Lasater v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 04 November 1913 |
| Citation | 160 S.W. 818,177 Mo.App. 534 |
| Parties | SARAH L. LASATER, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
REVERSED AND REMANDED. CAUSE CERTIFIED TO SUPREME COURT.
James F. Green for appellant.
(1) The ordinance read in evidence was inoperative and void as to trains used exclusively for the carrying of the United States mails, and plaintiff's instructions based on said ordinance were therefore erroneous. Railroad v Illinois, 163 U.S. 154; State v. Railroad, 212 Mo. 681. (2) The court erred in refusing to give defendant's instruction No. five on the measure of damages. Boyd v. Railroad, decided March 28, 1913, not yet reported. Casey v. Railroad, 116 Mo.App. 235; King v. Railroad, 98 Mo. 235. (3) Plaintiff's instruction No. three is erroneous in authorizing the jury to award compensation for loss of support to plaintiff and her minor child, as there was no evidence with reference to her husband's earning capacity. Davidson v Railroad, 211 Mo. 345; Palmer v. Railroad, 142 Mo.App. 457; Smoot v. Kansas City, 194 Mo. 525; Radtke v. Box Company, 229 Mo. 21.
A. R and Howard Taylor for respondent.
(1) The first contention presented by appellant is that the trial court erred in admitting in evidence the ordinance of the city of St. Louis, limiting the speed of engines and cars propelled by steam power within the city of St. Louis because, as contended, that ordinance as applied to mail trains is inoperative and void. This contention is untenable on the following grounds: (a) While it might be within the power of Congress to prescribe a regulation of the speed at which a mail train should move, Congress has made no such regulation. It is a fundamental principle of this Government that as to powers conferred on the Federal Government by the Constitution, until Congress or the Federal Government does act, the State has the power to make police laws on the subject to protect its citizens. (b) The power of the State or the city under authority from the State to make reasonable regulations for the operations of trains carrying mail to protect the lives and safety of its citizens has been at all times upheld. Railroad v. Illinois, 163 U.S. 154; Railroad v. Illinois, 177 U.S. 516; Railroad v Mayes, 201 U.S. 328; State v. Railroad, 212 Mo. 680; State v. Addington, 77 Mo. 116; Cooley on Constitutional Limitations (3 Ed.), 581. (2) The courts of Missouri since a very early period have held that mail clerks, newsboys, porters of Pullman cars, etc., were passengers. Magoffin v. Railroad, 102 Mo. 543; Mellor v. Railroad, 105 Mo. 460; Jones v. Railroad, 125 Mo. 666; Graham v. Railroad, 66 Mo. 536; Tibbe v. Railroad, 82 Mo. 300; Carroll v. Railroad, 88 Mo. 239. (3) Our courts have held that ordinances of the city of St. Louis and other cities prescribing a rate of speed at six and ten miles an hour for railroads was not an unreasonable restriction of such trains. Merz v. Railroad, 88 Mo. 677; Dillon on Mun. Corp., sec. 713; Railroad v. Richmond, 96 U.S. 521; Grube v. Railroad, 98 Mo. 334-338; Bluedorn v. Railroad, 108 Mo. 445; Gratiot v. Railroad, 116 Mo. 467; Jackson v. Railroad, 157 Mo. 639. An ordinance need not be limited to public highways. Grube v. Railroad, 98 Mo. 338; Prewitt v. Railroad, 134 Mo. 626. (4) Appellant under his second point complains of the action of the court in refusing to give defendant's instruction number five on the measure of damages--as appellant entirely failed to complain of the verdict as excessive, in his motion for a new trial he has no standing in court to now complain of the verdict as excessive. Sec. 2081, R. S. 1909; Wiese v. Brown, 102 Mo. 304; Blantown v. Dold, 109 Mo. 69; State ex rel. v. Bank, 144 Mo. 386; McNichols v. Nelson, 45 Mo.App. 454; Turner v. Baker, 103 Mo.App. 397.
This is an action under section 5425, Revised Statutes 1909, for the death of plaintiff's husband. The deceased was a railway postal clerk employed on one of defendant's trains running out of the city of St. Louis, and was killed by the train being derailed within the limits of said city and striking and colliding with a building. The cause was tried before the court and a jury, resulting in a verdict for plaintiff in the sum of $ 7500, and the defendant appeals to this court.
It is unnecessary to review the evidence, for there is no contention that plaintiff did not make a case for the jury. The assignments of error before us pertain to the admitting in evidence of an ordinance of the city of St. Louis regulating the speed of trains within its limits, and alleged errors in the giving and refusing of instructions.
1. The objection to the introduction of the ordinance in question was upon the ground that the city could not regulate the running of trains devoted solely to the carrying of United States mail. The evidence disclosed that the train upon which deceased was riding at the time that he met his death was not a "passenger train," but one carrying mail cars only and devoted exclusively to the carriage of the United States mail. Defendant's contention is, that the entire subject of the handling and transportation of the mails is one exclusively within the control of Congress, and that the latter cannot be hampered in the regulations designed to accomplish this object by mere police regulations of a city with respect to the operation of trains.
That this assignment of error is not well taken is quite apparent, and we shall not enter upon an extended discussion of the question involved. That the State has the power to make and enforce reasonable regulations designed to secure the safety and comfort of passengers, employees, persons crossing railway tracks, etc., in the exercise of the police power of the State is beyond dispute. [See Cleveland, etc., Ry. Co., v. Illinois, 177 U.S. 514, 44 L.Ed. 868, 20 S.Ct. 722; Houston, etc., R. R. Co., v. Mayes, 201 U.S. 321.] Local laws of this character are undoubtedly valid as affecting the operation of mail or other trains engaged in interstate commerce when they do not directly conflict with regulations prescribed by Congress respecting the movements of such trains. It may be that Congress has the power to prescribe certain regulations with respect to the speed of mail trains, but if so, it does not appear that Congress has attempted to occupy this field; nor is any authority shown us for the proposition that such regulations by Congress would supersede local laws and regulations of the precise character above mentioned.
In this connection, there is some contention made by appellant that the deceased was not a passenger. And on this point we are referred to the cases of Price v. Railroad, 113 U.S. 218; Martin v. Railroad, 203 U.S. 284. These cases, however, arose in Pennsylvania and were controlled by a statute of that State and the decisions of the Supreme Court of Pennsylvania thereon holding a mail agent not to be a passenger within the terms of the statute. The Supreme Court of the United States held the statute in question to be valid, but that the application thereof presented no Federal question.
The decisions of the Supreme Court of our State are to the effect that a railway mail clerk is a passenger. [See Magoffin v. Mo. P. Ry. Co., 102 Mo. 540, 15 S.W. 76; Mellor v. Mo. P. Ry. Co., 105 Mo. 455, 16 S.W. 849.]
II. As to the alleged errors in the giving and refusing of instructions, we need to notice only the instructions pertaining to the measure of damages.
At the request of plaintiff, the court instructed the jury that, if they found for the plaintiff, they should return a verdict in a sum of not less than two thousand dollars and not more than ten thousand dollars, in the discretion of the jury. And that, in arriving at their verdict, the jury might take into consideration all the facts and circumstances in evidence attending the killing of plaintiff's husband; any pecuiary loss sustained by plaintiff by reason of the loss of the support of her husband and by reason of having to support a minor child of deceased during its minority.
The defendant, among other instructions, requested the court to give the following:
"The jury are further instructed that, if you should find the issues for the plaintiff, you should not allow her any sum as a penalty, in excess of the minimum amount fixed by law in case of injuries which result in the death of a person riding on a train, to-wit, the sum of two thousand dollars."
This instruction the court refused, and the appellant now insists that its refusal constituted reversible error.
This assignment of error is predicated upon the opinion of the Supreme Court, in banc, in Boyd v. Railroad Co., 249 Mo. 110, 155 S.W. 13, on the second appeal of that case. That opinion had not been rendered when this cause was tried below; and a careful examination thereof convinces us that this assignment of error must now be held to be well taken. In construing the statute, as amended in 1905, the Supreme Court pointedly holds that a recovery thereunder is penal up to the sum of two thousand dollars, and compensatory to the extent that the plaintiff may recover above that sum, saying:
To continue reading
Request your trial