88 Mo. 678 | Mo. | 1886
Lead Opinion
Plaintiffs brought this suit to recover
At the close of plaintiffs’ evidence, defendant asked the court to instruct the jury that, under the pleadings and evidence, plaintiffs were not entitled to recover. The instruction was refused, and this action of the court is assigned as the first ground of error. It appears, from the evidence, that defendant had three tracks along Front street, in the city of St. Louis, between Harney and Bryant streets, and that on the morning plaintiffs’ son, who was about eighteen years of age, was run over and killed, he, in company with another youth, was walking-on the eastern track in a northwardly direction, when ou the approach of a passenger train moving- southwardly • on the same track, he, with his companion, stepped off the east track on to the middle track, and continued walking northwardly on said track; that when they stepped off the east track on to the middle track, there was a freight train backing up on the middle track consisting of an engine and five or six freight cars, at a distance south of the point where the son of plaintiffs went upon said track, variously estimated by the witnesses to be from one hundred and fifty to six hundred feet. The backing train was moving at three, four, or five miles an hour. The evidence showed that neither of these youths, when they stepped from the eastern to the middle track, listened or looked to see whether any train was on said track approaching from the south, that if they had looked the freight train could have been seen by them. It also shows that after they got on said track they con-
It was also shown by plaintiffs’ evidence that by ah ordinance of said city it is provided that in moving cars in the city limits propelled by steam, the bell of the engine shall be constantly sounded, and that if any freight car or cars, or locomotive propelled by steam be backing within the city limits, a man shall be stationed on the top of .the car at the end farthest from the engine to give danger signals, and no freight train shall at any time be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals, and hear the signal from the engine. The evidence of plaintiffs further tended to show that this ordinance was disregarded in two respects, first, in not ringing the bell while the train was in motion ; and, second, in not having a man stationed on top of the car farthest from the engine to give danger signals. It further tended to show that at the rate of speed the train was moving it could have been stopped in twenty or twenty-five yards, and that if the ordinance had been complied with in having* a brakeman on top of the car, as therein provided, that the dangerous position of plaintiffs’ son could have been • discovered in time to have avoided the accident and injury. The instruction offered by defendant in the nature of a demurrer to the evidence was properly refused, inasmuch as while it tended to show, and did show, negligence on the part of plaintiffs’ son in going upon the track without looking or listening for the train, which he could have seen or heard had he looked or listened, it also tended to show that notwithstanding such negligence the injury to him could have been avoided if the ordinance in evidence had been observed by defendant
It is, however, insisted that said ordinance is unconstitutional, and void, and that for that reason the instruction should have been given. The objection here made was also made to the same ordinance in the case of Merz v. Railroad, ante, p. 672, and after a full consideration it was held to be valid, and it is, therefore, unnecessary to re-discuss it.
All the instructions which were given were asked by the defendant, except one, which the court gave of its-own motion, and it is unnecessary to notice them further than to say that the issues involved were fairly presented to the jury ; and in which they were told that it was negligence on the part of plaintiffs’ son to go on the railroad track without looking or listening for the train, and that if they believed he did so, plaintiffs could not reco-, - r unless they further believed from the evidence that defendant either knew, or might, by the exercise of ordinary diligence, have known of his dangerous position on the track in time to have prevented the accident. The cause was tried on this theory, and the circuit court was fully justified in so trying it by the rule laid down in the cases of Kelly v. Railroad, 75 Mo. 139 ; Werner v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Welsh v. Railroad, 81 Mo. 466.
It is also insisted that the second section of the ordinance treats of a subject not embraced in the title, and is, therefore, violative of section 13, article 3, of the charter of the city, which provides that “no bill shall contain more than one subject which must be clearly expressed in its title.” A similar inhibition is contained in the constitutions of 1865 and 1875, and this court has been repeatedly, called upon to construe it with reference to the validity of acts of the legislature, and it has uniformly been held that an act containing a section relating to matters germane to the general subject expressed in
This principle of construction was applied by this court in the case of State ex rel. v. Mead, 71 Mo. 266, where it is held that a provision in an act entitled ££ concerning elections, ’ ’ authorizing the governor to fill vacancies in elective offices, was germane to the general subject and was valid. The title of the ordinance 10,305 in question is as follows : £ £ An ordinance entitled an ordinance to regulate the speed within the city limits of cars and locomotives propelled by steam power.” The subject expressed in the title is regulating the running of cars and locomotives in the city limits, inasmuch as regulating the' sjoeed at which they may be run is a regulation for ■ running them, and the second section of the ordinance hereinbefore quoted, relates to the subject of running-trains, and does not embrace matter foreign to it, but matter having a relation to and connection with it.
We see no just ground of complaint to the instruc- : tion given by the court of its own motion. While subject only to verbal criticism, it is in harmony with those given by the court at defendant’s request, and if any- • thing is. more favorable to defendant, in this, that it predicates plaintiffs’ right to recover on the fact that the death of plaintiffs’ son must have been caused solely and directly by the negligence of defendant.
We find no error in the record justifying an inter-.
Dissenting Opinion
Dissenting. — My dissent in this case is based upon the ground that the ordinance in relation to the speed of trains, is violative of the thirteenth section of article three of the charter of the city of St. Louis. It purports to be an ordinance regulating the speed of trains ; and yet contains provisions which have no relation to the speed, but only to the equipment of trains. If it had been entitled an ordinance to regulate the running of trains, then provisions with regard to the equipment of trains would have been germane to the subject mentioned in the title. I am unable to perceive the analogy between this case and those of the State ex rel. Meade, 71 Mo. 266, and Ewing v. Hoblitzelle, 85 Mo. 64.
