Norton v. East St. Louis Railway Company
| Citation | 203 S.W. 1006,199 Mo.App. 550 |
| Parties | HOWARD NORTON, by his next friend, WALTER R. NORTON, Respondent, v. EAST ST. LOUIS RAILWAY COMPANY, a corporation, Appellant |
| Decision Date | 04 June 1918 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Holland Rutledge & Lashly for appellant.
(1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence: (a) Because there was no evidence of any negligence on the part of the appellant. (b) Because the testimony shows that the respondent was guilty of contributory negligence as a matter of law. Hamm v. United Railways Co., 184 Mo.App. 5; Cole v. Metropolitan Street Railway, 121 Mo.App 610; Kelsay v. Railway Co., 129 Mo. 362, 372; Mockowick v. Kansas City Ry., 196 Mo. 550; Schaub v. Kansas City Ry., 133 Mo.App. 444; Dey v. Railroad, 140 Mo.App. 461; Paul v. United Railways, 152 Mo.App. 577. (2) The court erred in giving respondent's instruction No. 1 as modified by the court of its own motion. The Ordinance of East St. Louis offered in evidence did not forbid the operation of cars at any given time at a rate in excess of twelve miles an hour, but merely provided that the average speed between terminals should not exceed twelve miles an hour. (3) The court erred in refusing to give instruction No. D asked by appellant. See authorities under heading I (b) supra. (4) The court erred in refusing to give instruction No. E asked by appellant. See authorities under heading I (b) supra. (5) The court erred in allowing respondent's witness, Peyton Read, to testify over the objection of appellant that he saw the car in question passing over a street a block west of Seventh street, and that it was then moving at the rate of twenty to twenty-five miles an hour. Such testimony had no tendency to show at what rate the car approached Seventh street or passed over same.
John C. Robertson for respondent.
(1) Violation of the ordinance is negligence per se, and proof of such violation makes a prima-facie case for plaintiff. Yonkers v. Railroad, 182 Mo.App. 558; Bluedorn v. Railroad, 108 Mo. 449, 121 Mo. 258; Lueders v. Railroad, 253 Mo. 166; Swigart v. Lusk, 196 Mo.App. 471; Criss v. U. Ry Co., 183 Mo.App. 392; Hutchinson v. Mo. P. Ry. Co., 161 Mo. 246, 254; Strauchon v. Metropolitan St. Ry. Co., 232 Mo. 587; Nufer v. Metropolitan St. Ry. Co., 182 S.W. 792; Pruitt v. Railroad, 134 Mo. 615; Nier v. Mo. P. Ry. Co., 12 Mo.App. 5. (2) Ordinary care did not require plaintiff to constantly look both ways, even if it were possible, when approaching tracks along a street crossing, while upon the track. It is sufficient if before he attempts to cross he satisfies himself in the usual course of things he can cross in safety. Criss v. United Ry. Co., 183 Mo.App. 392; Gratiot v. Mo. P. Ry. Co., 116 Mo. 451; Strauchon v. Railroad, 232 Mo. 587; Toll v. Railroad, 169 Mo.App. 260; Railroad v. Baddley, 52 Ill.App. 94; Niehaus v. United Ry. Co., 165 Mo.App. 606; Zander v. Transit Co., 206 Mo. 445; Giddings v. Railroad, 133 Mo.App. 610; Murray v. St. Louis Transit Co., 108 Mo.App. 503; Jackson v. Railroad, 157 Mo. 621; Maloney v. United Rys. Co., 183 Mo.App. 292. Woodis v. United Rys. Co., No. 15011, St Louis Ct. of Appeals, May 7, 1918. A court when construing a statute must when consistent with reason, adopt the Construction which will make it operative. Hawkins v. Smith, 242 Mo. 688; Crowley v. Crowley, 167 Mo.App. 414; Spriggs v. Ribinson, 253 Mo. 271; State ex rel. Rippee v. Forest, 177 Mo.App. 245; Craig v. Railroad, 248 Mo. 270.
This is an action for damages on account of personal injuries sustained by reason of a collision between the plaintiff while riding a motorcycle, and one of the defendant's street cars. The collision occurred at the intersection of Seventh street and Illinois avenue in the city of East St. Louis, Illinois. The case was heard in the circuit court of the city of St. Louis resulting in a judgment in favor of plaintiff and against defendant in the sum of $ 450. Defendant in due course brings this appeal.
Plaintiff's amended petition was based upon an alleged ordinance of the city of East St. Louis limiting the speed of street cars to ten miles per hour, and the alleged negligence of the defendant in operating a street car at a rate of speed in excess thereof. The answer was a general denial and a plea of contributory negligence.
At the trial of the case it developed that the ordinance pleaded in the petition had been amended; whereupon plaintiff amended his petition by leave. The ordinance as amended is section 1 of section 1240 of the Revised Ordinances of the city of East St. Louis, Illinois of 1908, which reads as follows:
Plaintiff tried his case upon the theory that the said ordinance limited the speed of street cars to twelve miles per hour and an instruction given by the court at the request of plaintiff was predicated upon a like interpretation. A careful reading of the record before us shows that plaintiff under the allegations of his amended petition failed to make out a case unless the ordinance relied upon can be construed to limit the speed of cars to twelve miles per hour. But we do not think that the ordinance is subject to this construction.
While it is true that the legislative intent is the cardinal rule of the construction of ordinances as well as of statutes yet that does not authorize or warrant a court in speculating as...
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