On July 27, 1900, while plaintiff was driving a horse and buggy west on Courtois street, in the city of St. Louis, across defendant's track on Michigan avenue, his buggy was struck and demolished by a car of the defendant, throwing him to the center of the defendant's track, dragging him more than fifty feet. and causing a fracture of one bone of the right arm, and other injuries. The negligence charge is: (1) That the employés of the defendant in charge of the car negligently and carelessly and unskillfully ran and operated said car at a highly improper, great, and injurious rate of speed. (2) That the motorman in charge of the car failed to keep a vigilant watch ahead for the plaintiff, and failed to stop said car within the shortest time and space possible under the circumstances. (3) That the defendant, by its agents, failed to ring the bell or give any warning of the approach of said car." The petition then set out the ordinance commonly called the "Vigilant Watch Ordinance," and charged that the motorman of defendant's car violated its provisions, and that "the failure of defendant to keep the provisions of said article, as it was bound to do, directly contributed to cause the injuries to plaintiff herein complained of." Defendant moved the court to compel plaintiff to elect upon which one of the causes of action stated in the petition he would stand, for the following reasons: "(1) Because the plaintiff has improperly united in the same count of his petition a cause of action founded upon common-law negligence with one arising upon what is commonly known as the `Vigilant Watch Ordinance.' (2) Because the plaintiff has improperly united in the same count of his amended petition a cause of action arising ex delicto with another cause of action arising ex contractu. (3) Because the plaintiff has improperly united a cause of action at common law with a cause of action based upon an ordinance." The motion was denied. The answer was a general denial and a plea of contributory negligence, alleging that plaintiff drove upon the track in front of a moving car without looking or listening for its approach, which he might have seen or heard, and that he negligently whipped up his horse and attempted to drive across in front of the approaching car when it was too close for him to safely do so. The reply was a general denial. The evidence is that plaintiff was driving west on Courtois street in a storm buggy, with the curtains raised, in daylight, in the city of St. Louis, on the 27th day of July, 1900; that Courtois street crosses Michigan avenue, running north and south. On Michigan avenue is a single railroad track. While attempting to cross Michigan avenue on Courtois street, plaintiff's buggy was struck by defendant's electric street car running north, and plaintiff was injured. Plaintiff's evidence is that he listened before attempting to cross Michigan avenue, but did not hear the approaching car; that he looked, but could not see it, for the reason that his view was obstructed by a wagon; and that he did not see the car until it was upon him. Other witnesses testified that they saw the car as it approached the crossing, and that the motorman in charge had his head turned toward the inside of the car, seemingly engaged in conversation with some one in the car. On the part of defendant the evidence tends to prove that, had plaintiff listened, he could have heard the car, and, had he looked, he could have seen it; that the wagon he mentioned as obstructing his view did not obstruct it, and that he could have seen the car at least 150 feet south of the crossing, had he looked; that the car was running at a speed not exceeding 6 or 7 miles per hour, and that the bell was sounded 150 feet from the crossing until it collided with plaintiff's buggy; that the motorman saw the plaintiff, when he was within 22 to 23 feet of the track, stop his horse, and then suddenly whip it up and undertake to run around the car and make the crossing ahead of it; that, as soon as he saw this move on the part of plaintiff, he reversed the power, and another motorman, who was on the platform with him, applied the brakes; and that every effort was made by both to stop the car, but it was so near onto plaintiff that it could not be stopped in time to prevent the injury. Plaintiff recovered a judgment, from which the defendant, after an unavailing motion for new trial, appealed.

On the motion to elect, and throughout the trial, the court treated what is commonly known as the "Vigilant Watch Ordinance" as a police regulation. The correctness of this view of that ordinance is challenged by the appellant. Its contention is that the ordinance is contractual, and that a street railroad company cannot be held to the extraordinary care the ordinance requires of a motorman unless its acceptance of the ordinance is both pleaded and proved by the plaintiff. The fourth subdivision of section 1760 (the ordinance in question), as found in McQuillin's Ann. Mun. Code, p. 797, reads as follows: "The conductor, motorman, gripman, driver, or any other person in charge 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." In Fath v. Railway, 105 Mo. 537, 16 S. W. 913, 13 L. R. A. 74, it was held that the city of St. Louis had power to pass the ordinance, but that it was beyond its power, by legislation, to create a civil liability enforceable at common law, but that it might exact of a street railway company compliance with the ordinance as a condition for the privilege of laying its tracks in the streets of the city, and that a yielding by the street railway company to the exaction would create a contractual relation between the city and the company, and a breach of this contract, whereby a private person was injured, would render the company liable to such person for the injury. The doctrine announced in the Fath Case has been approved in Senn v....