Nutter v. Chicago

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 328
• Court: Missouri Court of Appeals
• Parties: DARWIN J. NUTTER, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

22 Mo.App. 328

DARWIN J. NUTTER, Respondent,

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

May 24, 1886.

APPEAL from Clay Circuit Court, HON. GEO. W. DUNN, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action to recover the value of a cow killed by one of defendant's trains, in the city of Liberty, in this state. The ground of recovery was stated in the petition as follows:

“Plaintiff states that the cause of said killing was because the said servants and agents were running said cars, locomotive and tender at a reckless and unlawful rate of speed, in violation of the law and the ordinance of said city of Liberty, which said city of Liberty is a city duly incorporated under the laws of the state of Missouri; that said killing of said cow was caused by the wrongful acts of defendant.”

Among other evidence offered by the plaintiff was the following ordinance of the city of Liberty:

“Section 41. Any person or persons operating a railroad in the city of Liberty, or any agent of such persons, or railroad conductor, or engineer, who shall run a locomotive, or cars, or train of cars, within the corporate limits of the city of Liberty, at a greater speed than five miles an hour, shall be guilty of a misdemeanor.”

The defendant, by its attorney, admitted the adoption of the ordinance by the city authorities, but objected to the introduction of the same in evidence; because the city authorities of Liberty had no authority to pass the ordinance, and because the ordinance, if authorized, was not pleaded or set up in plaintiff's petition.

The court overruled the defendant's objections and permitted the plaintiff to read the ordinance in evidence.

The court gave for the plaintiff the following instruction:

“If the jury believe from the evidence that the cow of the plaintiff was struck and killed at the time alleged in the petition, by an engine and cars operated by the agents and servants of the defendant, over the track of the Hannibal and St. Joseph Railroad Company, at a point on said track within the corporate limits of the city of Liberty, and further believe that the said engine and cars were running at a greater rate of speed than five miles per hour, and that said cow was struck and killed in consequence of the running of said cars at a greater rate of speed than five miles per hour, then the jury will find for plaintiff, and assess his damages at the value of said cow as shown by the evidence.”

The court, of its own motion, gave the following instruction to the jury:

“Unless the jury find from the evidence that the cow in controversy was killed in consequence of the high rate of speed in running defendant's train they will find for the defendant, notwithstanding the train was running at a higher rate of speed than five miles an hour.”

M. A. Low, for the appellant.

I. The averment in the petition that the city of Liberty “is a city duly incorporated under the laws of the state of Missouri” is insufficient to enable the court to take judicial notice of its powers. Courts cannot take judicial notice of charters incorporating towns, as they do of public statutes. Inhabitants of Butler v. Robinson, 75 Mo. 192; Rev. Stat., sect. 3549. If the city was incorporated under the general law that fact should have been averred and proven to enable the court to take judicial knowledge of its powers. City of Hopkins v. Railroad, 79 Mo. 98. The act should have been pleaded by its title. Wisdom v. Wabash, St. L. & Pac. Ry. Co., 20 Mo. App. 324.

II. The ordinance itself was not sufficiently pleaded to enable plaintiff to introduce it in evidence. Courts do not take judicial notice of the ordinances of a municipal corporation, unless directed by charter or statute so to do. And when such ordinances are sought to be enforced by action, they should be set out in the pleadings, at least, in substance. Mooney v. Kennett, 19 Mo. 551; Dill. Mun. Corp. (2 Ed.) sect. 346.

III. The ordinances of a city are only valid so far as they are reasonable. The naked averment that a train was being run faster than the law or an ordinance justified, raises no question of fact and presents no issue for the jury.

IV. There was no evidence tending to show that the cow was killed “in consequence of the running said cars at a greater rate of speed than five miles per hour.” Kelly v. Railroad, 75 Mo. 138; Powell v. Railroad, 76 Mo. 80.

V. The instruction asked by defendant, requiring the jury to return a verdict for defendant, should have been given. The speed of the train was not reckless and there was no attempt to prove it so.

VI. The motion for new trial should have been granted.

SAM'L HARDWICKE, for the respondent.

I. The city of Liberty was incorporated, by an act of the General Assembly, March 28, 1861 (Laws 1860, p. 209), and was declared to be a public act. In such case the courts will take judicial notice of it. Bowie v. Kansas City, 51 Mo. 454.

II. Neither was it necessary to plead or prove the ordinances of the city. See div. 38, of sect. 1, Art. 3, of said act. It is sufficient if the ordinance is shown in evidence, and is preserved in the bill of exceptions. Cox v. St. Louis, 11 Mo. 431.

III. It is negligence to permit a train to run at a reckless rate of speed, and under this general allegation it may be shown that an animal was killed in the corporate limits of a city; that the city had an ordinance regulating the rate of speed, and that...