Backenstoe v. Wabash, St. Louis & Pacific Railway Co.

| Mo. Ct. App. | Dec 8, 1885

I.

Hale, J.

The defendant asks that the judgment of the circuit court be reversed for the reason that it was not shown by the evidence that the horse was killed in Egypt township, the township in which the-suit was brought.

The statement alleged that the horse was killed within defendant’s switch limits, in the town of Nor-borne, -in Egypt township, in Carroll county. The evidence showed that the horse was killed within the switch limits, in the town of Norborne. The evidence was sufficient to authorize the jury to infer that the horse was killed in Egypt township, and in Carroll county. I thus hold, controlled, as I feel myself to be by the authority of the case of Nall v. Railroad (59 Mo. 115); in which case Wagner, J., said: “The second instruction,” asked by defendant and refused by the court below, “require that it should affirmatively appear that the injuries were indicted in Gallatin township. The place where the killing or injury happened was a jurisdictional fact, and to be ascertained by proof like any other fact. The petition [statement before the justice] stated that it took place in Gallatin township. This gave the justice of the peace jurisdiction of the case, and the evidence showed at what point it happened. The question was for the triers of the fact, and we will not interfere.”

II.

In this court the defendant makes certain points which it is not in a position to make. In the court below the defendant made two specific objections to the introduction in evidence of the ordinance read by plaintiff. Those objections are not made or urged in this court, and will be treated as abandoned by the defendant. But objections other than those just referred to, are made here by defendant, for the first time, to the competency of said ordinance as evidence. Those objections cannot now be made by defendant. “ By taking specific grounds of objection which are wrong, the party is always considered as waiving the true ground; and, in effect, therefore, as not objecting at all.” Dunham v. Simmons, 3 Hill, 610. Nor can the defendant for the first time object to the competency of the parol evidence, introduced by plaintiff, that the town of Norborne was organized as a city of the fourth class. No such objection was made in the trial court. None can be made in this court.

III.

“Negligence may be asserted as a matter of law, where there has been a breach of law or a city ordinance.” Norton v. Ittner et al., 56 Mo. 352; Karle v. Railroad, 55 Mo. 476.

Section 18 of the ordinance read, prohibited the running of a railroad train through the corporate limits of Narborne at a greater rate of speed than four miles per hour, by imposing a penalty upon any one so doing. The imposition of a fine by the ordinance, upon any one for so running a railroad' train, did not relieve such one of pecuniary liability for an injury done to another by so doing. But, on the contrary, the imposition of the fine prohibited the act to be punished by the fine ; and the prohibition of the act, by a valid ordinance, rendered snch an act negligent per se, and the one doing the act liable for all injury caused thereby. Cases cited above.

IY.

The defendant" contends that, £‘There was no proof whatever that the animal was struck by reason of the excessive rate of speed.” On the contrary, all the circumstances connected with the striking of the animal by defendant’s train, including the illegal rate of speed at ■which said train was running, were in evidence, and the trial court properly submitted to the jury the question as to whether or not the animal was struck by reason of such illegal rate of speed. Apitz v. Railroad, 17 Mo. App. 419" court="Mo. Ct. App." date_filed="1885-04-13" href="https://app.midpage.ai/document/apitz-v-missouri-pacific-ry-co-6614670?utm_source=webapp" opinion_id="6614670">17 Mo. App. 419.

Judges Philips and Ellison concur, except as to the first point, from which they dissent, as explained in their separate opinion attached hereto.

SEP ABATE OPINION OE THE MAJOBITY OE THE OOHBT BY PHILIPS, P. J.

I am of opinion that the demurrer interposed by defendant to the evidence should have been sustained. The evidence, I think, wholly failed to show that the injury in question occurred in Egypt township.

It has been uniformly held, since the decision in Hansberger v. Pacific Railroad (43 Mo. 196" court="Mo." date_filed="1869-01-15" href="https://app.midpage.ai/document/hansberger-v-pacific-railroad-8002480?utm_source=webapp" opinion_id="8002480">43 Mo. 196), that the action under the double liability section of the statute, when begun in a justice's court, must be instituted before a justice of the township in which the injury occurred. It is a jurisdictional fact, and must appear affirmatively of record.

In the case of Mitchell v. Railroad (82 Mo. 106" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/mitchell-v-missouri-pacific-railway-co-8007899?utm_source=webapp" opinion_id="8007899">82 Mo. 106), it was expressly held that this fact was not only essential to be averred, but, as a necessary sequence, it should also be proved at the trial; and because of the- absence in the record of such proof, the case was reversed and remanded. This ruling was followed subsequently, at the same term, in a case between the same parties.

In the record in the case here under consideration, there is not one word of evidence to show that this injury occurred in Egypt township, unless it can be maintained that the jury might infer the fact from the proof that it occurred in the town of Norborne. How the jury trying this case at Carrollton, the county seat, could draw the conclusion that Norborne is in Egypt township is not comprehensible within the rules of evidence. These township lines are made and unmade at the dis- ' cretion of the county courts. The courts would not take judicial cognizance that Norborne was in Egypt township. How then could a jury • infer it ? There is no necessary connection between the fact proved and the fact inferred.

The court did not submit, even, the question to the jury whether or not Norborne was in Egypt township; ■for the second instruction given for plaintiff directed the jury, that if they found the injury was done in the town of Norborne that ivas sufficient, as to the locus in quo, to warrant the verdict for plaintiff. ■ ,'

I confess it is difficult to. reconcile the opinion of Wagner, J., in Nall v. Railroad, 59 Mo. 112" court="Mo." date_filed="1875-02-15" href="https://app.midpage.ai/document/nall-v-st-louis-kansas-city--northern-railway-co-8004863?utm_source=webapp" opinion_id="8004863">59 Mo. 112, with what is here said. If it was intended to hold that because the ■statement alleged that-the injury occurred in the given-township that was sufficient, without more, to maintain the verdict, it is in direct conflict with repeated decisions, in effect, of the supreme court, and especially with that of Mitchell v. Railroad, supra. He states that the place where the injury occurred was clearly proved, and that the evidence showed at what point it happened, and the question was for the triers of the fact. If so, it is curious that he should have justified the action' of the trial court in refusing an instruction which submitted that identical question to the jury to be found. If he meant to say there was proof of a certain fact or facts from which the jury might reasonably have inferred the essential fact, it is more singular that he should make the inference for the jury in order to maintain their verdict. The fact should have been left to the jury to be found; but by refusing the second instruction the trial court, in effect, held that it was not necessary to find such fact to authorize^ verdict for plaintiff. If this be a correct construction of the learned judge’s opinion, it is in conflict, in my opinion, with the latter decisions of the supreme court, as well as sound principles of law, founded on the established rules of pleading, practice and evidence.

I, therefore, hold that the judgment of the circuit cour o should, on this account, be reversed and the cause remanded. In this opinion Ellison, J., concurs. Hall, J., being of opinion, as stated in his separate opinion, that the conclusion reached by the majority of the court is in conflict with the decision in Nall v. Railroad, supra, and that said decision has not been directly overruled, it is ordered, that this cause, together with the transcript and these opinions, be certified to the supreme court of this state, as provided in section six, of the constitutional amendment, creating the Kansas City court of appeals.