Merz v. Missouri Pacific Ry. Co.

• Decision Date: 04 December 1883
• Citation: 14 Mo.App. 459
• Parties: ANTON MERZ, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

14 Mo.App. 459

ANTON MERZ, Respondent,

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 4, 1883.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

E. A. ANDREWS, for the appellant.

FREDERICK GOTTSCHALK, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages by the father of a minor child, who was run over by one of the locomotives of defendant, thereby losing his arm. There was a verdict and judgment for the plaintiff for $1,703.

Another action by the boy himself for the damages occasioned to him by the same injury was appealed to this court, and the judgment affirmed at the last March term. 13 Mo. App. 589.

Counsel for appellant states in his brief that this case rests entirely upon different proof from that in the boy's own case. I have read the entire testimony in both cases, and I think that the testimony on behalf of plaintiff is so much the same in both, that the statement made by me in writing the former opinion might very well serve in this case. If the plaintiff's case was the same as before, it is quite immaterial for the purposes of this appeal that defendant may have strengthened his defence. The weight of the evidence was for the trial court; we are not concerned with that at all.

There was testimony tending to show that the accident happened on defendant's track in that part of St. Louis called Carondelet, in the block between Vine Street on the north and Stein Street on the south. A part of the ground to the west of the railroad tracks is leased by defendant, and was being used as a quarry. Some men were quarrying there, for the lessee of defendant, at the time of the accident, and the son of plaintiff was engaged in hauling refuse from the quarry, to fill up around the railroad track. Two tracks ran north and south, to a switch somewhat north of Vine Street. The tracks were trestle work, but the ground had been filled up in most parts up to the ties, and in some places extended beyond the ties on the west. In other parts there was a sheer jump of several feet, if you wanted to leave the track. East of the track was an old building used by the quarrymen as a privy. The usual mode of reaching this privy was to get on the track, walk about thirty-five feet north, and go down. The privy could be reached by way of Stein Street, but that was a round-about way. The boy Joseph, who was a child of fourteen years at the time, left his cart at the west side of the track, and made his way to the privy, taking the nearest cut across the tracks. On his way back he passed under the eastern trestle work. As he approached the western track he saw a train of flat cars pass north. When it had passed, he got on the western track and walked south. He says he could not see from the center of the track to the switch. He listened and looked half round, but saw nothing. There was a high wind. He neither heard nor saw the cars until he was knocked down by them, after he had walked about twenty-two steps south on the track, and was within a step of reaching the point at which he could have left the track. He says he walked fast.

The locomotive which the boy had seen pass with flat cars, was engaged in ““kicking” cars from one track to the other. The cars were run north to the switch. When they passed the switch, the brake was set in a manner that was calculated to stop cars in the middle of the block. The cars were then “kicked” by the locomotive, and ran south on the western track, with no one on them. The brakeman and engineer at the switch saw the boy when the three flats were beyond their control, and they shouted; but they were at the switch, over 300 feet from the boy. He did not hear them. The cars passed over his arm and stopped at from twenty to twenty-five feet beyond the place where he was struck down.

Very full instructions as to negligence and contributory negligence were given, at the instance of the plaintiff and defendant. It is not necessary to set out or comment upon these instructions, since the appellant makes only two points in this court: 1st. That the court erred in admitting in evidence a certain municipal ordinance; and 2d, that the court erred in not sustaining defendant's demurrer to the evidence, because there was no evidence of negligence on the part of defendant, and the evidence of contributory negligence was such as to preclude a recovery.

1. The ordinance in question provides, that it shall not be lawful for any car or locomotive propelled by steam to run within the limits of the city of St. Louis at a speed exceeding six miles an hour; and that, when moving, the bell of the engine shall be constantly sounded within said limits; and, if any freight car, cars, or locomotives propelled by steam be backing within said limits, a man shall be stationed on the top of the car at the end of the train furthest from the engine to give danger signals; and no freight train shall, at any time, be moved within the city limits, without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engines.

It is contended that the city of St. Louis had no power to pass this ordinance.

The city has, under its charter, express power to regulate the use of all streets within its limits (Charter, Art. III., sect. 26, subd. 2), and to regulate all vehicles, business, trades, and avocations. Ib. subd. 5. But it is well settled, both on principle and authority, that the municipal authorities of large towns have the right to adopt such ordinances as the one cited, by the virtue of their general supervision over the police of their respective jurisdictions. Whitson v. City, 34 Ind. 396; Neier v. Railroad Co., 12 Mo. App. 25; B. & N. F. R. R. v. City, 5 Hill (N. Y.), 209. “We should entertain no doubt,” says Judge Redfield (2 Redf. on Rys., 578), “of the right of the municipal authorities of a city or large town to adopt such an ordinance” ( e. g., one prohibiting the propelling of cars through any part of the city by steam) “without any special legislative sanction, by virtue of the general supervision which they have over the police of...