Thompson v. St. Louis-S.F. Ry. Co.

• Citation: 69 S.W.2d 936
• Decision Date: 14 March 1934
• Docket Number: No. 31274.,31274.
• Court: Missouri Supreme Court
• Parties: GEORGIA THOMPSON, Administratrix of ELLA ROSE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.

69 S.W.2d 936

GEORGIA THOMPSON, Administratrix of ELLA ROSE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY.

No. 31274.

Supreme Court of Missouri, Division No. 1.

March 14, 1934.

Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.

REVERSED AND REMANDED.

F.W. Barrett for appellant.

(1) It is not necessary in a bill of exceptions to set out the evidence. If the rejection of evidence be complained of, it is sufficient to show the evidence offered. The Barge Resort v. William Brooke, 10 Mo. 531. In a bill of exceptions it is sufficient to state that evidence was given tending to show certain facts. Walls v. Gates, 4 Mo. App. 1; Stark v. Hill, 31 Mo. App. 109. (2) Municipal corporations are prima facie the sole judges of the necessity of their ordinances. City of Monett v. Campbell, 204 S.W. 32; St. Louis v. Theatre Co., 202 Mo. 619. (a) The right of a city to regulate grows out of a grant to use its streets. Faith v. Tower Grove, etc., Ry. Co., 105 Mo. 537. (b) A municipality also has the right under the power of police regulations to regulate the speed of trains within its corporate limits. Jackson v. Ry. Co., 157 Mo. 621; Grube v. Railroad, 98 Mo. 330. (c) The delegation to a municipality of the power to regulate trains need not be given in express terms, but may be implied from the power of the city to abate nuisances and provide for the general welfare. Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 439. (d) A municipal ordinance is presumed to be reasonable and all doubts are resolved in favor of its validity. Before it will be declared to be discriminating or unreasonable, it must show on its face or by evidence aliunde that it is unreasonable. State ex rel. v. Clifford, 228 Mo. 205; Berneger Moving Co. v. O'Brien, 240 S.W. 481; McGill v. St. Joseph, 38 S.W. (2d) 725. (3) An ordinance limiting the speed of trains to ten miles an hour within a city of forty or fifty thousand inhabitants, such as Springfield, Missouri, and at a crossing which is a main thoroughfare in that city, is not unreasonable or arbitrary. Gratiot v. Mo. Pac. Ry. Co., 116 Mo. 455; Hunt v. Railroad, 262 Mo. 275; Johnson v. Railroad, 259 Mo. 544; Jackson v. Ry. Co., 157 Mo. 621; Murrell v. Ry. Co., 213 S.W. 964; Irwin v. Ry. Co., 30 S.W. (2d) 56. (4) The violation of the speed ordinance of a city is negligence per se. Prewitt v. Ry. Co., 134 Mo. 627; Stotler v. Railroad, 200 Mo. 107; Todd v. Ry. Co., 37 S.W. (2d) 557. (5) An ordinance limiting the speed of trains to six miles an hour is not unreasonable, unconstitutional or an attempt to interfere with and regulate interstate commerce, contrary to the Constitution. Murrell v. Railroad Co., 213 S.W. 966. The ordinance in question applied to all railroads operating through the city, and since the same is applicable to all transportation of that class, it is not discriminatory. 2 Dillon on Municipal Corporations (5 Ed.), sec. 593. An ordinance prohibiting a particular railroad corporation, by name, from running locomotives by steam on a specified street is valid. Railroad Co. v. Richmond, 96 U.S. 521. While a city has unrestricted power to abate a nuisance, the court will not declare void an ordinance merely because the city may discriminate against one citizen and favor another. St. Louis v. Fischer, 167 Mo. 654.

E.T. Miller and Phil M. Donnelly for respondent.

(1) Regardless of the ruling of the trial court on the admissibility of the ordinance in question in evidence, the plaintiff was not entitled to recover and the verdict of the jury was under all the evidence for the right party. The court shall in every stage of the action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Section 821, R.S. 1929. The Supreme Court, or Courts of Appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action. Sec. 1062, R.S. 1929. Appellate court should not reverse judgment, unless error materially affected merits of case. Hampe v. Versen, 32 S.W. (2d) 793; Dement v. McNail, 4 S.W. (2d) 831; Eckle v. Ryland, 165 S.W. 1035, 256 Mo. 424; State v. Mulconry, 270 S.W. 375; Cox v. McKinney, 258 S.W. 445; McKenzie v. Randolph, 257 S.W. 126; Freeland v. Williamson, 119 S.W. 560, 220 Mo. 217; Stumpe v. Kopp, 99 S.W. 1073, 201 Mo. 412; Mann v. Doerr, 121 S.W. 86, 222 Mo. 15; Berry v. Ry., 114 S.W. 27, 214 Mo. 593; Cross v. Gould, 110 S.W. 672, 131 Mo. App. 585; White v. Stave Co., 213 S.W. 518. A judgment will not be reversed where the right result was reached, though the record shows that the proceedings were irregular and perhaps erroneous. Woody v. Ry., 104 Mo. App. 678; Peterson v. Transit Co., 199 Mo. 331. Introduction or exclusion of evidence, although erroneous, does not justify reversal if it could not have prejudiced appellant's rights. Schmidt v. Pitluck, 26 S.W. (2d) 859; Meyers v. Drake, 24 S.W. (2d) 116. Where an erroneous ruling on evidence does not materially affect the merits of the action, the judgment will not be reversed. Hogan v. Ry., 150 Mo. 36; O'Neill v. Kansas City, 178 Mo. 91; Sanders v. Assn., 178 Mo. 674; Swope v. Ward, 185 Mo. 316; Bank v. Wells, 98 Mo. App. 573. (2) It is the duty of a traveler crossing railroad tracks to look and listen for coming trains, and failure to do so is negligence per se contributing to any injury received by him, and in such case no amount of negligence on the part of defendant will warrant a recovery. Jackson v. Railroad, 171 Mo. App. 430. The statute does not absolve persons approaching a public railway crossing from exercising common prudence to avoid danger nor shift the responsibility to another, should injury ensue from a failure to exercise it. Kenney v. Railroad, 105 Mo. 284; Holland v. Railroad, 210 Mo. 338; Stotler v. Railroad, 204 Mo. 619; Stillman v. Railroad, 266 S.W. 1005; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Evans v. Railroad, 233 S.W. 397; Monroe v. Railroad Co., 249 S.W. 644. In order not to be guilty of contributory negligence, one must, before entering down a street railway track, look and listen in both directions for cars, provided by looking and listening he could discover their approach. Zlotnikoff v. Wells, 295 S.W. 129; McClay v. Mo. Pac. Ry., 299 S.W. 628. Plaintiff was contributorily negligent as a matter of law and this defeats his recovery regardless of whether defendant was negligent or not. Freie v. Ry. Co., 241 S.W. 671; Spaunhorst v. United Rys. Co., 238 S.W. 821; State ex rel. Hines v. Bland, 237 S.W. 1018; Railroad Co. v. Biwer, 266 Fed. 965; Nichols v. Railroad Co., 250 S.W. 628.

STURGIS, C.

Plaintiff sues for the statutory penalty as administratrix of Ella Rose, deceased, who was killed on February 2, 1930, in the city of Springfield, Missouri, by reason of the automobile in which she was riding as a guest being run into by defendant's passenger train going east. Albert M. Powell was driving the automobile in which the deceased was riding and was going south on Nettleton Avenue, the principal north and south street in the west part of the city, and the automobile and train collided at the crossing. Both occupants of the automobile were instantly killed.

Plaintiff alleges several grounds of negligence on defendant's part causing the accident, including running the train at a high and dangerous rate of speed in approaching this street crossing without giving sufficient warning, ringing the bell or sounding the whistle; also in failing to stop the train or slacken the speed when the operators of the train saw, or by due care could have seen, the automobile in which the deceased was riding approaching and going onto the railroad track in time to have avoided the collision by the means at hand. The plaintiff also alleged that there was in force and effect in Springfield a city ordinance prohibiting any person or corporation from running railroad cars propelled by steam at a greater rate of speed than ten miles per hour within the corporate limits of the city, and that defendant was running the train in question at a much greater rate of speed than ten miles per hour, in violation of such ordinance.

The principal point at issue here is raised by defendant's answer, which, after admitting its incorporation, that Nettleton Avenue is a public street in Springfield which intersects defendant's railroad, and that on February 2, 1930, the deceased, while attempting to cross defendant's track in an automobile on said street, collided with one of defendant's trains, then proceeds to allege:

"That Section 948 of the Revised Ordinances of the City of Springfield, Missouri, referred to in plaintiff's petition, is unreasonable, arbitrary, discriminatory, unlawful and an unreasonable interference with interstate commerce and the carrying of U.S. mail; that defendant is engaged in interstate commerce and in carrying U.S. mail; that defendant's main line track extends through the City of Springfield, Missouri, for a distance of over 4.4 miles; that said section of said Revised Ordinances applies for the full length through the City of Springfield from the western limits to the eastern limits and is not confined to the thickly populated sections of Springfield; that a part of the territory both east and west of the station in Springfield is open and sparsely settled territory, as well as the thickly populated; that defendant's trains are in competition with other lines of railroad from different terminal points in other states; and are also in competition with motor busses and aeroplane transportation of passengers for hire, both intrastate and interstate; and also in competition with motor trucks in the transportation of freight for hire; that in order to satisfy the demands of the...