Schmidt v. St. Louis R. Co.

• Decision Date: 12 June 1901
• Citation: 63 S.W. 834,163 Mo. 645
• Parties: SCHMIDT et ux. v. ST. LOUIS R. CO.
• Court: Missouri Supreme Court

63 S.W. 834

163 Mo. 645

SCHMIDT et ux. v. ST. LOUIS R. CO.

Supreme Court of Missouri, Division No. 1

June 12, 1901.

APPEAL — HARMLESS ERROR — INSTRUCTIONS — ASSUMPTION OF FACT — STREET RAILROADS — DUTY OF GRIPMAN.

1. On trial of an action against a street-railway company for killing a child on the track, a certain ordinance of the city, requiring gripmen on the first appearance of danger to persons on the track to stop the car in the shortest time possible, was introduced over objections of defendant. Thereafter, on request of plaintiff's attorney, the court instructed that such ordinance had no application to the case, and was withdrawn from the consideration of the jury at the request of plaintiff, inasmuch as there was no claim that defendants gripman did not stop the car, after discovering the danger, in the shortest time possible. Held, any error in admitting the ordinance is harmless.

2. Where, in an action against a street-railway company for killing a child on the track, the father testified that the child was 9 years old, and such testimony was not contradicted, and witnesses all refer to her as a young child and a little girl, there was no error in assuming, in the instructions given, that the child was 9 years old.

3. Where, under the evidence as given by defendant's witnesses in an action to recover for the death of a child killed on a street-car track, it was the plain duty of the gripman to have sounded his gong, an instruction charging the gripman with that duty was not erroneous, in that it failed to set out all the evidence introduced by both parties establishing the necessity of such an act on his part.

4. An instruction that it is the duty of a gripman to be watchful, where he has reason to anticipate the sudden appearance of children on the track, and to find for plaintiff if the gripman was not so managing the car as to be able to stop it quickly when a child appeared on the track, is not inconsistent with a statement that plaintiff did not base any charge of negligence on the failure of the gripman to stop it in the shortest time and space possible.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by Adams Schmidt and Mary Schmidt against the St. Louis Railroad Company. Judgment for plaintiffs. From an order granting a new trial, they appeal. Reversed.

This is the second appeal in this case. At the trial out of which this appeal arises the pleadings and evidence were substantially the same as in that from which the former appeal came, and therefore for a statement of the case we refer to the opinion on the former appeal (Schmidt v. Railroad Co., 149 Mo. 269, 50 S. W. 921), which, for the sake of brevity, we will adopt without repeating it here, noting only points in the proceeding peculiar to our present inquiry. During the trial we are now reviewing, the plaintiff read in evidence an ordinance of the city approved April 4, 1889, authorizing the defendant to change its motive power to cable or electricity, and containing a clause as follows: "The city of St. Louis reserves the right to regulate the running of cars and the rate of speed at which cars shall be run on said railroad." And in that connection was also read the defendant's acceptance of the provisions of that ordinance, dated March 4, 1890. Then the plaintiff offered to read the following from the Revised Ordinances of 1892:

"Sec. 274. Every person, corporation, company or copartnership engaged in the business of transporting passengers from any point to any other point within this city, for hire, or street railways, shall be subject to all the conditions, stipulations and requirements of this article."

"Sec. 1275. The following rules and regulations concerning the running of street railway cars shall be binding upon every person, corporation, company or copartnership taking out license under the provisions of this article. * * * Fourth. The conductor, motorman, gripman, driver, or any other person in charge of each car shall keep a vigilant watch for any vehicles and persons on foot especially children, either on the track or moving towards it and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible."

The defendant "objected to the introduction of this ordinance on the ground that it was not shown that the defendant company was at the time of the accident amenable to subdivisions 1 to 4 of section 1275, nor that it has any application to defendant." The objection was overruled, exception taken, and the ordinance read. After the defendant had introduced its evidence, and the testimony on both sides was closed, the counsel for plaintiff arose and stated to the court, in the presence of the jury, "that plaintiffs make no claim that the car which ran over the child was not stopped within the shortest time and space possible after any of defendant's employés became aware of the presence of danger, and that plaintiffs did not base any charge of negligence upon the failure of the gripman in charge of the car to stop the car in the shortest time and space possible after he first became aware of any danger to the child, Maggie Schmidt." The case was submitted to the jury upon instructions, the correctness of some of which are challenged, and those will be set out hereinafter, when we come to consider the objections urged against them. There was a verdict for the plaintiffs for $5,000, which, upon defendant's motion for a new trial, was set aside, and a new trial awarded, from which action the plaintiffs have taken this appeal. The grounds upon which the court sustained the motion for a new trial were the admission in evidence of the fourth clause of section 1275 of the Revised Ordinances, and the giving of instructions 1, 3, and 4 asked by the plaintiffs. Those are the only features of the trial concerning which any complaint is made by the defendant, and the only points to which our attention is drawn in the briefs.

Sale & Sale, for appellants. Boyle, Priest & Lehmann and Geo. W. Easley, for respondent.

VALLIANT, J. (after stating the facts).

1. When the ordinance in question was offered, the objection to its introduction was placed upon the very vague and indefinite ground that the defendant was not amenable to it, and that it did not apply to defendant. If the counsel making the objection had said, as is now said, that the defendant was not bound by the ordinance, because there was no evidence to show that it had agreed to be so bound, the attention of the court and opposing counsel would have been brought to the point; but to say that the defendant was not amenable, or that the ordinance was not applicable, is scarcely more definite than to say the testimony was incompetent and immaterial. The objection should be specific enough to inform the court and opposing counsel of the real ground on which it is based. Margrave v. Ausmuss, 51 Mo. 566; Primm v. Raboteau, 56 Mo. 407; Shelton v. Durham, 76 Mo. 434; Peck v. Chouteau, 91 Mo. 138, 3 S. W. 577; Drey v. Doyle, 99 Mo. 459, 12 S. W. 287. There was testimony, however, to show that the defendant had agreed to be bound by that ordinance. When the privilege to change from horse power to the more dangerous motor was conferred by the city, it was stipulated that the city reserved the right "to regulate the running of cars and the rate of speed," etc., and this the defendant corporation agreed to. It is now argued that that refers only to the speed of the trains, but we think it is very much more comprehensive. To regulate the running of the cars includes the power to prescribe the care that is to be taken to run them through the populous streets with as little danger as may be, consistent with a reasonable exercise of the franchise granted, and the ordinance now complained of goes no further. Murphy v. Railway Co., 153 Mo. 252, 54 S. W. 442, is quoted as authority for the proposition that acceptance of the special ordinance was not acceptance of the general ordinance. But the rule there laid down does not apply to the facts here. It was there held that the giving of bond to indemnify the city against loss by reason of the railroad company's failure to comply with the terms of general ordinances implied that the company would be bound by the terms of all ordinances which a failure to observe would result in damages to the city, but, since a failure to observe the ordinance in question in that case would not so result, it was not covered by the implied agreement. But in the case at bar we have a franchise granted by the city upon an express condition, and accepted by the company upon the terms granted. But, even without that ordinance, under the undisputed facts of this case, — facts shown as well by the testimony of the defendant as by that of the plaintiffs, — the law imposed on the defendant's servant the duty of keeping a vigilant watch, and holding its cars in control to stop in the shortest time and space possible to avoid such a catastrophe as resulted. The gripman saw this flock of school children just dismissed from school, some on the sidewalk and some chasing across the street in front of his train. He said that two wagons were on the track in his front, and a buggy to the east, so as to shut out his view of the sidewalk. Was it not, then, the dictates, of the most ordinary prudence that he should have had his car under control, used whatever appliances he had at hand to sound the alarm of his approach, and kept a vigilant watch? Under the undisputed facts of this case, the court would have been justified in instructing the jury that such was the gripman's duty even if there had been no...