Walsh v. Missouri Pac. Ry. Co.

• Decision Date: 09 March 1891
• Citation: 102 Mo. 582,15 S.W. 757
• Parties: WALSH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

15 S.W. 757

102 Mo. 582

WALSH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March, 1891.

On rehearing. For former report, see 14 S. W. Rep. 873.

BARCLAY, J.

On further consideration of the case on this motion it appears to me that the ruling stated in the fifth paragraph of the opinion of the court may be supported upon another ground than that mentioned therein. The evidence in the cause disclosed that the general direction of Poplar street is at right angles to the Mississippi river and to the levee, which there forms its western bank; that defendant's railroad runs east and west along Poplar street, and thence around a curve to the levee, along which it proceeds southward from Poplar. Some of the adjacent streets intersecting the levee along the railroad south of Poplar street are mentioned by the witnesses as Plum, Cedar, Mulberry, and Chouteau avenue. No mention is made of Ellwood street in the evidence. The courts are authorized to take notice, without proof, that Arsenal street is in a distant southern part of St. Louis, by reason of the language of the charter of that city, in which it is expressly named as one of the ward boundaries there. See "Ninth Ward" and "Eleventh Ward," 2 Rev. St. 1889, pp. 2087, 2088. The charter of that city is expressly declared a proper subject of judicial notice in all courts by the constitution of the state. Const. 1875, art. 9, § 21. The injury occurred on the curve from Poplar street to the levee, in a house situated on the southwest corner of the junction of those streets, while the train was moving towards the west. As the railroad track changed direction at that point from the levee to Poplar street, running at right angles to the levee, thereby leaving the river bank, as none of the neighboring streets is Ellwood street, and as we may notice judicially that Arsenal street is in another and distant part of the city, it seems to me sufficiently shown that the place of the accident is not within the exception of the ordinance. The exact language of the latter is as follows: "It shall not be lawful within the limits of the city of St. Louis for any car, cars, or locomotive propelled by steam power to run at a rate of speed exceeding six miles an hour. Nothing in this section shall be so construed as to apply to any car, cars, or locomotive running over the track or tracks which are maintained along the river bank between Arsenal street and Ellwood street." It was admitted in evidence without...