228 Mo. 712 | Mo. | 1910
Defendants appeal from- a judgment in favor of plaintiff city for $15,000, with interest at six per cent per annum from April 1, 1904, aggregating $17,507.50, for building a bridge on Kings Highway over their tracks.
In June, 1881, the Municipal Assembly of the city of St. Louis passed an ordinance, No. 11725, authorizing the defendant railway company to enter the city from the west on the condition, inter alia, that it accept the ordinance. Due acceptance was made, and presently it ran its tracks into the city by virtue of such ordinance and acceptance.
In 1896 defendant railroad company became owner of the property, business, rights of way and franchises of defendant railway company and, as such successor, is now the owner of its rights, privileges, franchises and properties, and is operating the railroad in question, claiming (cum onere) the rights vested1 in its predecessor under ordinance 11725.
There being no contention that both defendants are not liable if one is, to avoid confusion we will refer to both indiscriminately as the Frisco.
By section one permission and authority was-granted to the Frisco to extend, construct, maintain and operate its railroad from the western line of the city eastward by the most practical route across a great many streets, roads and avenues, including a north-and-south thoroughfare known as Kings Highway, to a street then known as Tayon avenue, but now known as 18th street. Said section marks out the route by points,‘courses, distances and designations immaterial here.
Section two grants authority to the Frisco to construct and operate one or more of its tracks on Gratiot street on conditions named.
Section three relates to the interruption of public travel in laying tracks across the many designated streets and that the track laying should be under the supervision of the Board of Public Improvements, etc.
Section four designates speed limits and provides police regulations for the public safety, such as soundr ing bells on moving locomotives, manning trains with experienced brakemen, the maintenance of gates, watchmen at crossings, etc.
Section five provides that the Frisco must file its written acceptance of the provisions of the ordinance and a bond in the sum of $100,000, conditioned on its faithful observance of the provisions of the ordinance, before it shall lay its tracks across any street.
Section six is a provision requiring a plan and profile of its proposed tracks showing elevations and grades, etc., to be filed before it shall construct any of its road within the city limits, and reserves to the city the right to change the grade in certain contingences.
This suit is instituted under section seven, reading;
“Sec. 7. The St. Louis and San Francisco Railway Company shall pay into the city treasury for
Section eight relates to interference with water pipe and sewers in the construction of the railroad, and section nine is a provision requiring trains to be run between certain hours within the city limits and regulates passenger fare on such trains.
It seems the tracks of the Frisco at the locus in-quo run in the Mill creek valley; that at that point the-tracks of the Missouri Pacific parallel those of the Frisco; that the right of way of the latter is one hundred feet wide; that Kings Highway, crossing all said tracks, is also one hundred feet wide, running about parallel with the Mississippi river, and is the most western street connecting the north and south parts of the city; that there is no through street east of it for a great ways; that public travel thereon has much increased1 with the development of St. Louis in that region; that the Louisiana Exposition was about to be held; and that municipal and public attention in 1903 was sharply directed to the matter of public travel' over grade crossings, as an incident to that exposition.
In this condition of things, in December, 1903, the Municipal Assembly of St. Louis passed an ordinance, No. 21346, providing for a bridge in Mill creek valley on Kings Highway over the railroad tracks there, so that travel on Kings Highway would not be obliged to take the grade crossing, but could avoid the dangers of such crossing and the heavy grade down into the valley and' up out of it by using the bridge.
The ordinance in effect, follows:
Section one authorizes and directs the Board of Public Improvements to cause a bridge to be constructed on Kings Highway across the tracks of the Missouri Pacific and Frisco railroads in accordance-
Section two provides that the bridge shall be built of wood, except that portion over the railroad tracks which was to be a combination of wood and steel. The bridge roadway was to be thirty-two feet wide, paved with five-inch blocks resting on three-inch planking. On either side of the roadway was a sidewalk seven feet wide of two-inch planking with a railing on the ■outside.
Section three provides that the city shall pay the costs, and appropriates the sum of $40,000 therefor. Other provisions direct that appropriation shall be made out of the Municipal Revenue Fund for streets, bridges and culverts; that the City Auditor transfer that amount, etc.
Under ordinance 21346 bids were received and the contract to build the bridge was awarded to the R. M. Quigley Construction Company. There is no call to set forth the details of the plans, drawings and specifications. Suffice it to say that the contract calls for roadway and sidewalk planks of cypress, for white and yellow pine lumber, for sound live-timber cedar paving blocks, for sound lumber free from windshakes and large or rotten knotholes, for eyebeams free from cracks and flaws, for cast iron railing and posts free from blowholes and other defects. The subsills were to have a full and even bearing on the ground. The interstices between blocks in the paved roadway of the bridge were to be filled with hot gravel screened, free from sand, well rammed and then asphalt paving cement of the best quality was to be poured hot into all the interstices until they were full and the surface of the blocks covered. The blocks were to be five inches long and from four to eight in diameter, sawed at right angles to the axis. Drawings were incorporated into the contract by references: First, a general elevation plan; second, details of the different spans; third, de
The construction company performed, the bridge was built in accordance with the contract, and thrown open to travel in May, 1904. It was 1400 feet long from out to out. The abutments were of pine-timber caging filled with dirt. The upright posts in the bents were of sawed pine timber, 12 by 12. The spans varied in length.
Many photographs were introduced helow and were preserved in the record. We will present two of them. They will convey a clearer idea of the bridge than the wilderness of verbal descriptions of the witnesses and the dimensions, measurements, etc., with which the record profusely abounds. The first photograph is of a part (a side view) of the central section of the bridge over the tracks and indicates the design and character of construction supporting the superstructure; the other one is a view of the roadway and sidewalks of the superstructure, showing the railing, lamp posts, etc., together with a lumber plant and brick plant in the Mill creek valley which establishments used the grade crossing after the bridge was built and which will be again referred to.
In due time demand was made for the $15,000 ■to be paid under section seven of ordinance 11725, and, on failure to pay, suit was brought in two counts. 'The first was on the bond given under section five of •said ordinance. The second was on the contract evi•denced by section seven and the acceptance of the ordinance by the Frisco. The petition is unassailed and need not be reproduced. Finally the first count was dismissed and is out of the case. To the second count -defendants filed separate answers, which (mutatis, mutandis) for the practical purposes of this appeal, may be taken as the same. Therefore one will do for both.
On motion a part of both answers was stricken •out. The answer is too long to reproduce t'otidem verbis. • The substance of the defense left standing and of the matter struck out will do for appellate purposes. That part of the answer to the second count unaffected by the motions to strike out and on which the trial issues were framed is, in substance, as follows :
It is admitted that plaintiff is a municipal corporation; that ordinance 11725 and the acceptance of the Frisco created a contract between it and the city. The acceptance is pleaded in full, and the ordinance as set forth in the second count of plaintiff’s petition is admitted. It is nest alleged that it is an implied provision and condition of the ordinance, acceptance and ■contract that any bridges to be constructed on Kings Highway over the railroad tracks, or at any other place prescribed in the ordinance, “should be planned, de
So much for the answer left standing after the motions to strike out were passed on.
The motions to strike out were leveled in part at the following allegations of the answer (giving substance only):
(1) . Allegations that plaintiff city, in violation of ordinance 11725, the acceptance thereof and the contract, had kept open and in use, at grade, wagon and foot ways on Kings Highway on each side of the trestle bridge and declares its intention to maintain such grade crossings and had requested the Frisco railroad to plank said passageway and to maintain gates and gatemen thereat, although such grade passageways have not been paved nor improved, that the grade passageways are dangerous to those using the grade crossing, to the employees of the Frisco, and to passengers upon its trains and cast upon said railroad a heavy expense to guard against collisions and accidents; that such expense is greater than if the bridge had not been built; that the bents and supporting timbers of the trestle bridge are close together and obstruct the view of trainmen and of the flagman maintained by the Frisco at the crossing, and of travellers using the grade crossing, whereby it is made difficult to avoid collisions and accidents; and that because of the maintenance of said grade passage by plaintiff city a considerable and substantial travel uses the grade crossing instead of the trestle bridge.
(2) . Allegation that at the time of the passage of the ordinance 11725 and its acceptance and ever since that time it was the regular, established and general practice, use and custom throughout the city of St. Louis and State of Missouri to abolish grade crossings at places where bridges were constructed for public travel over railroad tracks; that the ordinance,
(3). Allegations that plaintiff city has put a practical construction on the contract in accordance with the custom, usage, implied term and conditions set forth in paragraph 2 above, vis., that the grade crossings were abolished at Jefferson avenue when a bridge was built in April, 1881; at Grand avenue when a bridge was built in August, 1889'; at Twenty-first street when a bridge was built in July, 1892, and at Chouteau avenue when a bridge was built in November, 1902. The answer is a bit obscure on one point. For instance, ordinance number 11725 was passed in June, 1881. It was accepted by the Frisco in July, 1881. Bearing these dates.in mind, it is alleged that a bridge over Jefferson avenue was completed in April, 1881 (that is before the passage of ordinance 11725), that the grade crossing was disused and abandoned at that time in pursuance of ordinance No. 11725, the acceptance thereof and the contract created thereby, and that such fact was a practical construction thereof to which the plaintiff city and the Frisco railroad at all times assented and concurred. To further the theory of a practical construction the answer pleads a certain other ordinance of plaintiff city, .vis., number 17189’, of date April 7,1893, and section 1748 of the Municipal Code of St. Louis adopted April 3, 1900, and now in force, providing that persons, associations or corporations, operating engines or cars propelled by steam on tracks along or across streets, avenues or roads used for wagon travel shall erect gates at such crossings, at which gates (unless automatically opened and -closed) such corporation, etc., shall keep watchmen
(4). Allegations that all the bridges constructed by the city of St. Louis at places referred to in ordinance 11725, except the Kings Highway bridge, were constructed and maintained in a durable manner and of durable material with substantial supports and abutments and not of trestle work and are of a permanent character; that plaintiff gave thereby a practical construction to ordinance 11725, the acceptance and the contract to the effect that bridges should not be of trestle work and of a temporary character, such as the bridge in question, but should be permanent with substantial supports and abutments — to which practical construction the Frisco at all times assented and concurred.
Finally, it is averred that the acts and omissions of plaintiff in the premises were unreasonable, oppressive and unlawful, in violation of the intent and meaning of ordinance 11725, the acceptance thereof and the contract created thereby as well as of said ordinance 17189' and of said section 1748.
The court struck out the matter summarized in paragraphs 1, 2, 3, and' 4, defendants saving their exceptions by term bills.
Learned counsel assail the judgment by an array of twenty-sis assignments of error. The first fourteen are predicated of error in sustaining the motions to strike out. They may be grouped as one. The next six are predicated of alleged errors in declaring, and refusing to declare, the law. They may be grouped as one for our purposes. The next six are the “usual” errors said to be committed, nisi — in this instance, in rendering judgment for plaintiff and not for defendants, and overruling the motions for a new trial and in arrest.
By agreement the cause was tried to the court without the aid of a jury. Therefore declarations of law are not of so much significance as they would be in a trial to a jury. Such declarations, given or refused, are chiefly of value to determine the theories upon which the trial court decided the case.
The case, in vital features, may be disposed of by a consideration, first, of two mandatory instructions in the nature of demurrers to the evidence” asked by defendants respectively and refused; and, second, by a like disposition of the ruling on the motions to strike out.
I. Of the demurrers. Keeping in mind facts already stated, a proper consideration of the mandatory instructions in the nature of demurrers seeks more of' the record. The trial court, as seen, left standing as defenses those allegations pertaining to, first, a bridge of reasonable permanence, not a mere temporary makeshift or a bridge in name only; and, second, the allegations pertaining to the dangerous character of the construction whereby the operation of defendant’s trains was unreasonably interfered with. The rulings of the learned trial judge were to the effect that plaintiff'
(a). As to durability and permanence. Although the court struck out the defense based on custom and use, yet on the issue of reasonable durability and permanence the testimony took a range wide enough to cover the use and custom in overhead bridge building for public travel in St. Louis and elsewhere over railroad tracks. There was testimony tending to show that the average life of a wooden bridge, such as this, was from eight to ten years; that in that time timbers most exposed to the ground would begin to rot and need replacing if the structure was to be kept in reasonable repair for use;.that it was practical and usual to repair such bridges by replacing decaying timbers from time to time or by gradually changing the character of the bridge from wood to steel or concrete or masonry; that such alterations could be made by replacing wooden abutments with concrete or masonry, or replacing the timber posts with steel, etc., and was allowable reconstruction according to approved bridge architecture. It was shown that to build a bridge of the width of Kings Highway (100’ ft.) of steel or concrete or of the length of this bridge would have cost one-half million dollars and to have built one forty-six feet wide (as was this) and of the same length would have cost one-quarter million; that the funds at the command of plaintiff in 1903 and 1904 were not adequate for building any such bridge. That there was present demand and need for a bridge at Kings Highway. There was evidence to the effect that wooden bridges are not now considered the best construction and the use of timber is not so much in evidence in that behalf as formerly. This was put on two grounds; first, the scarcity of timber and the
It is not necessary to go further into the vast details of the testimony. They cover much of the history of bridge building over tracks in St. Louis for many years. The upshot of it all was that defendants were unable to show that the word “bridge” used in the year 1881 in ordinance 11725 meant, by usage and understanding in bridge architecture or in
On such record we rule:
That durability and permanence are merely relative terms. Some wooden bridges would1 be temporary as compared with other wooden bridges. Again wooden bridges would be short-lived and, colloquially, might be termed “temporary” as compared1 with iron, steel or concrete.
That to read the words steel, iron, concrete or solid masonry into the contract, as defendants ’ counsel ask us to do, would be to make a new contract between the parties.
That (absent a contract designation of material) whether a municipality shall build a bridge out of bridge material commonly used like wood, or out of other material commonly used like iron, concrete, steel or solid masonry must depend upon the length of the purse of the municipality as compared to the length of the bridge, or on the character and extent of the travel at a given point, and on aesthetical ideas of architectural beauty — all of which later rest in the legislative discretion of the municipal assembly. "While courts will not enforce unreasonable ordinances, yet there is a presumption that municipal assemblies have exercised1 their discretion reasonably, and in this case the presumption agrees with the fact itself.
And, finally, that absent any substantial structural defect in" a wooden bridge, as here, making it unreasonably short-lived or of little value, the court would not have been justified in sustaining the demurrer on the ground of lack of durability and permanence. In this connection the court gave defendants’ two instructions indicating a correct view of the law, viz.:
“3. The court declares, as a proposition of law, that if the viaduct in question constructed by the plaintiff at Kings Highway is not a reasonably dura
“4.- The court declares, as a proposition of law, that if the viaduct in question constructed by the plaintiff on Kings Highway was not constructed of reasonably durable and permanent material, and mode of construction, then the plaintiff is not entitled to recover from either of the defendants.”
Having so formulated the law, the court found the facts against defendants. There was substantial evidence warranting such finding. We would not be justified in interfering with it any more than we would with the verdict of a jury where substantial proof supported it. Accordingly the point now up is ruled against defendants.
(b). Of the unreasonable interference with the operation of trains because of the dangerous proximity of the posts of the bridge. Bearing in mind the allegations in that behalf left standing in the answer, the theory of the trial court may be further gathered from the following instruction given for defendants:
“8. The court declares, as a proposition of law, that if the viaduct in question constructed by the plaintiff at Kings Highway was constructed with the bents so close to the tracks of the defendant St. Louis & San Francisco Eailroad1 Company as to be dangerous to the life or limb of any of its employees engaged in operating its engines, trains or cars over said railroad tracks at said place, then the plaintiff is not entitled to recover against either of the defendants.”
Going still deeper into the facts in order to determine the point, it appears that the Frisco has two main tracks passing under the bridge. All sides seem to agree that the upright posts of the bridge bents were not unreasonably close to them. At any rate, the weight of the evidence lay with that view. They seem to have a reasonably safe clearance. The real dispute relates to a safe clearance for side tracks. It seems
In the fall of 1905 the city entered into a negotiation with the Frisco looking to a realignment of some of the bents provided the Frisco would move its tracks to permit it. These negotiations resulted in the Frisco moving some of its tracks and in plaintiff moving some of its bridge bents, giving about a foot more clearance for some of the sidings.
On such récord we are of opinion, first, that the court gave defendants as favorable declarations of law as they were entitled to; and, second, that there was substantial evidence upon which the court could find against defendants on the merits of the issue. It is a case of conflicting testimony and we will not meddle with the finding of fact below.
We hold, then, that the demurrers were properly overruled.
II. Of the motions to strike out. They were well ruled, because:
(a). The master key, the prime and cardinal rule in construing a contract or law, is to ascertain the true
But these mere subsidiary aids fill no office, at all, when the contract is plain and unequivocal. In such case interpretation and construction by implication, in reading provisions in or out, are not allowed. Ex-pressum facit cessare taciturn. Again, where the suit is at law for damages for non-performance (as here) and not in equity to reform and reconstruct the contract because of mutual mistake, accident or surprise, it would be most unwise exposition'to press mere aids to interpretation so far and so hard as to make, in effect, a new contract for the parties hy adding vital and onerous terms by implication, unless no other just course is open. It is the settled1 policy of our law that contracts between individuals and munici
The Frisco, under the law of this State, was not entitled to run its tracks .on or across the streets of St. Louis without municipal leave first granted in apt and due form. (R. S. 1899, sec. 1035'.) That the city 'could put conditions upon such use of its streets goes as of course, and one of the conditions it prescribed and which the Frisco accepted was that it should pay $15,000 for each bridge built by the city on thoroughfares crossing its tracks. It may not for a quarter of a century gather the fruits and benefits of its right of entrance on or over streets, and now repudiate the burden imposed as a condition, except on one high and stringent condition, vis., that such repudiation be bottomed on a right arising from clear law.
The privilege granted by the city to cross its streets at designated points, if not in very strictness an exclusive privilege and monopoly, was in the nature of one. Therefore, in construing the contract creating such privilege it is a most just and wise principle of law that, if there are ambiguities, they should be resolved and construed in favor of the public.
In a celebrated case argued by Mr. Webster on one side and Mr. Greenleaf on the other (Charles River Bridge v. Warren Bridge, 11 Peters 420), Taney, C. J., in speaking to the principle just announced, said ’(pp. 545-6): “And it would present a singular spectacle, if, while the courts in England are restraining, within the strictest limits, the spirit of monopoly, and exclusive privileges in nature of monopolies, and confining corporations to the privileges plainly given to them in their charter; the courts of this country should' be found enlarg
The principle so announced is a guiding one, and if it has ever been overlooked or departed from in cases, courts have returned to it again as abiding and sound, concerning which there ought to be no difference of opinion.
So much by way of general observations pointing the way to a just conclusion on the motions. Mindful of them, we rale:
. (b). That the contract in question cannot be so-construed (either under the doctrine of “practical construction” or by reading into it some custom) that there shall be added the implied1 term that the city, simultaneously with the building of the bridge, or as a condition precedent to enforcing the payment of the pro rata price agreed upon, should do away with the grade crossing. We do not rule that under no cir
Circumstances alter cases. The reason for abandoning a grade crossing at one crossing might not apply to another. Each case may be properly left to a wise exercise of municipal discretion as over against a matter of right. That is where the Frisco left it when it agreed to the contract. That is where we leave it now. The motion to strike out was well ruled in this-particular. The matter pleaded was no defense.
(c). The same may be said of the ruling in regard to the custom and general usage pleaded. Defendants had the advantage of all evidence and rules
The conclusions announced cover the material features of the case. The declarations of law accord therewith. The cause was well tried and well decided. Accordingly the judgment is affirmed.