97 Mo. App. 373 | Mo. Ct. App. | 1902
Lead Opinion
— The petition charges that, “On July 27, 1900, while plaintiff was driving a horse and. buggy west on Oourtois street, in the city of St. Louis, across defendant’s track on Michigan avenue, his buggy was struck and demolished by a car of the defendant, throwing him to the center of the defendant’s track, dragging him more than fifty feet, and causing a fracture of one bone in the right arm, and other injuries.”
The negligence charged is:
“1. That the employees of the defendant, in charge of the car, negligently and carelessly and un-. skillfully ran and operated said car at a highly improper, great and injurious rate of speed.
“2. That the mortorman, in charge of the car, failed to keep a vigilant watch ahead for the plaintiff, and failed to stop said car within the shortest time and space possible under the circumstances.
“3. That the defendant, by its agents, failed to ring the bell or give any warning of the approach of said car.”
Thé petition then set out the ordinance commonly called the “vigilant watch” ordinance, and charged that, the motorman of defendant’s car violated its provisions, and that “the failure of defendant to keep the provisions of said article, as it was bound' to do, directly contributed to cause the injuries to plaintiff herein complained of.”
Defendant moved the court to compel plaintiff to elect upon which one of the causes of action stated in the petition he would stand, for the following reasons:
*377 “1. Because the plaintiff has improperly united in the same count of his petition a cause of action founded upon common-law negligence with one arising upon what is commonly known as the ‘vigilant watch' ordinance.
‘ ‘ 2. Because the plaintiff has improperly united in the same count of his amended petition a cause of action arising ex delicto with another cause of action arising ex contractu.
“3. Because the plaintiff has improperly united a cause of action at common law with a cause of action based upon an ordinance. ’ ’
The motion was denied.
The answer was a general denial and a plea of contributory negligence, alleging that plaintiff drove upon the track in front of a moving car without looking or listening for its approach, which he might have seen cr heard, and that he negligently whipped up his horse and attempted to drive across in front of the approaching car when it was too close for him to safely do so.
The reply was a general denial.
The evidence is that plaintiff was driving west on Courtois street in a storm buggy with the curtains raised, in daylight, in the city of St. Louis, on the twenty-seventh day of July, 1900; that Courtois street crosses Michigan avenue running north and south. In Michigan avenue in a single railroad track. While attempting to cross Michigan avenue on Courtois street plaintiff’s buggy was struck by defendant’s electric street car running north and plaintiff was injured.
Plaintiff’s evidence is that he listened before attempting to cross Michigan avenue but did not hear the approaching car; that he looked but could not see it tor the reason that his view was obstructed by a wagon and that he did not see the car until it was upon him.
Other witnesses testified that they 'saw the car as it approached the crossing and that the motorman in charge had his head turned toward the inside of the car, seemingly engaged in conversation with some one in the car.
Plaintiff recovered a judgment from which the defendant, after an unavailing motion for new trial, appealed.
On the motion to elect, and throughout the trial, the court treated what is commonly known as the vigilant watch ordinance as a police regulation. The correctness of this view of that ordinance is challenged by the appellant. Its contention is that the ordinance is contractual and that a street railroad company can not be held to the extraordinary care the ordinance requires of a motorman unless its acceptance of the ordinance is both pleaded and proved by the plaintiff.
The fourth subdivision of section 1760 (the ordinance in question) McQuillin’s Annotated Municipal Code, page 797, reads as follows:
“The conductor, motorman, gripman, driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving toward it, and on the first appearance of danger to such persons*379 or vehicles, the car shall be stopped in the shortest time and space possible.”
In Fath v. Tower Grove & LaFayette R’y Co., 105 Mo. 537, it was held that the city of St. Lonis had power to pass the ordinance, but that it was beyond its power, by legislation, to create a civil liability enforcible at common law, bnt that it might exact of a street railway company compliance with the ordinance as a condition for the privilege of laying its tracks in the streets of the city, and that a yielding by the street railway company to the exaction would create a contractual relation between the city and the company and a breach of this contract, whereby a private person was injured, would render- the company liable to such person for the injury.
The doctrine announced in the Fath case has been approved in Senn v. The Southern Ry. Co., 108 Mo. l. c. 152; Sanders v. Southern Electric Ry. Co., 147 Mo. l. c. 425; Byington v. St. Louis R. R. Co., 147 Mo. 673.
In Holwerson v. St. L. & Suburban Ry. Co., 157 Mo. 256, it was held by Marshall, J., in division one, that the ordinance was penal, intended as a police regulation, and confers no right of action against the street railways upon the person injured by its cars and that a company violating the ordinance was subject only to the penalty prescribed by section 1772, article 6, McQuillin’s Municipal Code. None of the other judges of the division concurred in this view of the ordinance.
In Jackson v. K. C., Ft. S. & M. Ry. Co., 157 Mo. 621, in an opinion by Burgess, J., in division two, concurred in by Gantt, P. J., the doctrine of the Fath case is expressly disapproved, Sherwood, J., dissenting to so much of the opinion as disapproved of the doctrine of the Fath case. The ordinance under review in the Jackson case was one regulating the speed of trains on steam railways through a city of the fourth class. It was held that the city had power to pass the ordinance; that the ordinance was a police regulation, and injuries due to its violation were re
Schmidt v. St. Louis Ry. Co., 163 Mo. 645, is cited by defendant as supporting the doctrine of the Path case. It was held in that case that the objections to the introduction of the ordinance as evidence were not sufficiently specific to call the attention of the court to the point that the ordinance had not been accepted by the defendant company,, but whether or not the defendant was bound by the ordinance, without having accepted it, was not decided or discussed and the case is not authority in support of the Path case.
In Anderson v. Union Terminal Ry. Co., 161 Mo. l. c. 420, the cases of Sanders and Byington were approvingly cited, but the doctrine of the Path case was not discussed.
The Constitution makes it our duty to follow the last controlling decision of the Supreme Court. We have not been cited to any decision of that court, nor have we found one, in which the doctrine of the Path case was discussed, more recent than the Jackson case. We conclude, therefore, that the Jackson case is the most recent direct expression from the Supreme Court on the doctrine of the Path case and hold that the ordinance in question is a police regulation and that an injury due to its violation affords the injured party a right of action. We are not persuaded that the ordinance creates a new' duty or requires the exercise of extraordinary care by the motorman; on the contrary, it seems to us that tire ordinance requires of him the exercise of only ordinary caré, a care commensurate with the dangers constantly present with the running
Our understanding of the ordinance is, that as to individuals it is simply declamatory of the municipality’s approval of what, is commonly called “the humanitarian, or last chance doctrine,” to-wit, that it is the duty of the motorman in charge of a running street car to keep a vigilant watch ahead, and when he sees, or by the exercise of due diligence could have seen, the peril of the plaintiff in time to have avoided injuring him, and fails to do so, the company will be liable, which is the law in this State. In this view of the ordinance it is preferable to plead the facts constituting this phase of negligence rather than the ordinance.
The language of the last clause of the fourth subdivision of the ordinance, to-wit, “to stop the car in the shortest time and space possible,” is unfortunate. If taken literally it furnishes no guide to ascertain in what time and space a can may be ordinarily stopped. It' is possible, for a motorman of extraordinary strength to apply the brake of his car more effectually and to stop the car in a shorter time and space than can one of
The judgment is reversed and the cause remanded.
Rehearing
OPINION ON MOTION POR REHEARING.
— In his motion for rehearing plaintiff calls our attention to an instruction given in the case of the Conrad Grocer Co. v. Railroad, 89 Mo. App. (St. L.) 391, in which case the jury was told that it was the duty of the motorman and conductor to keep a vigilant watch, etc., and to the fact that the judgment in that case was affirmed whereas the judgment in the case at bar was reversed for error in giving a substantially identical instruction. The instruction in the Conrad Grocer Company case was not objected to on the ground that the jury was instructed that it was the duty of both the motorman and conductor to keep a vigilant watch, etc., and this feature of the instruction is nowhere mentioned in the opinion in that case and was evidently overlooked. The opinion in the case places the duty to keep a vigilant watch, etc., on the motorman alone. The case is, therefore, not authority for the notion that it is always the duty of both motorman and conductor to keep a vigilant watch, etc. Situations might be found when it would be the duty of both
The motion for rehearing is overruled.