39 Mo. App. 447 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The defendant is a corporation organized under the laws of the state of Missouri, and owns and is engaged in operating a horse and street railway in the city of St. Louis. The plaintiff is a minor, prosecuting this appeal by his next friend Karl Path, and seeks to recover for personal injuries alleged to have been inflicted on him through the negligence of the defendant’s servants in running one of its cars.
In addition to the usual averment of negligence by defendant in running its cars, it was alleged by the plaintiff that the defendant failed to observe the requirements of subdivision four of section 1246 of article 6, of the revised ordinances (1887) of said city, and that, by reason of such failure, the plaintiff received great and permanent personal injuries. Subdivision four of the ordinance reads as follows: “The conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or, vehicles, the car shall be stopped in the shortest time and space possible.” The italics are our own. Section 1 of article 10, of the city charter, authorizes the city of St. Louis to grant to persons or corporations the right to construct railways on the streets of said city, and to regulate and control the same. Section 2 of this article confers on the mayor and the assembly power to regulate the time and manner of running cars on street railroads, etc. This power is to be exercised by the passage of ordinances not inconsistent with the constitution, or any law of this state. City Charter, section 26, article 3.
The evidence for the defendant tended to show that, just previous to the accident, a crowd of men, women and children were collected on the sidewalk, as the defendant’s car was passing along; that the crowd was scattered by a policeman, and that the children ran in various directions; that the plaintiff ran obliquely toward defendant’s car without looking in the direction in which he was running, and struck the car between the team and the dashboard; that he fell, and was dragged along by the brake-rod until the car was-stopped; that the driver acted promptly and stopped the car as soon as possible, and that he could not have become aware of the approach of the plaintiff earlier than he did.
The trial resulted in a verdict and judgment for the plaintiff, and the defendant, having unsuccessfully moved the court to vacate the judgment and grant a new trial, has brought the case to this court by appeal.
The defendant now complains of the judgment, and insists that it should be reversed, for the following
I. We cannot yield our assent to defendant’s first proposition. The right of the city to pass reasonable ordinances for the regulation and government of railways in running their trains within its limits, is well settled. Merz v. Railroad, 88 Mo. 676; Bergman v. Railroad, 88 Mo. 684. A violation of any such ordinance is negligence per se, and if personal injury to a citizen follows or results from such violation, then the cause of action of the party injured is complete. This doctrine has become so firmly rooted in the jurisprudence of this state that it is no- longer an open question. Karle v. Railroad, 55 Mo. 476; Keim v. Railroad, 90 Mo. 314; Dunkham v. Railroad, 95 Mo. 236; Kelly v. Railroad, 95 Mo. 281; Eswin v. Railroad, 96 Mo. 290; Fortune v. Railroad, 40 Mo. App. 252.
The cases relied on by the defendant as establishing a different rule were actions for personal injuries resulting from a failure on the part of the defendant to observe city ordinances requiring them to remove snow and ice from the sidewalks in front of their premises. In these cases, the danger to the pedestrian, by the accumulation of snovy and ice on the sidewalk, was the result of natural causes, and not through any act or fault of the property owners; and, as the general law
But ordinances for the regulation of steam and horse railways within the limits of a city rest on a different foundation. The owner of a street railway owes a duty to the public, and this duty grows out of, and has for its consideration, the privilege granted by the city to use a portion of the public street in operating its road. As a further consideration for such a privilege, the owner is compelled to submit to all reasonable rules and regulations governing the operation of the road, which the city government may deem necessary and adequate for the protection of the lives and property o'f its citizens. In. the case of Flynn v. Canton Co., etc., 40 Md. 312, the court, in discussing the right of an individual to maintain an action for the violation of an ordinance requiring snow and ice to. be removed from sidewalks, said : “ The duty or service here required is for the benefit of the public, and in consideration of no-private pecuniary gain to those upon whom it is imposed. It is not like the case where an individual is bound by a private-statute under which he derives a benefit, * * * nor like the case of turnpike companies or other private-corporations charged with the performance of certain duties by the acts under which they are incorporated. In such cases the duty is perfect and binding at all times, and its neglect is followed by this responsibility,, because it is founded on a valuable consideration or made the condition of the grant. ” The case of Heeny v. Sprague, 11 R. I. 456, was a similar case, and in disposing of it, the court pursued the same course of reasoning.
The court gave the instructions asked by both parties, and in this we think it committed error.
Our conclusion is, that the court committed error, both in the admission of the ordinance as evidence, and in charging the jury in the language of the ordinance. The common law furnishes a very safe and reasonable rule, and it is by that, we think, the defendant ought to be judged.
We do not wish to be understood as deciding that the ordinance is void as between the defendant and the municipal authorities. The judgment of the circuit court will'be reversed and the cause remanded.