Senn v. Southern Ry. Co.

• Decision Date: 02 February 1892
• Citation: 18 S.W. 1007,108 Mo. 142
• Parties: Senn et al. v. The Southern Railway Company, Appellant
• Court: Missouri Supreme Court

18 S.W. 1007

108 Mo. 142

Senn et al. v. The Southern Railway Company, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and remanded.

Lubke & Muench for appellant.

(1) The trial court erred in admitting as evidence against defendant the declaration of plaintiff, Christian Senn, as to the cause of the accident, made to the driver after the transaction was complete. The declaration in question was not admissible as being of the res gestae. State v. Snell, 78 Mo. 240; Leahey v. Railroad, 97 Mo. 165. And the witness was not a participant so as to make his declarations evidence. State v. Elkins, 101 Mo. 344. Even if the driver had expressly assented to the declaration, it would still have been incompetent against the company. Adams v Railroad, 74 Mo. 553. (2) The trial court erred in allowing the clothing of the boy to be shown the jury. Defendant's counsel admitted that the boy was injured by the car of defendant. There was no issue in the case as to which this clothing was relevant testimony, and the flourishing of these garments before the jury was calculated only to excite prejudice against defendant company. A controlling reason why irrelevant evidence is to be excluded is, "that such evidence tends to draw away the minds of the jurors from the point in issue and to excite prejudice and mislead them." 1 Greenl. Ev. [12 Ed.] sec. 52. The improper admission of this irrelevant evidence cannot be deemed harmless. It was intended to and did influence the jury against defendant, especially after the trial judge gave the declaration weight by ruling it into the case. State v. Whelehon, 102 Mo. 18. Admission of improper evidence is presumptively prejudicial. Dayharsh v. Railroad, 103 Mo. 570. (3) The trial court erred in overruling defendant's objections to the city ordinance. First. The city of St. Louis had no power to pass this ordinance. Its powers, specified by the scheme and charter as to the operation of street railways, are: (a) Authority to license tax and regulate. Scheme and Charter, 5 sub., sec. 26, art. 3; R. S. 1889, p. 2097. (b) Authority to "regulate and control" their "fares, hours and frequency of trips, and the repair of their tracks, and the kind of their rails and vehicles." 11 sub., p. 2099. (c) Authority "to regulate the time and manner of running cars, and the rates of fare, * * * and the sale of tickets, and exchange thereof between the several companies." Scheme and Charter, sec. 2, art. 10; R. S. 1889, p. 2133. Second. The ordinance is illegal, for that it is oppressive and unreasonable, and is not in harmony with the general law of the state which requires only ordinary care. Municipalities are not invested with the powers of sovereignty; their ordinances must be fair and reasonable, otherwise the courts will hold them void. Corrigan v. Gage, 68 Mo. 541; Railroad v. Springfield, 85 Mo. 674; Hannibal v. Tel. Co., 31 Mo.App. 23. (4) The court erred in overruling defendant's objection to the hypothetical question put to witness Kunkel. Gurley v. Railroad, 35 Mo.App. 95; Igo v. Railroad, 38 Mo.App. 377.

Dodge & Mulvihill for respondents.

(1) The trial court did not commit error in admitting in evidence the declaration of Christ. Senn. This was, according to undisputed testimony, only two minutes after the boy had been run over and while he was being picked up, when Charlie, Tommy Bell and the driver were all together, before they had separated or had made any explanation, and right at the scene of the injury. The statement that it was "careless driving" was a spontaneous explanation of the real cause; a verbal act, and really a part of the res gestae, made, too, by one who could, under no circumstances, bind the company. There was no reply. Leahey v. Railroad, 97 Mo. 165, and cases cited; Greenl. Ev. [13 Ed.] sec. 108. (2) There was no error in showing to the jury the clothing worn by Charlie Senn at the time he was injured. There was no admission by counsel for defendant that the deceased was injured by the car of the appellant. The clothes worn showed what part of the body was injured, the size of the boy who wore them and the relative position when injured. The position of the boy as he laid on the track, as testified to by witnesses for the respondents, is borne out by the condition of the clothes worn. There is no difference between showing the clothes worn and showing the injured part. Railroad v. Wood, 113 Ind. 544; Hays v. Railroad, 70 Tex. 602; Wharton, Crim. Evidence, sec. 312; State v. Stair, 87 Mo. 268; State v. Weiners, 4 Mo.App. 49; State v. Lewis, 80 Mo. 110; Mulhado v. Railroad, 30 N.Y. 370. (3) There was no error in allowing the expert, Frank Kunkel, to answer the hypothetical question, as it contained all the essentials to such a question in the case at bar. Where only professional knowledge and experience are involved upon a given state of facts, the question is competent. Maher v. Railroad, 64 Mo. 267; Morrill v. Tegarden, 19 Neb. 534; Quinn v. Higgins, 63 Wis. 669. (4) First. The section of the ordinance read in evidence was properly admitted under the pleadings and evidence, and under the recent ruling of Chief Justice Sherwood in Fath v. Railroad, 105 Mo. 537, and overruling the same case cited by the appellant in 39 Mo.App. 447; Liddy v. Railroad, 40 Mo. 506. Second. If the ordinance is reasonable, and not inconsistent with the law of the state or charter, it is valid. Judge Thomas' opinion in Railroad v. Railroad, 15 S.W. 1013; 1 Dillon on Mun. Corp., sec. 420; St. Louis v. Knox, 6 Mo.App. 247; Robertson v. Railroad, 84 Mo. 119. Third. The burden of proof is on the appellant to prove the inconsistency or illegality of the ordinance. This was not done. Fourth. The violation of the city ordinance read in evidence was negligence per se. Murray v. Railroad, 101 Mo. 236. Fifth. An objection to the whole section of a city ordinance, of which a part is clearly relevant, is rightly overruled. Wilkins v. Railroad, 101 Mo. 93. (5) There was no error in the instructions as given by the trial court. They fairly presented the law applicable to the case, and on the whole are favorable to the appellant. McCarthy v. Railroad, 92 Mo. 536. (6) First. The jurors are exclusive judges of the weight of testimony, and, after the trial judge has passed on the motion for a new trial, this court will not reverse a judgment upon such ground, unless there has been passion or prejudice, and a flagrant abuse of the right. Rosecrans v. Railroad, 83 Mo. 678; Anderson v. Griffith, 86 Mo. 549. Second. When the evidence is conflicting the verdict will not be disturbed. Third. Upon the whole case the judgment was for the right party, and this court, in reviewing the case upon such a showing, should affirm the judgment. Drain v. Railroad, 86 Mo. 582; Wilkins v. Railroad, 101 Mo. 93.

OPINION

Macfarlane, J.

This action was commenced for damages under section 2121, Revised Statutes, 1879, for the death of the minor son of plaintiffs, Christian Senn and wife, on account of alleged negligence of a driver of a street horse car on defendant's road, in driving and managing the same. Plaintiff obtained judgment for $ 5,000, and defendant appealed. Since the appeal Mary Senn, the wife, has died, and the cause has been revived in the name of Charles Scudder, administrator. Defendant is a corporation owning and operating a street railway in the city of St. Louis.

The negligence charged was a failure of the driver of a car to observe the requirement of an ordinance of the city as follows:

"The conductor and driver of each car shall keep a vigilant watch for all 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."

It was charged, in substance, that Charles Senn, son of plaintiffs, between six and seven years of age, was driving his father's cow across the track of defendant's railway, on north Broadway, in the city of St. Louis, and the driver of one of defendant's horse cars negligently failed to keep a vigilant watch for persons moving towards or upon the track, and negligently failed on first appearance of danger to the son of plaintiffs to stop the car, by reason of which their said son was knocked down and killed. It was also charged, in substance, that the death of plaintiffs' son was caused by the driver of the car negligently and carelessly driving the team attached to said car, and thereby allowing said team to run against and knock their son down, and the car to run over him.

The answer admitted the incorporation of defendant, that plaintiffs were husband and wife, that Charles was their son and that he was a minor, but denied all other allegations. It also charged contributory negligence on the part of deceased.

I. It is insisted that the evidence fails to make out a case of negligence which should have been submitted to the jury. It must be conceded that the facts immediately connected with the accident are not made clear and satisfactory by the evidence. Though there were three eye-witnesses to the injury we only get the information from their testimony that the boy was tripped, or thrown down, by the mule on the east side. It is not shown how deceased approached the track, except in a general way that he was driving a cow from the west to the east side of the street. It does not appear whether he stopped on the track, or tried to run across under the heads of the mules, or how he approached the track. On the question of contributory negligence it is not shown what the mental capacity and discretion of the boy was or what his experience in...