Merz v. Missouri Pacific Ry. Co.
| Decision Date | 30 April 1886 |
| Citation | 88 Mo. 672 |
| Parties | MERZ v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
Bennett Pike for appellant.
(1) The court below erred in permitting the plaintiff, against defendant's objections, to read to the jury the ordinance referred to in the petition, to-wit: Ordinance number 10,305, entitled “An ordinance to regulate the speed within the limits of the city of St. Louis of cars and locomotives propelled by steam power;” and also in not giving to the jury at the close of the case, defendant's instruction excluding such ordinance from the consideration of the jury, for the reason that said ordinance is unreasonable, unauthorized by any power in the charter of the said city of St. Louis, and is repugnant to the constitution of the state of Missouri and the constitution of the United States. 2 R. S., sec. 26, p. 1585; City of St. Louis v. Weber, 44 Mo. 550; Commonwealth v. Worcester, 3 Pick. 462-473; Cooley on Con. Lim., sec. 201; Cooley on Torts, 286; Gaines v. Buford, 1 Dana, 481-490-491; Hargreaves v. Nickerson, 25 Mich. 1; Heeney v. Sprague, 11 R. I. 456; County of San Mateo v. Railroad, 13 Federal Reports, 722. (2) The demurrer to the evidence at the close of the case should have been sustained, because plaintiff relied solely for his ground of recovery upon the violation of section 2, of ordinance 10,305, entitled “An ordinance to regulate the speed within the limits of the city of St. Louis of cars and locomotives propelled by steam power,” which said section is unconstitutional and void. Cooley's Con. Lim. [5 Ed]. p. 178, sec. 5, side p. 148; Mewherter v. Price, 11 Ind. 199; Igae v. State, 14 Ind. 239; State v. Young, 47 Ind. 150; Ryerson v. Utley, 16 Mich. 269; People v. Dehaney, 20 Mich. 349; Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Weason v. Lufsley, 43 Ala. 224; Jones v. Thompson, 12 Bush, 394; Bushing v. Lebree, 12 Bush, 198; State v. Kinsella, 14 Minn. 524; Cutlip v. Sheriff, 3 West. Va. 588; State v. Squires, 26 Iowa, 340; State v. Lafayette Co., 41 Mo. 39; State v. Bankers' Ass'n, 23 Kas. 501; Failing v. Commissioners, 53 Barb. 70; City Kansas v. Payne, 71 Mo. 159; Dillon on Municipal Corp., secs. 226-246; Bartlett v. O'Donaghue, 72 Mo. 563.
F. Gottschalk for respondent.
(1) The city has, under its charter, express power to regulate the use of all streets within its limits, to establish and maintain a system of police, etc. (Charter art. 3, sec. 26, sub. 2), and to regulate all vehicles, business, trades and associations. Ib., sub. 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 virtue of their general supervision over the police of their respective jurisdictions. Whitson v. City, 34 Ind. 396; Neier v. Railroad, 12 Mo. App. 25; Railroad v. City, 5 Hill, 209 [N. Y.]. 2 Redfield Railways, 578, says: “We should entertain no doubt of the right of the municipal authorities of a city or large town, to adopt such an ordinance, without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdiction.” Cooley on Const. Lim. [3 Ed.] 576; Dillon on Mun. Corp. [3 Ed.] secs. 393, 713; Carroll v. Railroad, 38 Iowa, 120. (2) The plaintiff does not rely solely upon the provisions of the ordinance for a recovery. The petition alleges that defendant's agents, carelessly, heedlessly, unlawfully and wrongfully operated the locomotive and cars in question. The point made by the appellant, for the first time, in this court, that the ordinance is void because of its defective title, ought not to be noticed for the reason, that it was not made in the trial court nor the court of appeals. In the motion for a new trial, there is not one of the eighteen grounds assigned, which makes this point, although every other conceivable criticism of said ordinance is therein asserted. And see: In re Burris, 66 Mo. 446; State v. Miller, 45 Mo. 495; State v. Matthews, 44 Mo. 523; City v. Tiefel, 42 Mo. 598.
This suit was brought by plaintiff to recover damages for the loss of the services of his minor child, who was run over by three of defendant's cars being operated in the limits of the city of St. Louis, whereby he lost his right arm. He obtained judgment in the circuit court for $1,703, which was affirmed by the St. Louis court of appeals, and the case is before us on appeal from that judgment.
The appeal being from a judgment for a less sum than twenty-five hundred dollars gives us no jurisdiction of the case unless it appears that it falls within one of the classes of the cases specified in section twelve, article six of the constitution, where an appeal may be taken from the St. Louis court of appeals to this court without reference to the amount in dispute. One of this class is where the case involves a construction of the constitution of this state or of the United States. It is claimed that the case before us falls within that class, in this, that ordinance 10,305 of the city of St. Louis, which was received in evidence over defendant's objection, and upon which plaintiff relied for a recovery, is violative both of the federal and state constitutions.
The only question, therefore, to be considered on this appeal is, whether the city had power to pass the ordinance in question, and whether it is or is not constitutional. So much of it as is necessary to a fair consideration of the points raised by appellant against its validity is as follows:
“An ordinance entitled an ordinance to regulate the speed, within the limits of the city of St. Louis, of cars and locomotives propelled by steam power. Approved January 22, 1877.
Section 1. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars or locomotives, propelled by steam power, to run at a rate of speed exceeding six miles per hour; but nothing in this section shall be so construed as to apply to any car, cars, or locomotives, running over the track or tracks which are maintained along the river bank between Arsenal street and Elwood street.
Sec. 2. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars, or locomotives, propelled by steam power, to obstruct any street crossing by standing thereon longer than five minutes, and 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 power, be backing within said limits, a man shall be stationed on the top of the car at the end fartherest 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...
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