Rapp v. St. Louis Transit Company

• Decision Date: 28 June 1905
• Citation: 88 S.W. 865,190 Mo. 144
• Parties: RAPP v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

88 S.W. 865

190 Mo. 144

RAPP v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

June 28, 1905

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Boyle Priest & Lehmann and Geo. W. Easley for appellant.

(1) The motions to elect should have been sustained. The petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. City charter, art. 10, secs. 1, 2. It could not be passed under its power to legislate. City charter, art. 3, sec. 26; Fath v. Railroad, 39 Mo.App. 452; Fath v Railroad, 105 Mo. 537; Senn v. Railroad, 106 Mo. 152; Moran v. Car Co., 134 Mo. 641; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 153 Mo. 253; Saunders v. Railroad, 153 Mo. 253; Holwerson v. Railroad, 157 Mo. 245; Anderson v Railroad, 161 Mo. 411; Nellis on St. Rys. 306, sec. 10. The cases of Jackson v. Railroad, 157 Mo. 621, and Weller v. Railroad, 164 Mo. 180 (s. c. 120 Mo. 655), were cases under a speed ordinance and cannot be decisive of the principle here involved, and cannot be held to overrule the long line of cases specially decided on the Vigilant Watch Ordinance. A rule established and followed for a long series of years cannot be fairly overruled by inference or construction from rulings on questions involving entirely different propositions. There is a very broad distinction in the exercise of these two powers. One is public and general, the exercise of sovereignty; the other, private and proprietary. One legislative, the other contractual. State ex rel. v. St. Louis, 145 Mo. 572; Illinois Trust Co. v. Arkansas City, 76 F. 282; Pike's Peak Powder Co. v. Colorado Spring, 105 F. 1; Seltzenger v. Tamaqua, 187 Pa. 539; Schaub v. Lancaster City, 156 Pa. 362; Weston v. Syracuse, 158 N.Y. 274, 43 L.R.A. 678. If these positions are correct, then the plaintiff has joined in the same count a cause of action arising out of contract with two causes of action arising out of tort for common law negligence. The common law distinctions between actions ex contractu and ex delicto are in substance retained by our code. Summer v. Rogers, 90 Mo. 329. The rule in this State is that such actions cannot be blended in the same count. Kendrick v. Railroad, 81 Mo. 521; Harris v. Railroad, 51 Mo.App. 128; Linnville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242. (2) The demurrer to the plaintiff's evidence should have been sustained. The whole of the plaintiff's case is that his wagon was stalled by the side of the track, but sufficiently removed therefrom to permit the car to pass without danger of collision. The plaintiff, well knowing how cars were operated over the tracks, and of the certainty that a car would soon come, turned his horses directly across the track, without looking or listening to see whether a car was approaching or not. Instead of looking or listening, he deliberately turned his back upon the car and disabled himself from seeing its approach. He continued in that position till the shying of one of the horses caused him to look around when the car was almost upon him. There was nothing, during the whole five minutes he says he stood there after swinging his horses eastward across the track, to have prevented his seeing the car, if he had looked, or to prevent his swinging the horses back to their original position, where they would have been out of danger. It can no longer be doubted in this State that it is the duty of a person, situated as the plaintiff was, to exercise reasonable care to avoid injury from the negligence of another. Zumault v. Railroads, 175 Mo. 288; Cooley on Torts (2 Ed.), 674; Little v. Hackett, 116 U.S. 371; Moore v. Railroad, 176 Mo. 528. (3) The court erred in giving the first and second instructions on behalf of plaintiff. It was not only the duty of plaintiff to look and listen before swinging his horses across the track, but it was a continuous duty to look out and swing them back and let the car pass without being delayed. Kelsay v. Railroad, 129 Mo. 372; Hook v. Railroad, 162 Mo. 382; Gahagan v. Railroad, 55 L.R.A. 446, note. Each of these instructions should have added to it "the logical and necessary corollary" that if the failure to look and ascertain that the car was coming, when by so doing the plaintiff might have turned his horses back off the track in time to have avoided the collision, contributed to the collision, the plaintiff cannot recover. Holwerson v. Railroad, 157 Mo. 216; Nellis on Street R'ys, pp. 383-4; Cooley on Torts (2 Ed.), sec. 812; Beach on Cont. Neg. (3 Rev. Ed.), sec. 25; Eswin v. Railroad, 96 Mo. 297.

A. R. Taylor for respondent.

(1) Appellant's first contention is, that the trial court erred in overruling its motion to require the plaintiff to elect on which assignment of negligence he would proceed. This proposition is made in the Supreme Court, urging that a court should require a party to elect on what part of his case he should proceed to trial. There may be a great number of acts of negligence causing an injury and making the cause of action. Yet the plaintiff must choose which of these he will rely upon. This would be a new code of practice -- and one that is wanting in those essential elements of the law, reason and justice. Counsel abstains, as might be expected, from offering a substantial reason for his departure from the old and honored code of practice. In enumerating the essentials of a petition the code prescribes that it shall contain "a plain and concise statement of the facts constituting a cause of action without unnecessary repetition," etc. Now, one of the facts constituting this cause of action was the alleged failure of the motorman to keep a vigilant watch and to stop the car within the shortest time and space possible. This, the petition alleges, "Directly contributed to cause said collision and plaintiff's said injuries." Yet counsel says this is a separate cause of action. If so, then of course the plaintiff could recover on it. For it is a principle of law that a party may have as many recoveries as he has causes of action. If counsel could establish that every act of negligence that contributes to cause an injury is a separate cause of action upon which a recovery might be had, he would set in force a rule disastrous to wrongdoers. A suit could in this case, then, if he be taken as a prophet of the law, be maintained for the common law negligence and injury. And then again for the violation of the ordinance and injury to which it contributed. And in reply to his plea of res adjudicata, we could prove by him that the two causes of action were distinct and the plea res adjudicata not good, for a judgment in one cause of action could have no effect in another. We do not think this contention serious. As to his contention that one ground is founded in tort, the other in contract, he goes back to the graveyard where repose the remains of the Fath case, and calls up its ghost to prove that a law can not be a law unless his client agrees to obey it, and thus he says that a duty imposed by an ordinance depends not on the sovereign will, which declares the law, but upon the agreement of his client to obey the law. Should his client not agree to obey the law, then it is no law. This, we think, this court has in recent years held to be not a sound or correct interpretation of what a law is. There is no necessity that the appellant should have agreed to obey the Vigilant Watch Ordinance. It was passed by the Municipal Assembly of the city of St. Louis for the protection of the lives and limbs of citizens on the streets. There is nothing contractual about it. It is a police regulation, and the Legislature itself could not surrender to a corporation the power of the people to make useful laws for the protection of life and health of citizens. Constitution, art. 12, sec. 5; Matthews v. Railroad, 121 Mo. 316; Hutchinson v. Railroad, 161 Mo. 253; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 79 S.W. 449. (2) There was nothing in the evidence to warrant the plaintiff to believe that appellant would violate the law. He swears that he did not expect a car would run into him while he was trying to get out of the way. In this state of the record, under all authorities, he had the clear right to assume that the law would be obeyed and to act on that assumption. Petty v. Railroad, 88 Mo. 319; Crempley v. Railroad, 111 Mo. 158; Jennings v. Railroad, 112 Mo. 276; Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 79 S.W. 449.

BRACE, C. J. Marshall, J., does not concur in the rulings in the Sluder case referred to in the opinion.

OPINION

In Banc.

BRACE C. J.

This is an appeal by the defendant from judgment in favor of the plaintiff for the sum of six thousand dollars in an action for personal injuries.

The cause of action stated in the petition is as follows:

"That on the 1st day of February, 1901, the plaintiff was lawfully driving a team of horses attached to a loaded wagon northward on Broadway at its intersection with Buchanan street, when the wheels of the wagon he was so driving went into a hole in said streets at their intersection, and said team were unable to pull the wagon further and became stalled, and in endeavoring to get said wagon pulled out of said hole, said team were upon the track of the defendant St. Louis Transit Company, and whilst said team were so on the track of said St. Louis Transit Company on said streets at said place, and whilst said wagon and the wheels thereof were at and near said defendant's track, the defendant St. Louis Transit Company's motorman and...