169 Mo. App. 666 | Mo. Ct. App. | 1913
This is an action against Kansas City to recover damages for personal injuries plaintiff sustained while driving on Brooklyn avenue, one of the public streets. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $4500, and the cause is here on the appeal of defendant.
Brooklyn avenue is a paved street forty-two feet wide between the curb lines. Two street car tracks occupy a space fourteen feet wide in the middle of the pavement, leaving a space for vehicles fourteen feet wide on each side of the tracks. The owner of a house on the east side of the street in the block between Twenty-sixth and Twenty-seventh streets had caused a pile of material for the laying of a granitoid walk on his premises to be deposited and left in the street near the curb line and extending three or four feet towards the car tracks. The pile had been allowed to remain in that place ten days or two weeks before the date of the injury and, being composed of sand, gravel and cement, had become a hardened cohesive mass.
Plaintiff, the owner of a two-horse ice wagon, drove north on the east side of the pavement at about five o ’clock in the morning of September 13, 1910. The morning was misty and somewhat dark and he did not see the obstruction owing to the poor light and the absence of any warning signal. Pie was driving
Bnt it is argued by defendant that plaintiff was a trespasser on the street and defendant did not owe him the duty of reasonable care. Defendant offered in evidence an ordinance of the city which provides: “Hereafter no vehicles shall be used, driven or operated in or upon the streets, alleys or public places of the city without a license being paid for such use. And by reason of the fact that the streets and public places of the city are more rapidly worn and more constantly used by some vehicles than by others, the following schedules of license fees is hereby fixed to be paid for such use, to-wit: . . . wagons . . . when drawn by two horses or animals, $4.00 per annum.” The court sustained plaintiff’s objection to the introduction of this ordinance but for the purposes of the question raised by defendant we shall treat the ordinance as though it had been admitted and shall assume that the license fee had not been paid by plaintiff.. Further the ordinance provided that “any person . . . who shall violate any of the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction shall be fined in the sum of not less than two dollars, nor more than five hundred dollars for each and every offense.”
The ordinance leaves no room for doubt that its prime object is to raise revenue for the city and that the license fees for vehicles are in the nature of a tax imposed by the taxing power of the city. “The imposition of such a tax may be referable to the taxing power, the police power, or both; to the police power alone if the object is merely to regulate, and the amount received merely pays the expense of enforcing the regulations and to the taxing power alone if its main object is revenue.” [St. Louis v. Green, 7 Mo. App. 468, 70 Mo. 562; City v. Adams, 90 Mo. App.
Plaintiff was a lawful traveler on the street who had failed to comply with a revenue law of the city imposing a license tax on his vehicle and was subject to the penalty imposed for such violations of the law. He was subject to no other pains and penalties and since there can be no possible causal connection between his failure to pay the license tax and his injury, it is impossible to conceive of any just ground on which he should be treated as an outlaw and denied the benefit of the rule of reasonable care. The court did not error in sustaining plaintiff’s objection to the ordinance, nor was any error committed in overruling the demurrer to the evidence.
The petition alleges that plaintiff “has incurred and become obligated to pay large sums of money for hospital and nurse bills, medical bills and for physicians and surgeons in the sum of about two hundred and fifty dollars.”
The instruction given at the request of plaintiff on the measure of damages allowed him to recover “his expenses, reasonably and necessarily incurred for medical attention and medicines, if any, not exceeding the sum of two hundred and fifty dollars for such medical attention and medicines, if an^-.” The evidence of plaintiff tended to show that he had incurred obligations for physicians and-hospital service in excess of two hundred and fifty dollars and that
It is so ordered.