Sluder v. St. Louis Transit Co.

GANTT, J. This is an action for damages for personal injuries, caused by the collision of one of defendant’s street cars with a livery carriage in which plaintiff was riding, at the crossing of McPherson avenue by Boyle avenue, on which last-named avenue the defendant company owned and operated a double-track street railway, in the city of St. Louis. Plaintiff re: covered judgment in the circuit court for $6,000, and defendant appeals. The petition in substance states that on or about the 27th day of December, 1901, about 7:15 o’clock in the evening of that day, the plaintiff, a physician, was being driven in a hired livery carriage west along McPherson avenue, a street running east and west, at its intersection with Boyle avenue, a street running north and south, in the city of St. Louis, and that the lamps on the said carriage were lighted and burning brightly; that at said time and place, and as such carriage in which plaintiff was riding was crossing defendant’s south-bound or western street railway track, one of defendant’s cars, propelled by electricity and southbound on said track, with great speed, force and violence, struck and collided with said carriage, driving plaintiff’s right arm into his floating ribs, fracturing the large bone of plaintiff’s right fore arm, inflicting a body blow on plaintiff’s body opposite the solar plexus, rendering plaintiff unconscious, and seriously hurting, bruising and crushing plaintiff’s .back and body. “And plaintiff avers that at the time of receiving — 123 — said injuries, there was in force in the city of St. Louis an ordinance known as Ordinance 19,991 approved April 3,1900, which ordinance defendant, long prior to the happening of the accident complained of, accepted and agreed to he bound by the terms and provisions thereof; that section 1760 of said ordinance in substance provides that all street cars after sunset shall be provided with signal lights; that no ear shall be drawn at a greater speed than eight miles per hour, and that the conductor, motorman, gripman, driver or any other person in charge of each car shall keep a vigilant watch for all vehicles, either on the track or moving towards it, and on the first appearance of danger to such vehicle, shall stop the car in the shortest time and space possible. “And plaintiff avers that though at the time of receiving said injuries aforesaid, it was long past sunset and dark, defendant had negligently failed to provide said car with signal lights, or to place.a headlight on said car; that defendant’s servants in violation of said provision of said ordinance were running said car southwardly on Boyle avenue towards McPherson, at the time said injuries were inflicted, and immediately prior thereto, at a careless, negligent and dangerously high rate of speed, to-wit, at a rate of speed far in excess of eight miles per hour; that defendant’s servants in charge of said car, in violation of the provisions of said ordinance hereinabove referred to, negligently failed to keep a vigilant watch ahead for vehicles moving toward the track upon which said car was running, and negligently failed to stop or to- attempt to stop or check the speed of said car in the shortest time and space possible, when they saw, or by the exercise of ordinary care or diligence could have seen the vehicle in which plaintiff was riding, in a position of danger, in time to have stopped said car before striking said vehicle, or to have so checked its speed as to have avoided said collision; and for another and further as — 124 — signment of negligence, plaintiff states that at the time and place of receiving said injuries aforesaid, defendant’s servants in charge of said car negligently failed to sound the gong or to give warning of said car’s approach.” The answer of the defendant was a general denial and the following defense: “Second. Further answering, defendant says that whatever injuries plaintiff sustained, if any, were caused by his own negligence, in suffering and permitting the driver of said carriage to drive in front of the approaching car, when, by looking, he might have seen, or by listening he might have heard said car approaching, and have avoided the said accident.” The reply was a general denial. The facts developed in the trial were in substance the following: On the evening of December 27, 1901, the plaintiff was and for some time prior thereto had been a practicing physician in St. Louis. On that evening he ordered a carriage from the Palace Livery Company, a livery stable owned by Charles H. Wilcox, in the city. Wilcox sent a two-horse hack or carriage in charge of one of his drivers, Thomas Cavanaugh, to plaintiff’s residence, with directions to call for the doctor. When plaintiff got into the carriage he directed the driver to take him to a house on Westminster Place, the third from the corner of Forty-fourth Street, and gave no other orders. The driver drove into McPherson avenue, which runs east and west, to Boyle avenue, which runs south, beginning at Olive street. The first street south of Olive street crossed by Boyle avenue is Westminster avenue. Boyle avenue is 37 feet wide from curb to. curb, and McPherson is 40 feet in width. On Boyle avenue the defendant company has a double-track street railway from Olive street, which crosses both Westminster and McPherson as it goes south. At the — 125 — northeast corner of Boyle and McPherson there is a brick house facing south on McPherson avenue and standing back 30 feet from the north line of McPherson with its west side flush with the building line on the east side of Boyle avenue. On the opposite corner to the west or the northwest corner of Boyle and McPherson was a vacant lot, and on the southwest corner and fronting on McPherson was the residence of Mr. Jones. It was a dark, windy night, a little foggy — a dark and cloudy night. The driver of plaintiff’s carriage sat upon the top seat outside and on the front of the carriage and was driving west on McPherson avenue, on the north side thereof, and about seven or eight feet from the north curb stone, in a slow trot. The lamps on the carriage were lighted. Plaintiff sat on the back seat of the carriage and on the south side. The testimony of the plaintiff was to the effect, that as the carriage neared Boyle avenue a car passed going south, and the driver checked up a little and went forward in a little dog trot, and as he started across the track he heard the click of the wheels on the rails and heard the driver slap the horses, and he looked out of the north window of the carriage and saw a car at about what seemed to him fifty or sixty feet distant. He had hardly seen the ear when it struck the carriage and he received the injuries of which he complains. Cavanaugh, the driver, testified that he was proceeding, west, on McPherson in a slow trot, on the north side of the street, and when he got within seven or eight feet of the east rail of defendant’s tracks, a car passed south and then he looked both ways and saw no car coming and drove on to cross the tracks, and after he got on the west track he suddenly discovered another car coming south and only about 10 or 12 feet from him He tried to get out of its way but it came so fast he couldn’t do so, and it struck his carriage, the front part of it. He was thrown from the carriage on to the vestibule of the — 126 — car, right at the feet of the motorman. He testified he looted north before attempting to cross and saw no car. No bell or gong was sounded. The only light on the street car was a single incandescent bulb with a reflector at the top of the car. The force of the blow cut the horses loose from the carriage and they ran west on McPherson avenue. The car drove the carriage across McPherson avenue to a position differently estimated from twenty to forty feet south of McPherson avenue, and the rear platform of the car when it stopped stood over the crossing on the south side of McPherson. Two eye-witnesses testified in behalf of defendant, to-wit, young Masterson and the motorman, Middleton. The motorman testified he first discovered the carriage when he was very close to the north line of McPherson avenue; that his car was about 5 or 10 feet from the north crossing when he first saw it. Asked if a carriage was 25 feet from the east line of Boyle avenue, going west, on the north side of McPherson avenue, how far down or from what point on Boyle avenue he could first see that carriage, he answered, “about fifteen feet” from the north crossing of McPherson avenue; that is, he couldn’t see around the comer further east than that on account of the building on the corner; that the building was very close to the corner. Asked what there was to prevent him from seeing the carriage at a further distance than five or ten feet from it, he answered he was looking both ways to see if anything was approaching; that he had to look in more directions than one. There was liable to be carriages coming from other directions. He testified his car was running four or five miles an hour. He testified to seeing the boy (Masterton) on a pony about Westminster-Place, a block north'of McPherson. The boy was a little ahead of his car, riding south in a slow trot. He rang the gong for him near Westerns Ar or a little south of it. — 127 — Masters on testified he. remembered the incident of the car striking the carriage. He was riding a pony belonging to Watkins, a liveryman, going south on Boyle. He first noticed the car before he got to Westminster • Place. He heard it come around the corner from Olive street on to Boyle. He was riding then close to the track but pulled away from it. The bell did not ring nor the gong sound after it passed Westminster. It did ring two or three times between Olive and West-' minster. He looked back and the light on the car was very dim. He could see the light but it was very dim. The car was gaining speed all the time. It was going at a pretty good gait, about 15 miles an hour. “I was riding as fast as the pony would go.” He testified he ran his pony off into McPherson avenue, and after the collision caught the two horses that were attached to the carriage and brought them back; that the car stopped on the south crossing of McPherson and Boyle avenues. Plaintiff testified it looked as if it was going 20 to 25 miles an hour. Mrs. Penley says it was going very fast and she noticed' no effort to check the speed. Mitchell testified it was going nearly 20 miles an Imur. Cavanaugh says about 25 miles an.hour. On the other hand, the motorman and conductor placed the speed at 4 miles an hour. The plaintiff, himself a physician, and Hr. Harvey Gr. Mudd testified to the nature of the injuries received and their evidence tended to show not only serious injuries causing much pain and suffering but a loss of time from his practice entailing a large pecuniary loss. The instructions will be noted in the course of the opinion. I. The first proposition advanced for a reversal of the judgment in this case is that the court erred in not requiring plaintiff to elect upon which assignment of negligence he would proceed to trial. — 128 — This contention, is based upon the assumption that the petition blends causes of action ex delicto with causes of action arising ex contractu, and this in turn is predicated upon the principal insistence in this case, to-wit, that section 1760 of ordinance 19991, approved April 3, 1900, and commonly known as “the Vigilant Watch Ordinance,” from the fact that it provides that the motorman or other employee propelling a street car in said city shall keep a vigilant watch for all vehicles either on the track or moving towards it and on the first appearance of danger to such vehicle shall stop said car. in the shortest time and space possible, could only be passed under the power of the city to contract, and could not be passed under its police power to protect the lives, limbs and property of those using its streets in the pursuit of their lawful business, but could only control defendant and render it liable for its violation when it accepted it and agreed to be amenable to it, and hence a suit for its violation would be ex contractu, whereas the other acts of negligence were torts, either at common law or by statute or ordinance, and ex delicto. In the solution of this contention fundamental principles must be invoked. That the people in £he Constitution of the State or the Legislature in the exercise of its general legislative power, when not restricted by the Federal or State Constitution, may grant municipal corporations the power to pass all necessary ordinances for the protection of the safety of their citizens and their property is the settled law of this State, and such a delegation of power is no infringement of the maxim that legislative power cannot be delegated. [State v. Field, 17 Mo. 529; 1 Dillon on Munic. Corp., sec. 308, and cases cited; State ex rel. v. Francis, 95 Mo. 49; Morrow v. Kansas City, 186 Mo. 675; State ex rel. v. Murphy, 130 Mo. 10.] The freeholders’ charter of the city of St. Louis, adopted August 22,1876, has all the force and effect of — 129 — a legislative charter. [Kansas City v. Oil Co., 140 Mo. 468; City of St Louis v. Gleason, 15 Mo. App. 25; Ibid v. Ibid, 93 Mo. 33.] By section 1 of article 10 of the Scheme and Charter of St. Lonis it is provided that “the Municipal Assembly shall have power by ordinance to determine all questions arising with reference to street railroads in the corporate limits of the city, whether such questions may involve the construction of such street railroads, granting the right of way, or regulating or controlling them after their completion.” Under section 26, article 3, of said charter “The Mayor and Assembly shall have power within the city by ordinance not inconsistent with the Constitution or any law of this State or of this charter . . to establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves and public grounds and squares; . . . to construct and keep in repair all bridges, streets, sewers and drains and to regulate the use thereof,” etc. Elsewhere the charter gives the city power to declare and abate nuisancés and pass ordinances for the general welfare. Thus we find that the people of Missouri by their organic law have expressly delegated to the city of St. Louis the power to regulate the use of its streets and pass all needful ordinances expedient in maintaining the peace, good government, health and welfare of the city. [State ex rel. v. Murphy, 130 Mo. 22; Railroad v. Kirkwood, 159 Mo. 239; sec. 20, art. 12, Const, of Mo. 1875.] Discussing section 26 of article 3 of the St. Louis charter, in St. Louis v. Western Union Telegraph Co., 149 U. S. l. c. 469, the Supreme Court of the United States said: “It is given power to own and establish streets, to improve them as it sees fit, and to regulate — 130 — their use, paying for all this out of its own funds. The word ‘ regulate ’ is one of broad import. It is the word used in the Federal Constitution to define the power of Congress over foreign and interstate commerce, and he who reads the many opinions of this court will perceive how broad and comprehensive it has been held to be. If the city gives a right to the use of the streets or public grounds, as it did by ordinance No. 11,604, it simply regulates the use when it prescribes the terms and conditions upon which they shall be used.” Judge Dillon in his Municipal Corporations (4 Ed.), vol. 2, sec. 713, says: “Resulting from the power over streets, and to protect the safety of citizens and their property, municipal corporations may control the mode of propelling cars within their limits, may prohibit steam cars and regulate the rate of speed.” It is not then to be questioned that, under the comprehensive grant in its charter, the city of St. Louis has the police power to regulate the use of its streets by street car companies for the protection of the public which uses them for the paramount purpose for which they are established, to-wit, for travel thereon, and so long as they are streets the city itself cannot appropriaté them even to another public use which would wholly or practically deprive the public of the right to travel thereon. [Lockwood v. Railroad, 122 Mo. 86; Khapp & Co. v. Railroad, 126 Mo. 26.] Looking, then, to the ordinance which requires of street railway companies that its motormen and other servants propelling their cars on the streets keep a vigilant watch for vehicles and persons on their tracks or approaching them, it is too clear for argument that in enacting said ordinance it was exercising its governmental police power under its authority over and to regulate the use of said streets, and not its proprietary right to contract for its municipal advantage as such. That St. Louis and the other cities of this State have the power to regulate the speed of trains — 131 — running along or across its highways has been asserted by this court on numerous occasions, and this is expressly conceded by defendant, both in the briefs of its counsel and in the oral argument. This question was thoroughly examined and so decided in Jackson v. Railroad, 157 Mo. 621. In that case Burgess, J., collates the decisions of this court from an early period down to the promulgation of the opinion in that 'case and reference only need be made to that case for them. Counsel earnestly labor to show that there is a distinction between an ordinance regulating the speed of cars in and across the streets, and one requiring the motorman to exercise a vigilant watch for vehicles and pedestrians, especially children, on the track of such street railways or moving toward it, but it is obvious that both spring from the same power to regulate the use of the streets for the protection of the traveling public, their lives, limbs and property, and both alike fall within the recognized domain of a police law. In Bluedorn v. Railroad, 108 Mo. l. c. 443, Judge Black, speaking for this Court in Banc, said: “Our attention has not been called to any provision of the charter of the city of St. Louis which gives the city power, in terms, to regulate the speed of railroad trains; but the charter, among other things, gives the mayor and assembly power to regulate the use of streets; to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health; to declare, prevent and abate nuisances on public or private property and the causes thereof; and to pass all such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures. It is well to bear in mind that laws and ordinances regulating the speed of railroad trains are police regulations purely. [Grube v. Railroad, 98 Mo. 330; Knobloch v. Railroad, — 132 — 31 Minn. 402; Railroad v. Deacon, 63 Ill. 91; Thorpe v. Railroad, 27 Vt. 140.] ’’ Indeed, Judge Redeield says: “We should enter-. tain no doubt of the right of the municipal authorities of a city or large town to adopt such an ordinance without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdiction.” [2 Redfield on Railways (5 Ed.), 577-8.] But it is unnecessary to look for support for a proposition so universally conceded as that ordinances regulating the speed of trains in cities are referable to the police power, and that such regulation is based upon the obvious necessity of compelling those who use powerful and dangerous agencies on the public thoroughfares to be careful that they do not injure others who have an equal right to the use of the highway, and the obvious fact that a train of cars moving slowly can be much more readily stopped to prevent a collision than one moving at a rapid speed. On identically the same 'principle is the ordinance for a vigilant watch based. Since the adoption of electricity and cables as the motive power the danger to pedestrians and those traveling in vehicles on the streets is greatly multiplied, and it is a wise and salutary provision that requires the motormen in charge of these ponderous and rapidly moving cars- to carefully watch that they do not run over pedestrians, old men, women and children who have an equal right to the use of the streets, and such an ordinance falls as clearly within the police power as does the speed ordinance. Being then the exercise of the police power, the ordinance does not depend upon the acceptance of the street car companies to make it obligatory upon them to obey it, but it is a municipal law enacted by the city in its governmental capacity, of which all who come within its scope are bound to take notice, and it has the full — 133 — force and effect of law within the limits of the corporation. [Jackson v. Railroad, 118 Mo. 218, 219.] Being a police power it was and is not within the power of the city to contract it away or to bind itself not to exercise it whenever the public good or exigencies require its exercise. This is so universally recognized that it is unnecessary to refer to precedents to establish it. But, say counsel, even if this be conceded, thepower is coupled with a power to prescribe limited punishment by fine, penalty or imprisonment for disobedience only, and no civil liability to any third party injured by a violation of the ordinance can result therefrom. This contention finds support in the decisions in Fath v. Railroad, 105 Mo. 537; Byington v. Railroad, 117 Mo. 673; Murphy v. Railroad, 153 Mo. 252. All the subsequent cases are bottomed upon the Fath case in which, although unnecessary to the decision of the case, arguendo, it was held “that it is beyond the power of a municipal corporation by its legislative action directly to create; ‘a civil duty enforceable at common law; ’ for this is an exercise of the power of sovereignty belonging alone to the State.” In Jackson v. Railroad, 157 Mo. 635, et seq., Burgess, J., reviewed all the authorities upon which the doctrine above announced in the Fath case was bottomed, and showed conclusively that those decisions had reference to that class of cases in which private persons sought to avail themselves of a violation of ordinances which the city had passed for its own protection and for which the city was primarily liable, such as the ordinances requiring owners to remove ice and snow upon the sidewalks adjoining their premises and ordinances of a similar character, and pointed out that those cases were different from those founded upon the violations of ordinances enacted under the police power for the protection of lives and property, which all cities in this State have the right to pass as police regula — 134 — tions, and which relate primarily to the duty of those whose conduct they regulate for the benefit of persons traveling on the streets, who have a right to rely upon the observance of such ordinances. The line of demarcation is clearly drawn between the two classes of ordinances in the Jackson case, and is abundantly sustained by authority in other States, and by the text-writers. Thus, in 1 Shearman & Redfield on Negligence (5 Ed.)., sec. 13, it is said: “The violation of any statutory or valid municipal ordinance, established for the benefit of private persons, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, brought by a person belonging to the protected class, if the other elements of actionable negligence concur.” In Bott v. Pratt, 33 Minn. 323, cited with approval by this court in Bluedorn v. Railroad, 108 Mo. 439, and Jackson v. Railroad, 157 Mo. 636, the distinction was clearly drawn and emphasized, and the authorities throughout the Union collected and distinguished. The opinion in Jackson v. Railroad, 157 Mo. 621, however, answers the contention of defendant fully on this point. As to the criticism of the opinion in that case as obiter on this proposition, the contrary is the fact. In that case the learned counsel for defendant in that case in the second paragraph of their brief made the point that “the petition did not state a cause of action because it did not show the existence of a civil duty owed by defendant to deceased and enforcible against it at common law,” and there was no allegation of a contract between defendant and the city to comply with the regulations pleaded. [Jackson v. Railroad, 157 Mo. loc. cit. 624.] Not only was the point fairly and ably presented, but counsel for defendant were right in assuming that the obiter in the Fath case was to be followed, and that since the street car company in St. Louis could not be — 135 — held amenable to the police regulations of said city then no reason existed why railroad companies in other cities should not avail themselves of this exemption for violations of like police regulations, unless forsooth they had signified their consent to be amenable thereto. So that counsel were not only justified in making the point, but we would have been wanting in respect to counsel had we not considered the point and decided it. It is urged also that, until the Jackson case, no one had questioned the Path case, and that, this court had followed the latter case is several decisions. This is true, but we duly considered these decisions, and because in our opinion they were not in harmony with an unbroken line of decisions from Karle v. Railroad, 55 Mo. 476, down to Prewitt v. Railroad, 134 Mo. 615, in all of which it had been held that the running of a railroad train through the corporate limits of a city in excess of the speed prescribed by ordinance was negligence per se and a cause of action resulted to any person injured by such violation of the statute. [Vide cases cited in Jackson v. Railroad, 157 Mo. loc. cit. 641.] Jackson v. Railroad, 157 Mo. 621, has received the approval of this Court in Banc in Weller v. Railroad, 164 Mo. 180, and the principle upon which it stands has been reiterated in Hutchinson v. Railroad, 161 Mo. 246, and Wendler v. People’s House Furnishing Co., 165 Mo. 527, and Cox v. Railroad, 174 Mo. 605, and we see no reason for regarding it longer as an open question in this State. Fath v. Railroad, 105 Mo. l. c. 545, and the subsequent cases of Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad; 153 Mo. 252; Sanders v. Railroad, 147 Mo. 411; Holwerson v. Railroad, 157 Mo. 245, which announce the doctrine that no cause of action can arise to a person injured from the violation of such an ordinance as this, should no longer be followed. Since the promulgation of the opinion in Jackson v. Railroad, 157 Mo. 621, the St. Louis Court of Appeals has fol — 136 — lowed it in various cases. [Gebhardt v. Transit Co., 97 Mo. App. 373; McLain v. Railroad, 100 Mo. App. 385; Moore v. Railroad, 95 Mo. App. 728; Sepetowski v. Railroad, 102 Mo. App. 119.] There was no misjoinder in uniting the several grounds of negligence in one petition. The failure to keep a vigilant watch out for vehicles was not a cause of action arising out of contract and it was not necessary to prove the company’s acceptance of the ordinance. This brings us to the next insistence of defendant, to-wit, that the ordinance exacts a higher degree of diligence and chre 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. 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.] As was said by Judge Sherwood, in Lamb v. Railroad, 147 Mo. loc. cit. 204, that although there was no ordinance of the city of Pleasant Hill, regulating the speed of engines and requiring the ringing of the bells on the engine and although in his opinion the eighty rods statute did not apply in such cities, “but while we say this, at the same time we say that outside of the statute, and under the principles of the common law, a railroad corporation would not perform its full duty of ordinary care, unless those employed on a switching engine, engaged in its customary avocation, should ring its bell, or if necessary, take any other precaution adapted to the exigency which, like the mercury in the — 137 — thermometer, determines to what degree prudence shall rise in order to reach the mark of ordinary care.” 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 Prick 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 car 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. Certainly such an ordinance is not out of harmony with anything in the Constitution or laws of this State. But learned counsel urge that if it does not require more than ordinary care, then there is no excuse for its existence. It is a novel argument against the validity of a statute that it conforms to the laws of the State and requires the same prudence that the general law of the State exacts, particularly so when the charter of the city commands that its ordinances shall be in harmony with the Constitution and laws of the State. "We can see no merit in this contention. Our conclusion is that this ordinance was the exercise of a. police power clearly vested in the city for the protection of the lives and property of its citizens on its streets; that it exacts no more than ordinary care, when the conditions and circumstances to which it is applicable are considered, and that a breach of its — 138 — requirements is negligence; that the acceptance or agreement of the defendant company was not at all necessary to give said ordinance the binding force of a valid municipal law within the limits of the city. II. A second insistence is that the eighth instruction given in behalf of plaintiff was erroneous. That instruction is in the words following: “8. The court instructs the jury that the carriage and horses used by the plaintiff at the time of the accident belonged to a livery-stable keeper, and if they further believe from the evidence that the driver of the carriage was an employee of the livery-stable keeper, and that the plaintiff hired said carriage, horses and driver from said livery-stable keeper, and exercised no control over the movements of said carriage or the handling of said horses, except to give the driver his destination, then the jury are instructed that the driver was not the servant of the plaintiff', and although they may find from the evidence that the plaintiff’s said injury was contributed to by the negligence or want of ordinary care of said driver, without any co-operation on the part of the plaintiff, yet the jury cannot impute such negligence of said driver to the plaintiff, and if they find that the injury was caused both by the negligence of defendant as explained in the foregoing instructions and the negligence of said driver, they will yet, nevertheless, find for the plaintiff.” The objection to this instruction is twofold, first, that the driver in the circumstances detailed in evidence was the servant of and under the control of plaintiff, and therefore the driver’s negligence was plaintiff’s contributory negligence; second, that it ignores plaintiff’s own personal contributory negligence in failing to look out for his own safety, in permitting the driver to drive into obvious danger. As to the first, counsel for defendant do not insist — 139 — upon the doctrine of Thorogood v. Bryan, 65 Eng. Com. Law (8 M. G. & S.) 114, wherein it was ruled, “that a passenger upon the vehicle of a common carrier who sustains an injury which is the result of the concurrent negligence of those in charge of such vehicle and third persons is so identified with the former as to be chargeable with their negligence in an action against the latter, and therefore only entitled to recover damages from his former carrier.” The doctrine of that case was afterwards repudiated by the Court of Appeals in England in the case of “The Bernina,” 12 L. R. Prob. Div. (1887) 58, and other cases, and by this court in Becke v. Railroad, 102 Mo. 548, et seq., in which Brace, J., reviewed all the English and American decisions on this point. The decision in .Becke v. Railroad has been repeatedly followed by this court. [Dickson v. Railroad, 104 Mo. 491; O’Rourke v. Railroad, 142 Mo. 352.] And such has been the uniform ruling of our Courts of Appeals. [Hunt v. Railroad, 14 Mo. App. 160; Keitel v. Railroad, 28 Mo. App. 657; Munger v. Sedalia, 66 Mo. App. 629; Profit v. Railroad, 91 Mo. App. 369.] The distinction claimed between the Becke case and this is, that the driver in this case was subject to the orders of plaintiff and if plaintiff had the right to control the driver and failed to exercise it, he is responsible for the driver’s act. It is well that we determine at the outset what relation plaintiff and the driver Cavanaugh bore to each other. We think it is plain that Dr. Sluder contracted with Hickox, the owner of the Palace Livery Stable, to transport him to the residence of his patient on Westminster avenue near 44th street. In the performance-of his part of the contract of conveyance, Wilcox sent his carriage and driver. The carriage and horses were in the control of Wilcox through his agent and driver all the time it was occupied by plaintiff, just as much so as if Wilcox himself had driven it, and it is a confus — 140 — ion of legal principles to say that under such circumstances the relation of master and servant existed between plaintiff and Wilcox or that of principal and agent — nor was such relation created between plaintiff and Cavanaugh, Wilcox’s driver. The evidence shows that plaintiff ordered the carriage to take him to the house on Westminster and when the driver came, simply told him where he was to go and gave no other directions, and, assumed no control over Cavanaugh as to the management of his team or the route he was to take. This identical question arose in Randolph v. O’Riordon, 155 Mass. 331, and the Supreme Court of that State held the relation of master and servant was .not created by a mere contract like this for a conveyance. Said the court: “Whether the hack and driver were hired at a public stand or of a private person could make no difference, nor whether the' party furnishing them was engaged in the business of a common carrier of passengers or not. It would not do to say that one who buys a passage from New Tork to Liverpool sustains the relation of master to the officers and crew and owners of the steamer on which he embarks. No more would it do to say that one who buys conveyance for his own person or his family from place to place within the same city, or to an adjoining city, thereby assumes the relation of master to a servant or liability for his acts uncommanded and uninterfered with by him.” The court then proceeds to show that Thorogood v. Bryan, upon which the defendant rested in that case, stood upon “indefensible ground,” citing Little v. Hackett, 116 U. S. 366-375, and many other cases. , In Railroad v. Steinbrenner, 47 N. 3. Law 161, it appeared that plaintiff hired a coach and horses with a driver from one Merkins to take his family on a particular journey. In the course of the journey, in crossing a railroad track, the coach was struck by a passing — 141 — train and the plaintiff was injured. In his action against the company for damages, it was held, that the relation of master and servant did not exist between plaintiff and the driver and that the negligence of the driver co-operating with that of the persons in charge of the train which caused the accident was not imputable to the plaintiff as contributory negligence to bar his action; that, while a passenger in a hired coach might by words or conduct at the time so encourage a special act of rashness or careless driving as to commit an act of negligence which would bar a recovery, in order to impute contributory negligence to the passenger it must arise from his own conduct, and the negligence of the driver alone without some co-operating negligence on his part could not be imputed to the passenger in virtue of the simple act of'hiring. Such is the settled doctrine in England. In Quarman v. Burnett, 6 M. & W. 499, the defendants were the owners of a carriage and were accustomed to hire horses and coachmen of a job mistress for a day or a drive for which the job mistress charged and received a certain sum. The defendants generally had the same horses and always the same coachman. As a gratuity they gave the coachman two shillings for each drive, and provided him a livery hat and coat. He had driven the defendants one day and on his return after the defendants had alighted, the coachman left the horses and carriage unattended. The horses ran off and ran against the plaintiff’s chaise, threw him out and'injured him and damaged the chaise. Plaintiff sued the owner of the carriage, but it was held the driver was not the servant of the owner of the carriage, but of the job mistress who alone was liable for his negligence. Without citing further authorities we think the instruction was correct in advising the jury that the driver in this case was not the servant-of Dr. Sluder — 142 — so as to make the latter guilty of the driver’s contributory negligence, if any. "We have examined with care the long list of cases cited by defendant to sustain its proposition that the demurrer to the evidence should have been sustained on the ground that while the driver’s negligence is not imputable to plaintiff, yet the plaintiff was guilty of neglig’ence in permitting the driver to go upon the track in the face of obvious danger. Without reviewing each of these cases it must suffice to say that each of them contains some element of express sanction by the injured party of the driver’s negligent conduct or some circumstance showing the plaintiff was in a position to see or know the danger to himself and made no effort to protect himself. In almost every one of them the plaintiff was driving in an open vehicle with the driver in broad daylight and in nearly all of them the accident occurred at steam railroad- crossings, known to the plaintiff to be notoriously dangerous. In no one of them are the facts such as appear in this case. Ur. Sluder was riding in a close carriage on a dark winter night. There was no.evidence that the driver was a negligent or reckless driver, and that such a fact was known to Ur. Sluder. On the contrary, the evidence was that the driver was proceeding in a slow trot until he was about to cross Boyle avenue when he checked his team and the first knowledge Ur. Sluder had that they had reached the railroad crossing was the click of the tires on the rails and then looking through the carriage window to the north he discovered a car rapidly bearing down on his carriage and not over fifty feet distant. Almost instantly it struck the carriage and inflicted his injuries. To sa.y that he was guilty of co-operating negligence in sanctioning the want of care of the driver, if considering the darkness of the night, the failure of the servants of the company to sound the gong or ring the bell and the very indifferent light on the car, he was — 143 — negligent, would be to disregard all tbe reasons upon which the rule that the negligence of the driver is not to be imputed to the passenger is based. The facts of this case do not bring it within the reasoning of any of the cases which are cited as excéptions to the rule itself. Plaintiff was not outside with the driver where he could see and advise the driver as to the crossing. He was not situated so that he could have jumped out of the carriage after discovering his peril on the approach of the car. Prom the inside of the close carriage he could not even have communicated’ with the driver and directed him to stop or to rush his team after he saw the car or by the exercise of ordinary care under the conditions then confronting him could have seen it in time to have averted his injury. [Railroad v. Boyts. (Ind.), 45 N. E. 812; Bricknell v. Railroad, 120 N. Y. 290.] We find no evidence of negligence on the part of the plaintiff which would have justified an instruction driving him to a nonsuit. As to the instruction 8 it was dealing with one question, to-wit, whether the negligence of the driver was imputable to plaintiff, and it was not erroneous, nor was there any error in refusing defendant’s instructions which made plaintiff responsible for the driver’s negligence. There was no evidence even tending to show any contributory negligence on the part of the plaintiff and hence it was not error to decline to tender that issue to the jury, in any other way than to advise them he was not to be charged with any negligence of the driver in view of the facts developed on the trial. [Railroad v. Markens, 88 Ga. 62.] III. The point is also made that the court erred in. permitting plaintiff to testify to his earnings for the corresponding months of the previous year. The evidence on this point is as follows: “Q. What-were you earning at that time, Doctor ? A. I was earning for — 144 — the month of December, I think, about $2,000 to the month. For the months corresponding of the previous year to the time I was disabled, I earned $3,500. ’ ’ To this counsel for defendant objected. “The Court: "Wait a minute, Doctor. You have answered the question?” Ans. “There is no way except by comparing with previous times. ” “ Question. Was that an average month ? ’ ’ Objection. No ground stated. “The Court: He can answer.” Exception saved. “Ans. That was the best month of the year. December, January and February always are.” It will be observed no objection was made when the question which elicited the answer was asked. No motion was made to strike it out. The only exception saved was to the question, “was that an average month?” The evidence had previously shown that the Doctor was incapacitated to practice his profession eleven and one-half weeks, and wehave heardno reason stated why it was not competent for the physican himself to testify what his actual monthly practice averaged him. It was not guess work, but actual knowledge to which he was testifying. It was not remote, but the value of his profession to him for the immediate month during which he was disabled and we agree with him that the best evidence was the actual earnings of the month in which he was injured. IY. As to his testimony as to the rate of speed at which the car was running he was competent to testify to what he saw, not as an expert. His judgment may under the circumstances have been of little weight, but the objection to it went to its weight and not its competency. At all events, in view of the actual physical facts not controverted by defendant, its admission is no ground for a reversal of the judgment. He had testified he was familiar with the speed of trains running twenty or twenty-five miles an hour and that in his judgment it was running about that fast. We have considered all the propositions advanced — 145 — for a reversal of the judgment and in onr opinion there was no reversible error committed on the trial, and the judgment is affirmed. Brace, G. J., Burgess, Valliant, Fox and Lamm, JJ., concur; Marshall, J., dissents in a separate opinion. SEPARATE OPINION.