Liddy v. St. Louis Railroad

Fagg, Judge, delivered the opinion of the court. The respondent recovered a judgment in the Circuit Court of St. Louis county for the killing of her husband, Michael Liddy. It was a suit for damages under the second section of the act entitled “ An act for the better security of life, property,” &c., R. C. 1855, p. 647. The defendant is a corporation owning and operating a street railway in the city of St. Louis. Two general questions- are presented by the transcript of the record in this case: 1. Was the defendant, through its agents and servants, guilty of the negligence charged ? If so, 2. Did the conduct of the deceased indicate a degree of negligence on his part that contributed to produce the fatal re-suit, and thereby relieve the defendant from liability ? It may be remarked generally in reference to these corporations, that the questions growing out of their relations to the public, and the measure of their duty in respect to the care and diligence necessary to be exercised by them have been carefully considered and stated in former cases decided by this court. See particularly Kennedy v. North Mo. R.R. Co., 36 Mo. 351; Boland et ux. v. Mo. R.R. Co., 36 Mo. 484; Huelsenkamp v. Citizens’ Railw. Co., 37. Mo. 537, and the authorities there cited. We do not feel called upon to reexamine these questions now. These corporations are created by charters granted by the Legislature of the State, and their roads should be managed and operated in the manner therein directed, as well as in conformity with the ordinances of the City of St. Louis, so far as the same are not inconsistent or in conflict with the legislative grants. The [519] • > stipulations and conditions upon which they are permitted* to use their railways for the transportation of passengers within the limits of the city are fixed by the terms of a general ordinance. See tit. Railways, Rev. Ord. 1861, p. 550. It is provided by the ordinance that “ no car shall be drawn at a greater speed than six miles an hour”; and again, “the conductor and driver of each car shell keep a 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 vehicles or persons the car shall be stopped in the shortest time and space possible.” The law confers upon them no exclusive or peculiar rights and privileges. That portion of the street occupied by the railway is, nevertheless, a public highway, open to the use and enjoyment of all persons. The corporation can only use its track for the running of cars by the procuring a licence from the city, containing the conditions, stipulations, and restrictions, above stated. These go very far towards fixing the measure of its duties and liabilities to the public. In addition to this, it may be said that the peculiar character of the vehicles employed, running as they do through the crowded thoroughfares of the city, makes it incumbent upon every company to exercise the utmost care and diligence to avoid collisions. No other rule could be recognized as compatible with the safety and security of the .public. The recognition of thisf" rule, however, does not dispense with the care and prudence required of all persons using the street in common with the railroad company. If therefore, in this instance, the conduct of the deceased directly contributed to the injury by a failure on his part to observe ordinary care and diligence, then there ought to have been no recovery against the defendant. Our inquiries in this case will be confined to the declarations of law given and refused by the court below, with a view of ascertaining whether the issues were properly submitted to the jury or not. It was a question of fact for the jury, whether the rate of speed of the car at the time of the occurrence was within the [520] limit fixed by the city ordinance or not. Any thing beyond that is to be regarded as excessive and tending to show the negligence of the defendant. The duty of the defendant’s servants and agents to keep a vigilant lookout for vehicles and persons on foot, taking into consideration all the attending circumstances, was also a proper question for the consideration of the jury. Taking the instructions all together, and considering them as a whole, we think they were sufficiéntly warranted by the evidence, and presented the law of the case fairly to the jury. The other judges concurring, the judgment of the court below will be affirmed.