Driscoll v. Nelson

NORTONI, J. This is a suit for damages accrued to plaintiff through personal injuries received on account of defendant’s negligence. Plaintiff recovered and defendant prosecutes the appeal. [304] It appears that plaintiff was injured while crossing a public street of the city of St. Louis, in that defendant’s servant negligently drove a wagon upon her. The suit proceeds under an ordinance of the city purporting to regulate the use of the streets in such circumstances. Section 1558, of article 3, of the Revised Code of St. Louis for 1907 is set forth in the petition and re'lied upon throughout the case. The first point made for a reversal of the judgment' relates to the validity of this section of the ordinance. It is argued the ordinance is wholly invalid because it offends against section. 13, article 3 of the Charter of the city of St. Louis, in that it treats with more than one .subject and that subject is not clearly expressed in its title. It is unnecessary to examine and give judgment upon this subject-matter, for it appears the ordinance antedates the Charter by many years. It is true section 13, article 3 of the Charter provides “No bill . . . shall contain r ere than one subject, which shall be clearly expressed in its title.” But this provision of the Charter is prospective in character and not retroactive. [See River Rendering Co. v. Behr, 7 Mo. App. 345, 351.] The Charter of the city of St. Louis was adopted at an election held for that purpose on August 22, 1876, and it became effective sixty days thereafter, or on October 22, of the same year. [See State ex rel. Beach v. Finn, 4 Mo. App. 347.] It appears that the ordinance involved here antedates by many years the adoption of the Charter, and it has obtained ever since, being.carried forward into the various revisions. Section 1558, according to the revisior of 1907, which is relied upon, is to be found among the ordinances of the city in the same language and from as early as 1871. [See Revised Ordinances, city of St. Louis, Pattison, section 1, article 3.] This being true, it is obvious the point made against its validity in that it offends against the Charter adopted several years after its passage is without merit, for [305] the Charter provision relied upon relates to hills and ordinances introduced and acted upon subsequent to the adoption of the Charter. What has been said disposes of defendant’s argument touching the sufficiency of the instructions as well. It is argued the court should have directed a verdict for defendant because of plaintiff’s contributory negligence, but we are not so persuaded. It appears that the plaintiff, a young girl, was going to her work about 7:45 in the morning. She was walking north on the east side of Fifteenth street, and, at the crossing for pedestrians at Chestnut street, she says she looked both east and west for wagons which might interfere with her passage across. She observed one going to the eastward, and, in company with her companion, walked into the street, but tarried a moment about the center for the wagon going west to pass. The evidence is that, at this time, defendant’s horse and wagon came from the westward at a high rate of speed. The witness Murphy says the horse was on a gallop at the time and the police officer says the wagon went around several wagons and that it was going at pretty high speed. While plaintiff for the moment had her eye on the wagon going to the westward, with a view of keeping free from injury by it, she was run upon by defendant’s horse and wagon coming from the westward. It is entirely clear that on these facts the question of her negligence was one for the jury. The evidence tends to prove that the dangerous situation was suddenly revealed as the approaching horse and wagon came on a gallop from the westward and darted around other wagons near by. The law, in its exactions with respect to the exercise of ordinary care for one’s safety, is neither unreasonable nor unjust, but makes some allowance for imprudent conduct under stress of circumstances induced by another’s negligence, which [306] tend to excite the judgment or distract attention. Even if plaintiff did not use that degree of care which an ordinarily prudent person would exercise when no sudden danger revealed itself, the issue with respect to. that matter was one for the jury. Indeed, as has been heretofore said by this court, that in cases of this kind —collisions upon -the highway — where both parties have a right to be, there is generally a fair question for the jury, both on the question of the negligence of defendant and the contributory negligence of plaintiff. [See Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155; Meyer v. Lewis, 43 Mo. App. 417.] It is clear enough plaintiff’s conduct was a question for the jury in this case. The judgment should be affirmed. It is so ordered. Reynolds, P. J., and Allen, J., concur.