Seibert v. Missouri Pac. Ry. Co.

• Decision Date: 24 May 1905
• Citation: 87 S.W. 995,188 Mo. 657
• Parties: SEIBERT v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

87 S.W. 995

188 Mo. 657

SEIBERT v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

CITIES — POLICE POWER — STREETS — SAFETY GATES AT RAILROAD CROSSINGS — PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE.

1. Under paragraphs 2, 11, 14, § 26, art. 3, of the city charter of St. Louis, conferring power on the mayor and assembly to establish, alter, and improve streets, and regulate the use thereof, to grant the right to construct railways thereon, and regulate and control the same, and pass all ordinances, not inconsistent with the charter or laws of the state, which may be expedient in maintaining the health and welfare of the city, as well as under its general and inherent police power, the city of St. Louis has authority to require the erection of safety gates at points where railroads cross streets.

2. The decision of municipal authorities as to the location in the street of machinery operating safety gates at a railroad crossing will be interfered with by the courts only where the machinery is so located as to necessarily interfere with the use of a street as a public highway; and, where the machinery was so located as to leave 39 feet of unobstructed space in the highway, it did not interfere with the use thereof.

3. Where a city had authority under its charter to require the erection of safety gates at railroad crossings, and did so require, the act of a railroad company in erecting such gates was not negligence.

4. In an action against a city and a railroad company for the death of a fire engine driver, alleged to have been caused by the negligent maintenance of an obstruction in a street, evidence held to show that deceased was guilty of contributory negligence.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Ida Seibert against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy and Henry G. Herbel, for appellant. Wm. H. Clopton and J. H. Trembley, for respondent.

MARSHALL, J.

This is an action to recover $5,000 damages for the death of the plaintiff's husband on May 11, 1900, caused by a fire engine, of which he was the driver, colliding with a guard or fender connected with a crossing gate at the northwest corner of Broadway and Poplar streets, in the city of St. Louis. The plaintiff recovered for $5,000, and after proper steps the defendant appealed. The suit was originally instituted against the city of St. Louis and the defendant railway company. The jury returned a verdict in favor of the city of St. Louis, but against the defendant railway company.

The Issues.

The petition alleges that the city of St. Louis is a municipal corporation, and the defendant railway company a corporation, organized under the laws of Missouri; that Broadway is a public street or highway in the city of St. Louis; that plaintiff was the wife of George Seibert, deceased. The petition then alleges: "Plaintiff further states that long prior to said 11th day of May, 1900, the said defendant Missouri Pacific Railway Company, by and with the permission of the said defendant city of St. Louis, erected, and has ever since said time maintained, a large, massive, cast-iron structure on and in that part of said Broadway intended for driving purposes, and about four feet east of the west curb of said Broadway, just north of said Poplar street, in the city of St. Louis, Missouri; that said defendant Missouri Pacific Railway Company, by and with the permission of the said defendant city of St. Louis, long prior to said May 11, 1900, placed two large, massive, wrought-iron rails or bars, one on either side of said cast-iron structure hereinbefore described, in such position that one end of each of said iron bars was embedded in the said public street known as Broadway at least one foot east of the said iron structure, and at least five feet east of the said west curb of said Broadway, and the other end slanting westwardly to the said iron structure at a point distant two or three feet above the paved surface of said street. Plaintiff further states that by reason of said position in said street the said cast-iron structure and wrought-iron rails or rods were, from the time they were so placed in said street, a dangerous obstruction to the use of said street as a public driveway, and that the defendant city of St. Louis knew that the said iron structure and wrought-iron rails were dangerous to persons driving on said street; that said George Seibert, on said 11th day of May, 1900, was employed by said city of St. Louis as a driver on fire engine No. 15 of the fire department of said city; that he was then stationed at the fire station house on Broadway and Valentine streets; that about three o'clock a. m. on the said 11th day of May, 1900, an alarm of fire was given at said station house at Eleventh and Chouteau avenue, in said city; that said George Seibert, in the discharge of his duty as driver of said engine, drove the same south on said Broadway at the speed required by said fire department under said circumstances; that there was then no danger or other light on or near said obstruction; that while driving said engine one of the wheels of said engine collided with said obstruction erected and maintained as aforesaid by said Missouri Pacific Railway Company, by and with the permission of the defendant city of St. Louis; that by reason of said collision said George Seibert was thrown from his seat on said engine into the street and was killed. The plaintiff says that the death of said George Seibert was caused by the negligence of the defendant, said Missouri Pacific Railway Company, in erecting and maintaining said obstruction on said street, and also in so maintaining the same in said street without maintaining a danger light on or near the same at night, and by the negligence of the defendant city of St. Louis in permitting said defendant Missouri Pacific Railway Company to erect and maintain said obstruction in said street, and in permitting said defendant Missouri Pacific Railway Company to maintain said obstruction in said street by night without maintaining on or near the same a danger light or lights as aforesaid."

The answer of the city of St. Louis was a general denial, with a plea of contributory negligence on the part of the deceased. The answer of the defendant railway company admitted that it had with the permission of the city erected and maintained crossing gates at the intersection of its railway (which is laid on Poplar street) with Broadway, which is the iron structure referred to in the plaintiff's petition; that said crossing gate was located and erected by the direction and under the supervision of the duly authorized officials and agents of the city, and in pursuance of the requirements of the ordinance of said city duly enacted; that said crossing gate is a standard railway crossing gate, which was duly approved by the board of public improvements and street commissioner of the city, before the same was erected in said Broadway; and that said structure, if an obstruction to said street, is a lawful one, for which the defendant is not responsible.

The answer, then, is a general denial of every allegation in the petition not expressly admitted, coupled with a plea of contributory negligence on the part of the deceased. The replies to the answers were general denials.

The case made is this: The defendant railway company has a track on Poplar street, which runs east and west and crosses Broadway. Broadway runs north and south. On the 7th of April, 1893, the municipal assembly of St. Louis enacted an ordinance containing the two following sections:

"Sec. 1234. Every person, association or corporation running or operating engines or cars propelled by steam upon its railroad track or tracks, along or across any street, avenue or road in the city of St. Louis, now, or which may hereafter be used for wagon travel, shall erect, at all cross or intersecting streets, avenues or roads so used, or which may hereafter be used, a gate or gates, made of wood or iron or other suitable material, and unless said gates are opened and closed automatically, such persons, associations or corporations shall keep a watchman to operate such gate or gates who shall close the same immediately before the passage of any engine car or train of cars, and open the same immediately after such passage. Such gate or gates shall be so erected on such improved streets, avenues or roads, within thirty days after such person, association or corporation shall be notified so to do by the street commissioner of the City of St. Louis: Provided, however, that this ordinance shall not apply to any cross or intersecting avenues, streets or roads that are now, or that may hereafter, be bridged over and across the railroad tracks; and provided, further, that this ordinance shall not apply to any cross or intersecting streets, avenues or roads on which are laid tracks used exclusively for switching purposes or for switch tracks.

"Sec. 1235. Any person, association or corporation failing to observe and comply with the provisions of section twelve hundred thirty four shall be deemed guilty of a misdemeanor and upon conviction thereof, in the police court of the city, shall be fined not less than $100.00 nor more than $500.00 for each and every offense, and every day's violation thereof shall constitute a separate offense."

Pursuant to the requirements of said ordinance, and under written direction and authority of the city, the defendant railway company, on the 8th of December, 1899, erected crossing gates at the intersection of Broadway and Poplar streets in the city of St. Louis. Such gates consisted of a mechanical appliance inclosed in an iron box at each of the four corners of the said intersecting streets. Such mechanical appliances were connected with and operated four wooden arms. The whole appliance was operated by a man,...