159 Mo. App. 20 | Mo. Ct. App. | 1911
This is a suit for damages accrued on account of the death of plaintiff’s intestate. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is administratrix of the estate of her son Joseph C. Nicholas, deceased, who came to his death on the 17th day of May, 1909, through being run upon and killed by defendant’s automobile at the intersection of Sarah street and Westminster Place in the City of St. Louis. At the time of his death, decedent was about thirty-two years of age and an unmarried man without children, either natural born or adopted, and plaintiff prosecutes the suit as his administratrix, in accordance with the provisions of section 5425, Revised Statutes 1909, which, when considered together with section 8523, Revised Statutes 1909 pertaining to death by an automobile, authorizes such course of procedure.
The petition pleads an ordinance of . the city of St. Louis forbidding the operation of automobiles on
“All persons owning, operating or controlling an • automobile running on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a very careful person Would use, under like or similar circumstances, to prevent injury or death*25 to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel. Any owner, operator or person in control of an automobile, failing to use such degree of care, shall be liable in damages to a person or property injured by the failure of the owner, operator or person in control of an automobile, to use such degree of care, and in case of the death of the injured party, then damages for such injury or death may be recovered, as provided by section 2864, of the Revised Statutes of Missouri, as amended in 1905; unless the injury or death is caused by the direct negligence of the injured or deceased person, contributing directly thereto.” [Sec. 22, Laws of Missouri, 1907, p. 78. See also Sec. 8523, R. S. 1909.]
The evidence tended to prove, and the ease made affirms, that defendant’s automobile was being negligently operated by defendant’s servant within the scope of bis authority and on a mission for defendant at the time plaintiff’s intestate was run upon and Mlled thereby, and it appears, too, that defendant' himself was not present. In other words, defendant owner of the automobile was absent therefrom and was in no wise personally engaged in operating or controlling it. As the statute above quoted prescribes' an obligation of high care against all persons owning, operating or controlling an automobile in tbe circumstances therein suggested, it establishes a rule in derogation of the common law, for, aside from this enactment, the obligation of ordinary care obtains in like cases. Because of this fact, the statute is to be strictly construed, but not so as to defeat the obvious intention of the lawmakers, for, though a statute is in derogation of the common law and therefore to be strictly construed, the intention of the legislature to be gleaned therefrom must always prevail. Because of the rule of strict construction which obtains here, it is argued no recovery may be had against defendant
The statute above quoted provides substantially that the owner, operator or person in control of the automobile shall be liable in damages to the person or property injured by the failure to use high care and in case of death of the injured party then damages for