105 Mo. 537 | Mo. | 1891
Action by infant, seven years of age, through next friend, for injuries received by the former, in consequence of coming in contact with one of the defendant company’s cars, which was alleged to have happened by reason of the negligence of that company, and, also, because of its negligent failure to observe the requirements of subdivision 4, of section 1246, article 6, revised ordinances, 1887, of the city of St. Louis. This was the substance of the petition. Said subdivision 4 reads as follows: “Fourth. 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.”
Section 1251 of the same article provides that “ any person, corporation, company or copartnership, or the president, superintendent or manager thereof, violating or failing to comply with any of the foregoing provisions of this article, except as otherwise provided
The answer of the defendant was substantially a general denial, as well as the following:
“Defendant * * * charges the fact tobe that the boy, Bernard Path, sustained certain injuries at the time alleged, which injuries were caused by his own acts and conduct in this: That while one of defendant’s cars was moving along Columbus street, in the city of St. Louis, in a usual and lawful manner, said child, without the knowledge of defendant’s driver, suddenly and unexpectedly, carelessly and negligently ran up to and against the moving car in such manner as to cause it to fall across the track upon which said car was moving ; that the driver of said car at the time observed proper care and diligence in the discharge of his duties, and was not guilty of any negligence in the premises. The defendant says that the injuries, if any, sustained by said child * * * were caused by the improper acts and negligent conduct of said child, as aforesaid, and by the negligence of said child’s parents in permitting said child to be upon the public streets without the care or control of an older person, and were not caused by the negligence or fault of this defendant, or any of its agents or servants.”
The evidence on behalf of plaintiff tended to show that the plaintiff, Bernard Path, was a boy betwéen four and five years old when he was injured; that on the twenty-sixth day of July, 1884, between six and seven o’ clock, and -when it was still daylight, said Bernard was on Columbus street, near Carroll, in the city of St. Louis ; that he was either upon defendant’s tracks, or approaching same as one of defendant’s cars moved northwardly along Columbus street; that the driver of defendant’s car either did, or by the exercise of proper care and diligence, could have seen the boy, and that he was in danger, and could have stopped the car
The defendant objected to the introduction of the ordinance on various grounds, among them that: “Said fourth clause of said ordinance is not a lawful rule governing diligence or negligence in this state ; that the same is illegal and void and against the law of the land,” and because the city had no right or authority to enact the same ; but the court overruled said objection, and said ordinance was admitted.
The evidence on the part of defendant tended to show that owing to some local disturbance of a trifling character a crowd of men, women and children had gathered on the sidewalk, in front of a house on the east side of Columbus street; that the plaintiff, Bernard, was in the crowd; that as the car came along a policeman suddenly scared and scattered the crowd; that the children ran in various directions; that plaintiff ran obliquely in a northwestern direction without looking ahead; that he struck the car between the mule and the dashboard ; that he fell and was caught by the brake rod and dragged along, but that the car was stopped in time to prevent the front wheel from passing over him ; that the driver of defendant’s car acted with great promptness and diligence in stopping the car, and that he could not have become aware of the dangerous approach of plaintiff earlier than he did.
Sections 20, 23 and 25, article 9, of the constitution, require that the charter of the city shall be in harmony with, and subject to, the constitution and laws of Missouri. Section 26, article 3, of the city charter also declares: ‘ ‘ The mayor and assembly shall have power within the city by ordinance not inconsistent with the constitution or any law of this state, or of this charter:
“ Second. To establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues, sidewalks, * * * and to regulate the use thereof.”
“ Fifth. To license, tax and regulate * * * street railroad cars, livery and sale stables, hackney carriages, private carriages, barouches, buggies, wagons, omnibuses, carts, drays and other vehicles, and all other business, trades, avocations or professions whatever.”
“ Tenth. To impose, collect and enforce fines, forfeitures and penalties for the breach of any city ordinance.
'•'•Eleventh. To grant to persons or corporations the right to construct railways in the city, subject to the right to amend, alter or repeal any such grant, in whole or in part, and to regulate and control the same, as to their fares, hours and frequency of trips, and repair of their tracks, and the kind of rails and vehicles.”
And sections 1 and 2, of article 10, of the charter, provide that: “The municipal assembly shall have power, by ordinance, to determine all questions arising with reference to street railroads, in the corporate
Section 20, article 12, of the constitution also makes provision that: “No law shall be passed by the general assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad ; and the franchises so granted shall not be transferred without similar assent first obtained.”
Though the subdivision of the ordinance under discussion has been in existence for over thirty years, its legal validity has never been adjudicated by this court, though incidentally touched upon in several instances.
I. Proceeding, then, to inquire into the validity of the ordinance, it may be admitted, at the outset, that it is beyond the power of a municipal corporation by its legislative action directly to create “ a civil duty, enforceable at common law;” for this is an exercise of power of sovereignty belonging alone to the state. This position is fully sustained by the authorities cited on behalf of the defendant.
But, if we may assume, as seems to be the case, from the powers conferred on the city by the provisions of its charter, as well as by section 20, of article 12, of the constitution, already quoted, that the defendant company was allowed to lay its tracks upon the streets of the city, upon condition of yielding obedience tb the municipal ordinances then or thereafter to be enacted, thereby entering into contractual relations with the city; if this has been done, and the ordinance quoted has been violated by the defendant company, resulting in injury, as the petition alleges, then these questions arise: What is the result of such violation ? And what, if any, the liability of the defendant and to whom liable, and the nature and extent of its liability in consequence of such violation % Now, if the case in hand arose upon a statute, and contractual relations had been entered into between
The principle here asserted is of ancient date, and is announced in the early case of Mayor of Lyme Regis v. Henley, 1 Bingham, N. C. 222, citing earlier cases, where it is said that, where a matter of public and general concern is involved, “and the king, for the benefit of the public, has made a certain grant imposing certain public duties, and that grant has been accepted, we are of opinion that the public may enforce the performance of those duties by indictment, and the individuals peculiarly injured, by action.” In Goshen, etc., Turnpike Co. v. Sears, 7 Conn. 86, it was ruled that the turnpike company, by accepting the charter of incorporation making the road, and receiving tolls of passengers, became bound to keep the road in repair ; and, where a traveler was injured by reason of the failure of the company to repair its road, he was held entitled to recover. To the same effect see Wilson v. Susquehannah, etc., 21 Barb. 68, and cases cited. In Conrad v. Ithaca, 16 N. Y. 158, and Hickok v. Trustees, reported in the same volume, the principle under discussion is thus formulated by Selpen, J.: “ That, whenever an individual or corporation, for a consideration received from the sovereign power, has become bound by agreement, either express or implied, to do certain things, such individual or corporation is liable in case of neglect to perform the agreement, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to inure to
Upon these authorities if the defendant company had gained the franchise of the use of the streets of the city through a contract made with the state, on certain conditions, either express or implied, and injury had resulted to anyone by reason of the contracting company failing to comply with such conditions, it is clear that a recovery could be had by such person, notwithstanding that- a pecuniary penalty could also be inflicted by fine for the same breach of public duty. Parker v. Barnard, 135 Mass. 116, and cases cited. In the case at bar should not the same principle dominate as to the
It seems that an affirmative answer must be returned in this case as well as in any other; for here all the constituent elements of such liability exist if the supposition with respect to the defendant company accepting the existing and future ordinances as a condition of laying its tracks and running its cars on the streets of the city be true, to-wit, the agreement, the consideration therefor, and the public duty to be performed as a consequence of such agreement, and under the terms of the constitution, and of its charter, it is not to be doubted that the municipal authorities pro hac vice represent the sovereign power of the state, nor that the duty thus enjoined is none the less a public duty because the area of its performance is circumscribed within the boundaries of the municipality conferring the franchises. Sustaining this position are these authorities : Hayes v. Railroad, 211 U. S. 228 ; Mason v. Oily, 77 Ill. 533; Siemers v. Eisen, 54 Cal. 418; Bott v. Pratt, 33 Minn. 323, and cases cited.
And it would seem that the municipal authorities had plenary power to enact the ordinance in question, at least so far as to provide a penalty for its breach ; this being provided for, and the ordinance accepted by the defendant company as a condition and as a consideration .for the granting of the franchise, the result of a breach of such ordinance causing injury to an individual should be that already indicated ; for it must be obvious that the ordinance in issue was for the benefit of all those who have occasion to use the streets of the city.
But it is said that “a city ordinance cannot change the common-law liability of a civil nature between private parties, nor fix a new standard of negligence for an action on the case.” This may be true if the ordinance is to be construed as having the direct effect of changing
Under this view the ordinance in question was clearly admissible in evidence, and, on the theory already approved, evidence should also be introduced in connection therewith so as to show the contractual relations entered into between the defendant company and the city and the breach of duty consequent thereon ; but at any rate the cause was improperly tried, inasmuch as the instructions given at the instance of the plaintiff and of the defendant were confusing and conflicting, one for the former exacting the highest degree of diligence of the defendant’s driver, while the instructions for the
For the reasons announced, the judgment of the St. Louis court of appeals, reversing that of the circuit court, should be affirmed, and the cause remanded to the former court to be proceeded with in conformity hereto.