12 Mo. App. 25 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This was an action by husband and wife for injuries to the wife by being thrown out of a milk-wagon, in consequence of a collision with one of the locomotives of defendant on defendant’s track in St. Louis. There was a verdict and judgment for plaintiffs.
There was evidence tending to show that Neier was a dairyman, and that his wife was delivering milk to cus
Poplar Street at the point of collision is twenty-one feet and one inch from curb to curb. The track of defendant’s road leaves eight feet between the rail and the curb on either side. The passenger cars in the train projected eighteen inches on each side over the track, which is five feet one inch between the rails. The track makes a very sharp curve from >the levee to Poplar Street. The accident took place about three hundred and eighty feet from the levee, on a heavy up-grade.
Evidence was introduced tending to show that Mrs. Neier might possibly have escaped if, in her strait, she had calmly done the very wisest thing possible under the circumstances. There was also evidence tending to show that she did the best that she could do, and the best that could be done, to escape. There was evidence tending to show
Plaintiffs introduced in evidence an ordinance of the city of St. Louis, No. 10,305, approved January 22, 1877, which provides that it shall be unlawful, within the limits of the city of St. Louis, for any car or locomotive propelled by steam, to run at arate of speed greater than six miles per hour, except on tracks upon the levee from Arsenal Street to Ehvood Street. The violation of the provision is made a misdemeanor subjecting the offender to fine not to exceed $500. Appellant objected to the ordinance as incompetent and irrelevant.
An instruction in the nature of a demurrer to the evidence was refused.
The court gave the case to the jury upon the following instructions, of which the last two were given at defendant’s instance. There was also an instruction as to the measure of damages, not set out in the bill of exceptions :
“1. If the jury find from the evidence that plaintiff Cath*30 erine, at the time mentioned in the petition, was the wife of her co-plaintiff Joseph Neier, and that defendant, at the time and place mentioned, by its agents or employees, ran its locomotive against plaintiffs’ wagon, and caused the injuries complained of, and that said collision was so caused through the negligence or carelessness of defendant or its-agents in the management of its locomotive, and without any want of ordinary care on the part of said Catherine, directly contributing to the happening of said collision, then they will find for the plaintiffs.
“2. Although the .jury may believe from the evidence that plaintiff Catherine was guilty of some negligence or imprudence which contributed remotely to the happening of said accident, yet, if they further find from the evidence, that the defendant, by the exercise of ordinary care and prudence, after having discovered the danger in which plaintiff was, could have avoided the calamity, then the jury will find for the plaintiffs.
“ 3. The court instructs the jury, that if they find from the evidence that plaintiff Catherine was in the habit of going in and along Poplar Street, between Second and Main Streets, in the city of St. Louis, about the time she so entered and passed along said street on the morning in question; that on or about the time she so entered, it was customary for a train or trains of defendant to pass over and along said street; that on the morning of the accident a watchman or flagman was stationed by the defendant at the intersection of Second and Poplar Streets aforesaid, for the purpose of warning persons on foot and in vehicles of the approach of defendant’s said train or trains, and that said watchman or flagman did so warn and notify plaintiff Catherine of the approach of a train ; or if you further find that plaintiff Catherine had any other timely notice thereof, and that by the exercise of reasonable care and prudence on her part, she could have avoided the injuries she received,*31 you will find for the defendant, although you may believe that the speed of defendant’s train exceeded the limit provided by the ordinance read in evidence.
“4. The court instructs the jury, that in the use of a public highway such as said Poplar Street, all persons are required to exercise reasonable care and prudence to avoid a collision, according to the different modes of travel adopted by each, and in considering this case you are at liberty to take into consideration all the facts and circumstances which affect the modes of travel adopted, and measure the care and caution required of both the plaintiff Catherine and the defendant by such facts and circumstances.”
The following instruction was asked by defendant and refused by the court: —
“Although the jury may believe that the city of St. Louis has the power to regulate the speed of defendant’s trains in running to and over said Poplar Street, still, such regulations must bo reasonable according to the necessities of the track thereon and the defendant’s business ; and if 3'on find that the' ordinance read in evidence is unreasonable in limiting the rate of speed to six miles an hour over said street, or the parts thereof in question, such ordinance is invalid, and does not affect this case, provided that you further find that defendant’s train, on the morniug in question, was running at a reasonable rate of speed, when all the facts and circumstances are taken into consideration.”
There was evidence to support the instructions given and the verdict. We think the case was fairly put to the jury. There was the evidence of defendant’s witnesses, uncontradicted, that the curve from the levee to Poplar Street was an unusually abrupt curve. There was nothing to show why defendant was compelled to lay down or maintain so abrupt, a curve that it could turn only by tearing along the street at the rate of fifteen miles an. hour. The instruction submitting to the jury the reasonableness of the munic
It is contended that the trial court improperly admitted this ordinance, the terms of which defendant complains are in conflict with the charter rights of defendant, unreasonable, and, as to defendant, void. This is really the point upon which this case turns, and the only question raised upon the record which need be discussed.
This case was argued and submitted in this court with the case of Joseph Neier against the same defendant, in which the action was for the loss of the services of the wife in consequence of the same occurrence in evidence in this case. Post, p. 35. Appellants’ counsel has filed in this case no other brief than that filed in the case of which Joseph Neier alone is plaintiff. The testimony in both cases, except for an omission of which we will speak, was substantially the same.
In this case the charter and amended charter of the Missouri Pacific Railway do not appear to have been offered in evidence ; in the other case they were put in, together with the deeds under which it is claimed that defendant acquired the rights which the Missouri Pacific Railroad had in this track. For the purposes of this opinion there can be no objection to treating this case as if that testimony was in the case. Both cases were argued and submitted together.
It is proper to add here to the statement of the evidence, that defendant introduced testimony tending to show that, owing to the increase of business from the elevators, it would be impossible to communicate with the Union Depot from the levee without keeping up a constant succession of trains and occupying the Poplar Street track day and night, if the locomotives of defendant were limited to a speed of six miles an hour along that track.
In the case of Atlantic and Pacific Railroad Company v. St. Louis (3 Mo. App. 315), which was a proceeding to enjoin' the city of St. Louis from tearing up this Poplar Street track, this court held that the charter of
The testimony is that Poplar Street, from the levee to Third Street, passes through a very densely populated part of the city of St. Louis ; the street is narrow, and intersected by much-travelled streets. We do not see hów it can be said that a case has been made out against the ordinance in question showing it to be so clearly unreasonable that the circuit court was bound, as a matter of law, to declare it void. St. Louis v. Weber, 44 Mo. 547. The city of St. Louis has always had the right to regulate the use of its streets. This right is conferred upon the city in express terms in every charter from a period before the act of 1849, authorizing the Pacific Railroad (under whom defendant claims) to construct a railroad from the city of St. Louis. And the act of assembly, approved February 15, 1864, entitled “An act for the convenient delivery of railroad freight in the city of St. Louis,” expressly provides, that “ the city council shall have the power to prescribe the time, manner, and rate of speed that may be adopted for the cars running over railroad tracks connecting the Missouri, Iron Mountain, and Pacific Railroads, with the St. Louis Grain Elevator on the levee.”
We are of opinion that if defendant runs its locomotives through and across the travelled streets of the city of St. Louis at the rate of fifteen miles an hour, it does so at
The j udgmentis affirmed.