Nutter v. Chicago, Rock Island & Pacific Railway Co.

22 Mo. App. 328 | Mo. Ct. App. | 1886

Hall, J.

—The city of Liberty was incorporated by an act of the General Assembly of this state, approved March 28, 1861 (Laws of 1860-1861, p. 209, et seq.) By section nine, article seven, of said act, it is provided as follows :

“This act is .hereby declared to be a public act, and may be read in evidence in all courts of law or equity in this state, without further proof.”

By virtue of said section the act is a public law; it is not necessary to plead it; the courts of this state will take judicial notice of its provisions. Bowie v. Kansas City, 51 Mo. 454.

Under the averment of the petition that the defendant’s train was run at a reckless rate of speed in the city of Liberty it was proper for the court to permit the plaintiff to introduce the ordinance in evidence, although it was not pleaded, as bearing on the question of recklessness in the rate of speed. The ordinance was admissible as evidence upon the question as to whether or not the rate of speed at which the train was being run was reckless. Robertson v. Ry. Co., 84 Mo. 119 ; Riley v. Ry. Co., 18 Mo. App. 387. The court, therefore, properly overruled the objection made by the defendant to the introduction of the ordinance in evidence. A rate of speed exceeding five miles an hour was not reckless per se, or unlawful, except as it was made so by the ordinance read in evidence. In order for the plaintiff to enforce that ordinance by this action, that is, in order for the plaintiff to recover in this action, not because the speed of the train was in fact reckless, but because it' was in violation of the ordinance, it was necessary for the plaintiff to plead the ordinance. Dillon on Municipal Corporations, sect. 346; Momey v. Kennett, 19 Mo. 551-555. This was not done. It was, therefore, error for the court to instruct the jury to find for the plaintiff if they believe from the evidence that the speed of the train exceeded five miles per hour, and that in consequence thereof the cow was killed, without further submitting to the jury the question as to whether the rate of speed, at which the train was being run, was, under the circumstances in proof, reckless. The ordir nance, although not pleaded, was evidence bearing on the question of recklessness. But the ordinance, because it was not pleaded, did not make a rate of speed, exceeding five miles per hour, per se, reckless or unlawful in this case.

Judgment reversed and cause remanded.

All concur.