State Ex Rel. Vogt v. Reynolds

*380 ing in this court wherein relator seeks by our writ of certiorari to quash the opinion and judgment of respondents as judges of the St. Louis Court of Appeals in the case of Oscar Vogt, versus United Railways Company. We quote from the opinion of respondents as follows : ’ ‘ ‘ This is a suit for damages alleged to have accrued on account of personal injuries received by the plaintiff in a collision of a motor truck (on which plaintiff was riding, but which he was not operating) with one of defendant’s street cars, in the city of St. Louis. Judgment resulted in favor of plaintiff for the sum of! $3,000, and defendant appeals. ‘ ‘ The petition specifically pleads the last-chance doctrine, the Vigilant-Watch Ordinance, and the speed ordinance, which fixes the. speed of street, cars at not exceeding ten miles per hour at the place where the collision occurred. The answer is a general denial. “The testimony adduced on behalf of plaintiff and the testimony of the witnesses for defendant upon the essential facts in the case were contradictory; however, *381 there is no question but that there was substantial testimony sufficient to warrant the submission of the case to the jury on the assignments of negligence predicated upon the violation of the Vigilant-Watch Ordinance and the speed ordinance. “Plaintiff’s instruction numbered one, which covers the entire case and directs a verdict, which instruction is hypothesized upon plaintiff’s right to recovery on the issue of the violation of the Ordinance, must be condemned in that it has been ruled that under the Vigilant-Watch Ordinance the defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car by the use of the appliances at hand with safety to the passengers in order to avoid the collision, while said instruction permits a recovery against the defendant if the jury find that the motorman could have avoided colliding with the automobile truck upon which the plaintiff was riding after the motorman saw, or by the exercise of ordinary care could have seen, the truck upon which plaintiff was riding in danger of being struck by said car, by stopping the car, ‘within the shortest time and space possible under the circumstances, with due regard for the safety of the said ear and the passengers thereon.’ ” The opinion of respondent refers to, but does not set out, plaintiff’s instruction number one. AVe will therefore look to the record before the St. Louis Court of Appeals and examine said instruction in this proceeding as set out in said record, the same as we would if it had been set out in the opinion before us. [State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S. W. 498.] Said instruction, after setting out the substance of the Vigilant-Watch Ordinance, reads as follows: “. . . The court further instructs the jury that if you find and believe from the evidence that on the 17th day of April, 1914, the plaintiff was riding on the automobile truck mentioned in the evidence and that said automobile truck was moving either on or towards the *382 defendant’s street car track on O’Fallon Street at or near the intersection of said O’Fallon Street with Thirteenth Street; that while said automobile truck was so moving towards or upon the defendant’s said truck, a car of the defendant approached on said track from the east, and that the motorman of the defendant operating said car, by keeping a vigilant watch for vehicles ¡moving towards or upon the defendant’s said track, would and could have seen the said truck, upon which the plaintiff was riding, moving towards' or upon the defendant’s track, and in danger of being struck by said car, and that thereafter by stopping said car within the shortest time and space possible under the circumstances, with due regard for the safety of the said car and the passengers thereon, would and could have avoided colliding with the said automobile truck and injuring the plaintiff, yet failed and neglected to do so, and that the said act of the defendant’s motorman in' failing to keep such vigilant watch, if you find he did so fail to do, directly caused the injuries to plaintiff mentioned in the evidence, then your verdict must be for the plaintiff.” The respondents ’ opinion refers to the of the petition upon which the case was tried in the circuit court, but does not set the same out in full. By examining such petition as set out in the record before the St. Louis Court of Appeals, we find that there is pleaded in said petition as a ground for recovery a violation by the defendant of a portion of Section 2380 of ordinance No. 26653, approved November 9, 1912, as follows: “Sec. 2380. Subdivision Fourth: The conductor, motorman, gripman, driver or any other person in charge of each car shall keep vigilant watch for all vehicles and persons on foot, especially children,- either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible.” Relator contends that respondents’ opinion, the essence of which is above quoted, is in conflict with the *383 following controlling opinions of this court, to-wit: Gubernick v. United Railways, 217 S. W. 33, l. c. 35; Esstman v. United Railways, 216 S. W. l. c. 528; Spencer v. Transit Co., 222 Mo. l. c. 323-4; White v. Railroad, 202 Mo. l. c. 555-564; Eckhard v. Transit Co., 190 Mo. l. c. 605-621; Sluder v. Transit Co., 189 Mo. 107, l. c. 136; Riska v. Railroad Co., 180 Mo. 168, and Hovarka v. Transit Co., 191 Mo. l. c. 454-5. The question for our determination is whether respondents’ opinion is in conflict with controlling decisions of this court, by reason of the holding in said opinion that relator’s instruction one was erroneous, because the jury was not told therein that defendant was only responsible for the failure of its motorman to exercise ordinary caret to stop the car within the shortest time and space possible, etc. Relator’s instruction one places upon defendant the duty to stop the car within the shortest time and space possible under the circumstances, with due regard for the safety of the car and the passengers thereon and does not define the degree of care to be exercised by the motorman in so doing. Otherwise stated, the qustion is whether an instruction substantially in the language of the ordinance is sufficient under the latest controlling decision of this court, or whether our decisions have laid' down the rule that the motorman is only required to exercise ordinary care to stqp the car within the shortest time and space possible under the circumstances. Respondents hold in their opinion that under the rule laid down by this court in the case of Sluder v. Transit Co., 189 Mo. 107, the instruction was erroneous and must be condemned because the defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car, etc. Relator contends that respondents’ opinion must be quashed because it is in conflict with the Sluder Case, and does not in fact follow that case, and also in conflict with other cases decided by this court. It was contended in the Sluder Case that the *384 Vigilant-Watch. Ordinance a higher degree of .diligence and care than the common-law rule of ordinary care and imposes a harsher one, and for that reason is not in harmony with the general laws of the State, and hence void. ’ ’ GaNtt, J., said: “This objection to the ordinance in question was urged by the same learned counsel in the St. Louis Court of Appeals in Sepetowski v. Railroad, 102 Mo. App. 119, but that court held that ‘properly construed it is but declaratory of the common-law duty of corporations operating street railways in populous cities,’ and that conclusion is in harmony with the- decision of this court. [Riska v. Railroad, 180 Mo. 168.] . . . ‘ ‘ The same principle is enunciated in Holden v. Railroad, 177 Mo. 456, wherein the rule announced in Hicks v. Railroad, 64 Mo. l. c. 439, that ‘in running through towns and cities, and over public crossings, they are expected to be more careful than at other places where not so likely to injure persons or property,’ is.approved, as was the rule announced in Frick v. Railroad, 75 Mo. l. c. 609, to the effect that ‘ a less degree of vigilance will ordinarily be required between the streets of a town or city, than will'be required at a street crossing, or when running longitudinally in a street.’ Indeed, so apparent is the duty of the driver or.motorman in charge of cars moving on the rapid transit lines maintained by street oar companies, to keep a constant and vigilant lookout for persons and vehicles, that a failure to do so would be regarded as negligence. and a failure to exercise ordinary care in the absence of an ordinance.” Judge GaNtt then proceeds: “Our conclusion is that this ordinance . . . exacts no more than ordinary care, when the conditions and circumstances to which it is applicable are considered, and.that a breach of its requirements is negligence.” The opinion of respondents is not in conflict with what was actually said by Judge GaNtt in disposing of the Sluder Case. It is, however, in conflict with what *385 was in fact decided in that case when the entire record is carefully examined. Instruction three in the Sluder Case, as we have determined from an examination of our files, was as follows: “The jury are instructed that by the terms of the Ordinance No. 19,991, of the city of St. Louis, read in evidence, the defendant’s motorman, conductor or other person in charge of said car mentioned in evidence, were bound to keep a vigilant watch for vehicles moving towards defendant’s tracks, and upon the first appearance of danger to such vehicles, the person or persons in charge of said car were bound to stop said car within the shortest time and space possible, and a failure to keep such vigilant watch, and to stop said car, if you find from the evidence that defendant’s servants, agents or employees did so fail, was negligence on the part of the defendant, provided you find from the evidence that such failure directly caused such collision.” This instruction was attacked by appellant in that case on the ground that it required the car to be stopped in the shortest time and space possible, without any reference to the safety of the car and passengers thereon or to the surrounding circumstances. The instruction was not discussed in Judge opinion, but was clearly approved, as is evidenced by the following general language: “"We have considered all the propositions advanced for a reversal of the judgment, and in our opinion there was no reversible error committed on the trial, and the judgment is affirmed.” Instruction three in the Sluder Case is open to the objections respondents make to instruction one before us in the instant case and to additional objections of the same nature. But because of the failure of Judge Gawtt to discuss the instruction, the opinion of respondents is not out of harmony with what was actually rule of law that case. *386 _ But we have concluded that respondents ’ opinion is in conflict with Cytron v. Transit Co., 205 Mo. 692, wherein Lamm, J., in approving an instruction given in that case, said: “By plaintiffs’ fourth instruction the jury were told, among other things, that if they found and believed from the evidence that the motorman was not keeping a vigilant watch for all persons, especially children, either on said track or moving towards it, or that said motorman, upon the first appearance to him of danger to Morris, did not stop said car in the shortest time and space possible under the circumstances, consistent with the safety of the passengers and by the use of means at hand and under his control, and found from the evidence that said motorman by keeping such vigilant watch would have seen said child on said track or moving towards the same and in peril of being run over, and if by the exercise of ordinary care by so stopping said car in the shortest time and space, -etc., under the circumstances and consistent with the safety of the passengers and by the use of the means at hand and under his control, he could have saved the child, and if the jurors further find and believe from the evidence that the failure to keep such watch or the failure to stop said car as aforesaid was the direct cause of the death of the child, then your verdict shall be for plaintiff (unless you find the child or its parents were guilty of contributory negligence as elsewhere defined). We find no fault with this instruction. The rule of law announced by it was but the application of the Vigilant Watch Ordinance to the case and has been again and again approved by this court when applied to the facts in judgment.” Relator’s instruction one, which respondents criti-cise, is in harmony with the instruction approved in the Cytron Case, which case was decided by this Court in Banc after the Sluder Case was decided. The opinion of respondents is also in conflict with Spencer v. Transit Co., 222 Mo. 310, wherein an instruc *387 tion, subject to the same criticism respondents level against relator’s instruction one, was approved. Iiow-' ever, the point that the instruction in the language of the ordinance exacted more than ordinary care was not considered in the Spencer Case. In several cases, instructions based on the Vigilant-Watch Ordinance, have beeil approved where said instructions were subject to the same criticism respondents make of relator’s instruction one. In none of such instructions was the jury told that defendant was ‘ ‘ only responsible for the failure of its motorman to exercise ordinary care to stop the car by the use of the appliances at hand.” [White v. Railroad, 202 Mo. 539, l. c. 555 and 564; Eckhard v. Transit Co., 190 Mo. 593, l. c. 605 and 621; Riska v. Union Depot R. R. Co., 180 Mo. 168, l. c. 183.] There was nothing decided in Gubernick v. Railways Co., 217 S. W. (Mo.) 33, in conflict with respondents’ opinion. The degree of care required of the motorman in stopping his car was not discussed. The conclusion announced therein was that the Vigilant-Watch Ordinance was not the same thing as the humanitarian rule, and that contributory negligence was a defense in an action based on the violation of the ordinance. However, Guayes, J., in passing, said that the Vigilant-Watch Ordinance requires a higher degree of care than does the common law. The precedents found in the instructions approved in the cases above cited and in those discussed, including the instruction approved in the-Sluder Case itself, ¡support the correctness of relator’s instruction one. That instruction is substantially in the language of the ordinance, violation of which is negligence per se. We have carefully studied the Vigilant-Watch Ordinance, and it is our conclusion that it requires a higher degree of care than is required of a motorman under the (common law. The ordinance by its terms applies the same degree of care uniformly throughout all parts of *388 the city. The common law requires greater care at certain places than at others. It cannot he doubted that at certain places-in a travel-congested city the degree of care required by the ordinance is the same degree of care required at common law. This is certainly true at points in St. Louis, like Olive and Broadway. There the common law demands the highest degree of care because of congested traffic conditions. It demands that, at such a place and the presence of such congestion, the motorman keep a vigilant lookout for vehicles and persons on the track or moving towards it and if danger of collision appears, that the car be stopped in the shortest time and space possible. Such are the requirements of the ordinance, but the ordinance requirements are the same for the sparsely inhabited portions of the city and on little used streets. In such places the ordinance requires more than the ordinary care sufficient under the common law. It requires vigilance at all times and in all places. Vigilance imports something more than the attentiveness and watchfulness implied by the common law. The latter requires only such care to observe danger ahead as men of ordinary prudence exercise under like circumstances. True, it is greater care than that expected of one driving a safe team of horses in the same place, but it is only ordinary care after all when measured by the, character of the instrumentality employed and its capacity for and certainty of inflicting serious injury or death in the event of collision. Vigilant watch contemplates a sort of eager, sustained attention. “Vigilant” is defined by "Webster’s New International Dictionary as “alertly watchful as one keeping vigil;” “attentive to discover and avoid danger.” Applying this definition “vigilant watch” means a watchful watch, an attentive watch. 'Common-flaw care would permit the motorman on less used streets to relax somewhat and to assume that people and vehicles will stop before actually reaching and entering; the danger zone; or if already within such zone, that they will leave it in good time. *389 The Vigilant-Watch Ordinance requires the motorman to be prepared to stop- his car at the first appearance of danger within the shortest time and space possible. It requires the motorman to anticipate that those approaching the track will come within the danger zone and that those within it will not seasonably leave it. Under the common law the motorman could assume that no such intention exists in the mind of the person approaching until the contrary appears. If he is already on the track, the motorman is permitted to assume that he will in due time get off of it upon timely signal, and no duty to stop the car or to check its speed rests upon the motorman until it is reasonably apparent that such assumption cannot be safely relied upon. [36 Cyc. 1517; Bunyan v. Citizens’ Ry. Co., 127 Mo. 12, l. c. 17; Petty v. St. Louis Ry. Co., 179 Mo. 666, l. c. 676; Boyd v. Ry. Co., 105 Mo. 371; l. c. 381; Eckhard v. Transit Co., 190 Mo. 593, l. c. foot 618; Ross v. Street Railway Co., 113 Mo. App. 600, l. c. 606.] The foregoing considerations persuade us that the Vigilant-Watch Ordinance requires more than common law care requires. In stating that the ordinance is merely declaratory of the common law, the Sluder Case was in error and on that point must be overruled. Apparently that case was so ruled upon the theory that the ordinance could not be upheld if found to exact of the motorman a higher degree of care than is required at common law. If this is so, the decision was based on an erroneous conception of the powers of the city of St. Louis, which city under its charter has the power to regulate the use of its streets and power to regulate the operation over its- streets of streets cars, steam railroads and the like. The power of the city to regulate the use of its streets and highways and the power to protect the life and limb of its people are part of the police power of the State which it is entirely competent for the State to delegate to the city. This the State has done. By Article *390 IX, Section 16, of the Constitution of Missouri, both before and since said section was repealed and a new section of the same number was adopted at the election of November 2, 1920, the city of St. Louis had and has the power to frame and adopt a charter for its own government consistent with and subject to the Constitution and laws of the State. The city has adopted a charter under authority of this section. In Article I of said 'charter various sections are found dealing with the powers of the city which have a bearing upon the validity of the ordinance here in question. We particularly notice the following powers: Sec. 13. “To regulate the' . . . operation . . . of public Sec. 14. “To establish . . . maintain . . . public highways, street, boulevards . . . and regulate the use thereof.” Sec. 25. “To define and prohibit . . . and regulate all acts . . . detrimental or liable to be detrimental to the health . . . safety ... or welfare of the inhabitants of the city.” Sec. 33. “To do all things whatsoever expedient for promoting or maintaining the . . . health, welfare ... of the city or its inhabitants.” In Article XIX, under the title, “Franchises,” Section 1 provides: “All grants or renewals of franchises shall be . . subject always to the city’s power . . . and its authority' to regulate . . . methods of conduct or operation. . . .” It cannot be contended that there is anything in any of the foregoing sections not consistent with the Constitution or laws of the State, except in so far as the power to regulate the rates and service of the utilities of said cities is affected by the enactment of the Public Service Commission Act. The Vigilant-Watch Ordinance is an enactment in the exercise of the delegated police power of the city recognized in its charter. Said ordinance is clearly an- *391 thorized raider Article I, Section 14, empowering said city to establish streets and regulate the use thereof. We need look no further, yet it may well be said the enactment of said ordinance is authorized under the sections giving the city the power to regulate the operation of its public utilities; to prohibit acts detrimental or liable to be detrimental to the health, safety and welfare of its people; to do all things expedient for promoting or maintaining the welfare of its people. Under Section 8903, Revised Statutes 1919, the city has exclusive control over its streets. Thus ample power to pass the ordinance in question is found in the charter of the city and general statutory provisions. Nor can it be said concerning this ordinance that it is not in conformity with the general law of the State as limited by Section 8704, Revised Statutes 1919 (See. 9582, R. S. 1909), assuming that the common law in respect to the duty of the motorman in operating a street car is part of the general law of the State. The enactment of the ordinance is authorized by special provision of the charter. Nor is there such want of conformity to the general law as .to bring the ordinance within the inhibition of said Section 8704. The ordinance duty and the common-law duty differ in some particulars, it is true, but they are not out of harmony or inconsistent. The ordinance includes the common-law duty and something more, but that something more is not inconsistent with common-law duty. The reasoning of this court in St. Louis v. Cafferata, 24 Mo. 94, and in St. Louis v. DeLassus, 205 Mo. 578, fully sustains the power of the city to enact and enforce the Vigilant-Watch Ordinance. In both cases the city ordinance forbade the keeper of certain stores to sell therein any article on Sunday after nine o’clock a. m. The state law prohibited the sale of goods, etc., on Sunday, except the sale of drugs, medicines, provisions or other articles of immediate necessity. The ordinance forbade all sales after nine o ’clock a. m., while the state *392 law forbade sales at any time on Sunday, except certain necessary articles, which could be sold át any hour on Sunday. In the Gaffer ata Case, Leonard, J., said: “The ordinance under which the defendant was convicted was a lawful exercise of the power given to the local government £to make such rules, regulations, bylaws and ordinances for the purpose of maintaining the peace, good government and order of the city, and the trade, commerce and manufactures thereof, .as they may deem expedient, not repugnant, to the Constitution and laws of this State.’ [City Charter of March 3, 1851, art. 3, sec. 2.] The police regulations of the State upon this subject, to be found in the 34th and 35th sections of the 8th article of the act concerning crimes and punishments, have nothing to do with the present proceeding. The general Legislature have regulated the subject for the whole State as they deemed proper, and the city government have made local regulations as they thought fit for the good order and peace of the city. - The provisions of the two laws are different, but there is no such inconsistency between them as to annul or in any way affect the provisions of the local law (St. Louis v. Benton, 11 Mo. 61); and the defendant was subject to both laws and amenable to the penalties they prescribed.” In the DeLassús Case, Gantt, J., after quoting from LeoNabd, J., part of what we have above set out, said: “Merely because the city did not make its ordinance' as broad as the statute did not render it so inconsistent as to make it void. It could have made its ordinance as broad as the statute and in no wise have conflicted with the Constitution or general laws of the State. [St. Louis v. Schoenbusch, 95 Mo. 618; City of DeSoto v. Brown, 44 Mo. App. 152; Kansas City v. Hallett, 59 Mo. App. 160.] “Does the fact that the Legislature fixed the punishment for the sales on Sunday prevent the city making a higher fine? We think not, and so it was ruled in Kansas City v. Hallett, supra. The scope and purpose *393 of the statute and ordinance are the same, the one reaching the supposed evil by making it a criminal offense; the other, providing by ordinance for the civil prosecution. In State ex rel. v. Field, 99 Mo. 352, Judge Black, speaking for this court, of cities organized under Section 16 of Article 9 of the Constitution and the provision that they shall be ‘consistent with and subject to the Constitution and laws of the State,’ said: ‘Charters thus adopted will, of necessity, be more or less at variance, and that they will be unlike, in many respects, is within the contemplation of the Constitution.’ This statement has since been expressly adopted and reiterated in Kansas City v. Marsh Oil Co., 140 Mo. 458, and Kansas City v. Bacon, 147 Mo. 259. In the latter case, it was added: ‘ “Consistent with” does not import exact conformity, but means substantial harmony with the principles of the Constitution.’ ” ' For a full discussion of this subject see Peterson v. Chicago & Alton Railway Co., 265 Mo. 462, l. c. 480 and following pages.- The exercise of its police power by the State or the eity can only be declared improper or invalid when rules and regulations imposed thereunder can be said to be unreasonable. See State v. Smith, 233 Mo. 242, l. c. 265, and following pages where the authorities are discussed at length. Clearly the Yigilant-’Watch Ordinance is not unreasonable. There are the best of reasons why motormen operating street cars should be required at all times and in all places within the city to keep vigilant watch and to be prepared to stop said street cars in the shortest time and space possible. A street car is a ponderous death-dealing machine, and unless under control at all times is likely to inflict death and injury. Unless the operator is alert at all times to the slightest indication of danger and prepared to stop his car within the shortest time and space possible the instant danger-of collision appears, the likelihood of serious injury or death is *394 enormously increased. A child is likely to rush from the curb or some door-yard and come within the danger zone at any instant, even when the street is unoccupied. The favorite field for the exercise of the police power is in the protection of the lives of the people. The courts have gone to great lengths to sustain laws enacted under the police power. Clearly the power of the city to enact and to enforce its vigilant-watch ordinance cannot he doubted. Our view is that, while the Vigilant-Watch Ordinance requires a higher degree of care than the common law requires, yet, in making such requirement the city was reasonably acting within its appropriate authority. The foregoing observations may not he regarded as essential to the determination of the issue of conflict of opinion between the St.'Louis Court of Appeals and this court, but we feel fully justified in expressing our views as we have done, for the reason that the Sluder Case has caused much uncertainty and confusion among members of the bench and bar .concerning the ordinance under consideration, and in so far as it ruled that the ordinance is merely declaratory of common-law duty, that opinion should be gotten out. of the way. But it cannot he thus disposed of without a full discussion of the principles of law involved. The instruction condemned by respondents was well enough. It was not necessary to incorporate therein that the motorman was required only to exercise ordinary care to stop the car in the shortest time and space possible by the use of the appliances at hand, etc. Because the 'opinion of respondents is 'in conflict with the Cytron Case and other cases cited, the record of respondents should he quashed. It is so ordered. Woodson, Graves, Higbee and Walker, JJ., concur; James T. Blair, G. J., concurs in the result; Elder, J., dissents in a separate opinion.