Speer v. Southwest Missouri Railroad Company

• Decision Date: 02 March 1915
• Parties: JOHN H. SPEER v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

174 S.W. 381

264 Mo. 265

JOHN H. SPEER v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.

Transferred to Springfield Court of Appeals.

McReynolds & Halliburton for appellant.

A. C Young for respondent; Thomas & Hackney of counsel.

OPINION

GRAVES, P. J.

This is a suit for personal injuries. The plaintiff, in company with the owner of an automobile, was injured by reason of a collision between the automobile and one of defendant's electric street-railway cars. The plaintiff charged in his petition that the electric street-railway car was being run in excess of six miles an hour, in violation of a city ordinance of Webb City, Missouri, and that the defendant negligently failed to give any warning of the approach of said car as said car was approaching a public street crossing. The answer was (1) a general denial, and (2) contributory negligence pleaded in minute detail. Reply a general denial. Plaintiff had judgment for $ 1000 and defendant has appealed. The cause was evidently brought here on the theory that there was a constitutional question involved. We are of the opinion that there is no such question properly raised or involved in this record, and for that reason, this cause should be transferred to the Springfield Court of Appeals. The constitutional questions are thus stated in the motion for new trial:

"Because the action of the court in refusing to admit in evidence defendant's franchise and in refusing said Instruction 'J' is violative of section 10, article 1, of the Constitution of the United States, in that the action of the court impaired the obligation of contracts between Webb City and the defendant company.

"Because the act of the court in excluding the franchise between the city of Webb City and the defendant company, and in refusing said instruction is violative of section 15, article 2, of the Constitution of Missouri, and is violative of section 30, article 2, of the Constitution of the State, in that it impaired the contract obligation between Webb City and the defendant company, in that it deprived the defendant company of a property right without due process of law."

The instruction "J" referred to reads:

"The court instructs the jury that the ordinance of Webb City limiting speed of cars on and across the streets does not apply to defendant, being in violation of its franchise from city of Webb City."

Section 12 of Ordinance No. 137, being the franchise ordinance, referred to, and offered in evidence, but not admitted, reads:

"No car, in any case, shall run at a greater speed than ten miles per hour within the built-up portion of the city; and when cars are...