108 Mo. 439 | Mo. | 1891
This is an appeal prosecuted by the defendant from a judgment in favor of plaintiff in a personal damage suit. The plaintiff was injured by a passenger train, while in the employ of the defendant as a night switchman, so that it became necessary to amputate his leg between the knee and ankle. He founds his action on the violation of an ordinance of the city of St. Louis, which limits the rate of speed of trains to six miles per hour.
The plaintiff had been engaged in railroad work for thirteen years, eleven years of that time in the capacity of a conductor on another road entering the city of St. Louis. He had been in the employ of the defe idant as night switchman at the defendant’s Seventeenth street yards in St. Louis for five nights preceding the night •on which he received the injuries of which he complains. The accident occurred at night, between ten and eleven o’clock at a point near the Eighteenth street bridge. The Seventeenth street yards are just east of the Eighteenth street bridge. There is what is called a lead track extending from the Seventeenth street yards westward on a curve to the north under the bridge, and, thence, westward on a curve to the south, but the degree of these curves is not stated. There are three tracks passing under the bridge, the first or south one is this lead track, the next one north of it is called the east-bound main track, and to the north of that is the west-bound main track. Both of these main tracks curve to the south after passing under the bridge going from the east to the west; but here again the degree of the curve is not stated. There is a spur track which leaves the middle or east-bound track at a point just west of the bridge and extends westward between
The plaintiff and his crew were engaged in moving ■' a train of fifteen or more cars from the Seventeenth street yards. After the engine and some six or eight cars passed under the bridge going west the plaintiff got off' on the ground and stepped north some six or eight feet to and across the middle or east-bound track to a point some fifteen feet «east of the bridge. He then looked west between the cars standing on the spur track and his train, then moving westward, and gave the engineer signals to stop and to back up. He then stepped back towards his train, and as he was clearing the east-bound track his foot was caught by the pilot of the engine of' an east-bound passenger train, called the Kirkwood Accommodation. It was necessary for the plaintiff to get off his train and step over the track as he did in order to get in line with his engineer so as to give the signals. He says he could not see the incoming passenger train until it passed around the cars standing on the spur, though some of his evidence tends to show that he could have seen the headlight of the engine drawing that train for a distance of one hundred and eighty feet from where he stood. He says he did not see the-incoming train ; that he just stepped across the track, gave his engineer' a signal with his lantern to stop, then two signals to back up ; that he then started back and was caught; and that it was all the work of a minute or thirty seconds. He says he knew this Kirkwood train came in every night, but that he had no time-card and did not know when it was due, and was not the foreman of his crew.
The evidence of the plaintiff and that of another witness is to the effect that this Kirkwood train was moving-at a rate of speed from twenty to twenty-two miles per hour. The conductor of that train gave it as his opinion that his train was running at a speed not exceeding ten.
The case was submitted to the jury on this evidence-produced by the plaintiff; and the first complaint is that the court erred in overruling the defendant’s demurrer to the evidence. In this connection the defendant seeks to have the above ordinance ruled out of the case for these alleged reasons: First, because the right of the city of St. Louis to regulate the speed of railroad trains is implied from the express power conferred upon it to regulate the use of the streets ; hence, the ordinance should be construed as applying to streets and crossings only; second, because the ordinance was not designed, for the protection of the defendant’s employes, and the plaintiff can derive no-benefit or protection therefrom.
1. As to the first of these propositions it may be-observed that our attention has not been called to any provision of the charter of the city of St. Louis, which gives the city power, in terms, to regulate the speed of railroad trains; but the charter, among other things, gives the mayor and assembly power to regulate the úseof streets ; to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health; to declare, prevent and abate nuisances-
It is well to bear in mind that laws and ordinances regulating the speed of railroad trains are police regulations purely. Grube v. Railroad, 98 Mo. 331; Knobloch v. Railroad, 31 Minn. 402; Railroad v. Deacon, 63 Ill. 91; Thorpe v. Railroad, 27 Vt. 140. As said in the case last cited: “ This police power of the state extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the state.” ' Indeed, regulating the speed of railroad trains is one of the many instances of an exercise of the police power given by Chief Justice Redeield in that case. The delegation of such a power to a municipal corporation need not be given in express terms. Says Judge Dillon : “ Resulting from the power over streets, and to protect the safety of citizens and their property, municipal corporations, in the absence of legislative restriction, may control the mode of propelling cars within their limits, may prohibit the use of steam power, and regulate the rate of speed.” 2 Dillon on Mun. Corp. [4 Ed.] sec. 713.
Speaking of the power of a city to prohibit the propelling of cars by steam through a city Redfield says : “We should entertain no doubt of the right of the municipal authorities of a city or large town to adopt such an ordinance without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdictions.” 2 Red. on Railways [5 Ed.] 577-8. In Railroad v. Haggerty, 67 Ill. 113, objection was made to an ordinance limiting the rate of speed of trains within a town to not more than six miles per hour, oii the ground that the town had no authority to pass it. The town had no express authority to regulate the speed of railroad trains, but'
It is, therefore, clear that the argument that the ordinance in question should be construed as applying only to streets and crossings because the power to enact it is implied from the power to regulate the use of streets cannot stand the test of right, reason or authority. It has no foundation upon which to stand; for the power to enact the ordinance does not depend alone, or to any considerable extent, upon the power to regulate the use of the streets. Trains of cars propelled by steam through a city, so as to be dangerous to persons and private property, ■ may well be declared a nuisance. 2 Dill, on Mun. Corp., sec. 713. Add to the nuisance clause the general welfare clause and there is then no doubt but the city of St. Louis had abundant authority to enact this ordinance.
The section of the ordinance now in question and another section thereof were before this court in Merz v. Railroad, 88 Mo. 672. That case was well presented, and, after due consideration it was held that the ordinance was a valid enactment, and that it applied to tracks located on uninclosed private property of the defendant. In Grube v. Railroad, supra, a like ordinance was held to apply to uninclosed switch yards in the exclusive use of the defendant. It is often said that ordinances requiring a bell to be rung or a flagman stationed at a
We do not regard the case of State v. Jersey City, 29 N. J. L. 170, as in conflict with what, has been said. That case is made to turn upon the limitations contained in certain statute laws giving the city the power to regulate the speed of railroad cars and engines, and to declare what shall be considered nuisances. No such limitations are found in the charter of the city of St. Louis.
2. The next objection to the ordinance is that it was not designed for the protection of the employes of the defendant, and, hence, they cannot have an action 'based upon its breach. The claim is that the contract •of employment determines the right, obligations and
A contract between master and servant to disregard and disobey this ordinance would be unlawful and void. It is doubtless true that a servant engaged in disobeying the ordinance could not recover for injuries thus received, for he could not complain of his own wrong. But the plaintiff had nothing whatever to do with the running of this train at the unlawful rate of speed. The ordinance was enacted to protect the lives and property of the citizens, and is the law within the city limits. It furnishes a rule of conduct for master and servant as well as for other persons. It certainly cannot be said that plaintiff, by entering the service of the defendant, ceased to be under the protection of the laws of the city. The plaintiff was not a party to, or a participant in, the violation of the ordinance ; and, as the ordinance was enacted to protect the citizens and their property, .he has a cause of action for the damages received, unless defeated by his own contributory negligence. It is agreed in this court that another section of the ordinance provides for the arrest and conviction of persons
Nor is the plaintiff’s action defeated because he and the persons in charge of the train were fellow-servants ; for the train was run at a rate of speed prohibited by the ordinance, pursuant to a time-card prepared and promulgated by the defendant. The-unlawful and negligent act was the joint act of the defendant, and of the servants in charge of the train. The law is well settled that one servant may recover for an injury caused by the combined negligence of the master and a fellow-servant. Young v. Iron Co., 103 Mo. 324, and cases cited.
3. The next question is whether the court should, as a matter of law, have declared the plaintiff guilty of contributory negligence. -It is to be observed at the-outset that the plaintiff was not a trespasser or wrongdoer. At the time of this accident he was where he had a right to be, and where the performance of his duties required him to be, so that the cases of Yancey v. Railroad, 93 Mo. 433, and Barker v. Railroad, 98 Mo. 50, have no application to this case. Though his work placed him upon these tracks, still it was his duty to be-on his guard for approaching trains ; and the question is not, whether there is evidence from which the jury might have inferred contributory negligence, but whether the court should have so declared as a, matter-of law.
It is to be observed in the first place that under-our rulings the burden of showing negligence on the part of the plaintiff is upon the defendant. The presumption is that plaintiff performed his duty until the contrary is made to appear. Stepp v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 306; Schlereth v. Railroad, 96 Mo.
Taking these circumstances in connection with the evidence that the train was running at a speed of from twenty to twenty-two miles per hour, we think the question of contributory negligence was one for the jury. Where, as here, there is a flagrant violation of a law or municipal regulation, resulting in an injury, contributory negligence should be clearly made out, before the court relieves the defendant from liability on that ground. Petty v. Railroad, supra. The evidence in our opinion does not make out a clear case of contributory negligence. The demurrer to the evidence was, therefore, properly overruled.
4. The third instruction given at the request of the defendant is, omitting some unimportant words, as follows: “ If the jury find that plaintiff, while engaged in switching cars upon a freight train in the defendant’ s yard, stepped immediately in front of a. passenger train of defendant, running east upon the east-bound track therein, and was struck thereby, he cannot recover, even though the passenger train was running at a rate of speed exceeding six miles per hour. “ This instruction, it will be seen, does not require the jury to find that plaintiff saw the approaching train, or could
It is unnecessary to go over all the instructions. Should it appear on a new trial that plaintiff saw the approaching train, and, seeing it, stepped in front of the engine, he cannot recover, for that would be gross negligence on his part; bat if he did not see the approaching train then it is for the jury to say whether he was wanting in ordinary care in not seeing it.
The judgment is reversed and the cause remanded.
Sherwood, C. J.', is of the opinion that the judgment should be reversed, but does not agree- to remanding the cause.