Apitz v. Missouri Pacific Ry. Co. , 17 Mo. App. 419 ( 1885 )

Opinion by

Hall, J.

I.

The objection to the introduction of the “book” offered in evidence was properly overruled.

The petition in this case was sufficient. This' action 'originated before a justice of the peace, in whose court no formal pleadings were necessary. It was only necessary for the petition to contain “a statement of the facts ■constituting the cause of action upon which the suit is founded.” — Section 2851 of Revised Statutes.

In the case of the City of Kansas v. Johnson (78 Mo. 665), instituted before a justice of the peace by plaintiff for the recovery of a merchant tax for the year 1878, due from defendant, the petition contained the allegations £ ‘ that the said city, by its mayor and common council duly assessed and levied on the wares and merchandise of said defendant, a merchant’s license tax for the year 1878, of $224. * *” These allegations were held sufficient to •authorize the introduction in evidence of the ordinance of said city levying the said tax. In that case Judge Norton, delivering the opinion of the court, says: “It will be observed that this suit was commenced before a justice of the peace, and in such cases the statement is sufficient if it advises the defendant of the nature of the demand against him. ’ ’ But in this case the ordinances of the city of Moberly have been sufficiently pleaded, according to the strict and technical rule of pleading. In pleading an ordinance it is not necessary to set out its title, the date of its passage or a copy of it, as contended for by defendant. In pleading an ordinance it is only necessary to set out its substance, and this has been done in this case. The authorities cited by defendant to sustain its position on this point do not sustain that position. In the case of The State of Missouri ex rel. v. Odle et al. (42 Mo. 214), the court say: “There is no doubt that where the party asserts a right founded upon such ordinances, the pleading must set them forth in whole or in substa/nceJ

In Mooney v. Kennett (10 Mo. 555), the other case cited by defendant, the court says : “ The courts of the state do not take judicial notice of the ordinances of any town or city. The defendant must set forth his justification in his answer. If he relies upon the ordinances of the city, he should set out so much of them as may be necessary for his defence that the plaintiff may know on what he relies. It is obvious that the 8th section of article 7 of the practice act does not affect the matter, as it relates only to the private acts of the General Assembly.” So far from sustaining the position contended for by defendant, these authorities, just quoted from, fully sustain the opinion just expressed by us, that in pleading an ordinance it is only necessary to set out the substance of the ordinance.

The ordinances in this case, then, are well pleaded, and this case originating before a justice of the peace, the averments of the petition, “that there was in force an ordinance,” etc., and “that on the aforesaid day there was also an ordinance of said city of Moberly in forcef etc., sufficiently allege the pow;er of the city of Moberly to enact the said ordinances. From the averment that the ordinances were in force, the inference is readily and reasonably drawn that they were enacted by authority competent to enact them; and this being so the petition was a sufficient statement of the cause of action upon which the suit is founded.

But if the act, incorporating the city of Moberly, is a private and not a public law, the courts of. this state cannot take judicial notice of its provisions, unless it be pleaded by its title, with reference to the date of its passage. — Sect. 3549 of Revised Statutes; State of Missouri ex rel. v. Odle et al., 42 Mo. 214.

The “ book” in evidence was admissible without attestation. — Sect. 2287 of Revised Statutes; City of St. Louis v. David Foster, 53 Mo. 513.

II.

The charter of the city of Moberly is a private and not a public act. The act of the General Assembly, incorporating said city, contains no provision declaring said act to be a public act. And we are constrained to follow the case of The town of Butler v. Robinson (74 Mo. 192-194), and to hold that the said act is a private act, of which the courts of this state cannot take judicial notice . and which must be both pleaded and proved, unless it be pleaded by its title, with reference to the date of its passage. In this case the act is not so pleaded, and therefore it was necessary to prove it. This was not done. So there was no evidence of the power of the city of Moberly to pass the ordinances in evidence. For this reason the judgment of the circuit court will be reversed and the cause remanded.

III.

The defendant complains here of the action of the trial court in giving plaintiff ’ s instructions, and in refusing its demurrer to the evidence, because, as it contends, there was no evidence that the alleged excessive rate of speed of its train and its failure to ring the bell were the cause of the injury to plaintiff’s cow, and that there was nothing to show; or from which it could be inferred, that she would not have been struck even if the train had been running six miles per hour and if the bell had been ringing; and to sustain its complaint the defendant cites Braxton v. B. R. Qo. (77 Mo. 455); Wallace v. R. R. Qo. (74 Mo. 594). In this case there is something more than the mere negligent action of the defendant and injury to the plaintiff’s cow. In this case it does not alone appear that the train was running at an improper rate of speed and that the bell was not being rung, and that the cow was killed, seen by no one, under circumstances known by no one. But it does appear, in this case, that the train of defendant was running at a rate of speed from eight to ten miles per hour, and that the bell was not being rung, and that the cow of plaintiff, when the train got near to her, started from behind the car on an adjacent track where she had been standing, and in attempting to cross the track on which the train was running was struck and killed. In other words, the whole circumstances connected with the accident appear in evidence, and we think that, had there been the necessary evidence of the power of the city of Moberly to pass the ordinances in question, the court properly submitted to the jury the question, whether or not the ' 'negligent violation of said ordinances caused the injury complained of to plaintiff’s cow. — Turner v. R. R. Co., 78 Mo. 580, 581.

IV.

The defendant further complains here of the refusal of the trial court 'to give the 2nd instruction asked by it. To sustain its position, that it was negligence on the part of the plaintiff, with a knowledge of the dangerous surroundings and character of the switch yards in evidence, to turn' his cow out and to let her run at large, the defendant has cited a long list of authorities, all of other states, except only the case of Wallace v. R. R. Co. (74 Mo. 594-597), which case is not in point. Whatever may be the law elsewhere, the law in this state has been settled ever since the case of Gorman v. R. R. Co. (26 Mo. 444), that it is not negligence on the part of the owners of stock to let'them run at large in the vicinity of railroad tracks; that there is no duty on the part of the owners of stock'in' this state to keep them enclosed. And this has been held, not because the railroad tracks 'in the case above named, and in those cases in which ' that case has been followed were not dangerous, for in 'all these cases it was urged that the railroad tracks were dangerous as the ground of negligence on the part of the owners of the stock, and the court in passing upon those cases treated the tracks as places of danger. But the proposition was plainly and clearly stated that it was not negligence on the part'of owners of stoek to let them run out in the vicinity of a railroad track. This proposition was boldly stated, without any qualifications. The fact that the track was a single track was not considered. ■To the fact that the track was not very near to the premises of the'owner of the stock, no weight was given.

We can see no difference in principle between this case and the cases of Gorman v. R. R. Co. (supra); Tarwater v. R. R. Co. (42 Mo. 196); R. R. Co. v. Kenney (41 Mo. 274); and Bradford v. Floyd, Sup. Court of Mo., not yet reported. In Turner v. R. R. Co. (78 Mo. 580), it is decided that “it is well settled in this state that the owner of cattle is guilty of no negligence in permitting Ms stock to run at large, whether in the vicinity of a railroad track or remote from one.” That is, that there is-no duty resting upon the owner of stock to keep them enclosed, and, consequently, in turning the stock out the-owner is not negligent. As in the case last cited, the distance of the railroad track from the premises of the-owner of the stock is held to be unimportant, so in this case we cannot see any importance in the great number of the railroad tracks. It is not. the degree of danger-possessed by the railroad tracks that makes the act of the owner of the stock negligence. If the act of the-owner of the stock be not in violation of any duty imposed upon him, his act can not be negligent. As the act of the plaintiff in this case violated no duty imposed ' upon him, we can not see how Ms act can be negligent.

The judgment of the circuit court is reversed and the-cause remanded.

All concur.