author: WILLIAMS, C. PER CURIAM.

text:
    JOHN POWERS, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division Two,
    December 23, 1914.
    1. SUPREME COURT: Appellate Jurisdiction: Amending Petition: Amount Reduced after Nonsuit and Before Appeal. Where a plaintiff who asked $10,000 damages took a nonsuit with leave, and after his motion to set aside the nonsuit and grant him a new trial was overruled the trial court allowed him, before taking his appeal, to amend his petition by reducing his prayer for damages from $10,000 to $4500, the Supreme Court, and not the Court of Appeals, has jurisdiction of his appeal.
    2. MASTER AND SERVANT: “Operating Railroad:” Fellow-Servant Act: Car Repairer. A car repairer while working at his task in the repair yards of a railroad company is “engaged in. the work of operating such railroad” within Sec. 5434, R. S. 1909, and is entitled to damages from the company for injuries caused by the negligence of a fellow-servant..
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    Reversed and Remanded.

      A. jR. & Howard Taylor for appellant.
    (1) Tbe action of tbe St. Louis Court of Appeals transferring tbis cause to this court was erroneous and unauthorized by law. Tbe reduction of plaintiff’s claim from $10,000 to $4500, before the appeal was taken, left the amount in controversy within the jurisdiction of the St. Louis Court of Appeals at the time the appeal was taken. State ex rel. v. Broaddus, 212 Mo. 689. (2) The case of Schwyhart v. Barrett, 223 Mo. 501, on which the St. Louis Court of Appeals grounded its decision transferring this case to this court, was not an authority for such action. (3) Assuming that the transfer of the cause was correct, and that this court is possessed of jurisdiction, as we are willing to hope, then the action of the trial court in taking the case from the jury by a peremptory instruction was error. (4) The appellant was engaged at the time of his injury in the work of operating respondent’s railroad, as was the co-servant Krietmeier, within the language and intent of Sec. 5434, R. S. 1909, then in force. Callahan v. Railroad, 170 Mo. 495, 194 U. S. 628; Sams v. Railroad, 174 Mo. 99; Hawkins v. Smith, 242 Mo. 696; Railroad v. Melton, 218 U. S. 48; Orendorf v. Railroad, 116 Mo. App. 348; Houston v. Railroad, 129 Mo. App. 583; Turner v. Railroad, 132 Mo. App. 43; Pratt v. Railroad, 139 Mo. App. 508; Prash v. Railroad, 151 Mo. App. 413. (5) There was no evidence in the case on which the court could declare the appellant negligent as a matter of law. Prash v. Railroad, 151 Mo. App. 413.

      James F. Green for respondent.
    (1) The cause was properly transferred to this, court, as the amount named in the petition on which the case was tried was in excess of $7500. Schwyhart v. Barrett, 223 Mo. 501; Hennessy v. Brewing Co., 145 Mo. 115; Casey v. Transit Co., 116 Mo. App. 270; Union v. Mfg. Co., 251 Mo. 450. (2) Work in a shed or machine shop repairing a car is not “operating a railroad” within the meaning of Sec. 5434, R. S. 1909. Callahan v. Railroad, 170 Mo. 496; Overton v. Railroad, 111 Mo. App. 613; Sams v. Railroad, 174 Mo. 66; Williams v. Railroad, 106 Mo. App.'63; Stubbs v. Railroad, 85 Mo. App. 196; Schneider v. Railroad, 117 Mo. App. 129; Vilter Mfg. Co. v. Kent, 105 S. W. 525; Moit v. Railroad, 82 C. C. A. 430; Holtz v. Railroad, 72 N. W. 806; Perry v. Railroad, 41 N. W. 289. (3) There was no negligence proved in the case. Plaintiff’s injury was the result of mere accident, for which there is no liability. Wendall v. Railroad, 100 Mo. App. 556; Saxton v. Railroad, 92 Mo. App. 494; Henry v. Railroad, 113 Mo. 525; Sawyer v. Railroad, 37 Mo. 262.
   WILLIAMS, C.

This is a suit to recover damages for personal injuries received by plaintiff while in the employ of the defendant company. Trial was had in the circuit court of the city of St. Louis, and at the close of plaintiff’s evidence the court sustained defendant’s demurrer to the evidence and permitted the plaintiff to take a nonsuit with leave to move to set the same aside. Thereafter, and within proper time, plaintiff filed a motion to set aside the nonsuit and to grant him a new trial in the cause, which motion was by the court overruled. Several days thereafter, but during the same term of court at which plaintiff’s motion for a new trial was overruled, the court, by order of record, permitted plaintiff to amend his petition by interlineation by changing the prayer for damages from $10,000 to $4500, and thereafter per-, mitted plaintiff to take an appeal to the St. Louis Court of Appeals. After the case reached the St. Louis Court of Appeals, that court, upon respondent’s motion, transferred the cause to the Supreme Court on the ground that the amount in controversy, at the time judgment was rendered in favor of defendant, was' beyond the jurisdiction of the Court of Appeals:

Plaintiff’s evidence tends to establish the following facts: On the day the injury occurred, plaintiff, together with a fellow workman, Krietemeyer, was in the employ of the defendant company doing repair work on cars located in defendant’s repair yards near Compton avenue in the city of St. Louis. Many tracks were located in this repair yard and a portion of same was covered by a,long rough shed, open on the sides but covered by a roof. The machine shops of defendant company were located some 300 feet distant from the repair yard. Oars needing repair were shoved into this repair yard over the railway tracks therein located. The heavy repair work was done at the yards near Compton avenue, and the light repair work at the repair yards at Twenty-first street. At the time of the injury, plaintiff and his co-worker were engaged in repairing the coupling on one of the cars located in this repair shop. The trucks had been removed from under this car and the car was supported by barrels or trusses. The trucks were located on the track, ahead of the car, and after the repair work was finished, the trucks were to be rolled back under the oar so that the car could be taken out and placed in a train. In repairing the car in question, it became- necessary to drive the brake-pin, which had been bent, out of the coupling. In doing this plaintiff held a portion of the coupling in such position that his coemployee, Krietemeyer, could strike the brake-pin with a maul. Krietemeyer, without looking for any obstructions that the maul might encounter in being-swung, made a swing with the maul, and in so doing the maul engaged the brake guide above the coupling, causing the maul to glance out of its course and strike plaintiff’s left hand, mashing and breaking the bones in the third finger thereof. Afterwards blood poisoning developed in the injured finger and it was necessary to amputate the finger at the middle joint. Plaintiff was laid up nearly a year with his injury and it became necessary to cut open bis band to drain tbe pus. As a result of tbe injury, be was rendered unable to follow bis former occupation as a car repairer and bad been rendered unable to secure employment of any kind on account of bis disability.

Appellant makes tbe following contentions: First, that tbe St. Louis Court of Appeals erroneously transferred tbis case to tbe Supreme Court; second, that at tbe time of bis injury, appellant was engaged in tbe work of operating respondent’s railroad,, as was bis co-servant, Krietemeyer, witbin tbe language and intent of section 5434, Revised Statutes 1909, and that therefore tbe trial court erred in overruling bis motion to set aside tbe nonsuit and for new trial.

I. After final judgment, but before tbe appeal was allowed, tbe circuit court permitted plaintiff to strike out tbe words “ten thousand” in tbe prayer of tbe petition and to interline in lieu thereof tbe words “forty five hundred.” At tbe time tbe appeal was taken the jurisdictional limit of tbe Court of Appeals was $4500. Appellant contends that by thus changing bis petition, after final judgment, tbe amount in dispute, for tbe purposes of tbis appeal, was placed witbin tbe jurisdictional limit of tbe Court of Appeals and that hence tbe Court of Appeals later erroneously certified tbe case here. We are unable to agree with tbis contention. In determining. tbe amount in dispute for tbe purpose of appellate jurisdiction where tbe plaintiff is cast in bis suit and appeals, as in tbe present instance, tbe amount claimed in tbe petition is generally taken as tbe amount in dispute. [Schwyhart v. Barrett, 223 Mo. 497, l. c. 501.]

When a money judgment is rendered tbe amount of tbe judgment controls, if tbe appeal is taken by tbe judgment debtor, and tbe difference between tbe amount claimed and the amount of the judgment if the appeal is taken by the judgment creditor. [Foundry & Manufacturing Company v. Moulder’s Union, 251 Mo. 448 and cases therein cited.]

In the case of Schwyhart v. Barrett, supra, where a money judgment was rendered and the appeal was taken by the judgment debtor, it was held that “the amount in dispute is to be determined by the amount due at'the date of the judgment from which the appeal is taken.” Applying this rule to the present ease, the amount due, or claimed to be due, at the date of the judgment from which the appeal was taken, was, as then shown by the petition, $10,000, and therefore sufficient to bring the case within the jurisdiction of this court.

II. Was plaintiff, at the time of receiving the injury, engaged in do-in8’ such work for the defendant company as to bring him within the aid of section 5434, Revised Statutes 1909, commonly known as the Railroad Fellow-Servant Act? In other words, was he ‘ ‘ engaged in the work of operating such railroad,” as provided by said statute? This is the main question presented by this appeal. That Krietemeyer was the fellow-servant of plaintiff is not disputed. There was also sufficient evidence to pass to the jury for determination the question as to whether the act of Krietemeyer which resulted in the plaintiff’s injury amounted to negligence.

In determining whether plaintiff’s work was within the protection of the above statute, little aid is received from a review of the decisions of the courts of other States. This is due in a great measure no doubt to differences existing in the respective statutes. One line of authorities holds that the work must be such as carries with it the peculiar hazard of railroad operation, incident to the movement of trains. Another line of authorities holds to a more liberal interpretation. Whether the first line of authorities may or may not have been somewhat influenced by the belief that such limited construction was necessary in order to allow the act to pass certain constitutional barriers cannot be determined with accuracy, yet a review of those authorities shows that the courts so holding had such danger in mind.

That such limited construction is not necessary in order to allow the statute to clear the Federal Constitutional barriers was clearly settled by the Supreme Court of the United States in the case of Louisville & Nashville Railroad Company v. Melton, 218 U. S. 36.

A sufficiently comprehensive review and discussion of the Employer’s Liability Statutes and decisions of other States, together with a discussion of the proper construction to be placed upon the Missouri statute will be found in the case of Callahan v. Merchants’ Bridge Terminal Railroad Company, 170 Mo. 473, and therefore further discussion of the same would serve no useful purpose in the present case. In that case the Court in Banc in construing the Missouri statute held that a member of a section gang stationed underneath a railroad' bridge to warn passers-by of the danger from, falling ties that were being removed and discarded by the section men at work in repairing the bridge, was ‘ ‘ engaged in the work of operating such railroad” within the meaning of the Missouri statute, and that the railroad company was liable in damages for his injuries sustained by reason of the negligence of his co-employees. In discussing the statute the court said:

“Under the language of our statute it is necessary for the injured employee to show that he was injured ‘while engaged in the work of operating such railroad. ’ Construed either by its own terms or in the light of the cases cited from other jurisdictions, it results in holding that the right to recover is not limited to cases where the injury is inflicted by reason of the negligence of a fellow-servant while actually moving a train or engine, but that the law embraces all cases where the injury is inflicted upon an employee while engaged in the work of operating a railroad, by reason of the negligence of any fellow-servant who is likewise engaged in the work of operating a railroad, and that the term ‘operating such railroad’ includes all work that is directly necessary for running trains over a track, and that it includes section hands who are engaged in working upon, repairing or putting in shape the track, roadbed, bridges, etc., over which the trains must run.”

The construction placed upon the statute by the Callahan case has remained undisturbed for many years and has been many times followed by the different courts of appeal. No reason is now advanced nor does any occur to us calling for a reconsideration of the conclusion therein reached.

Applying the logic and analogy of that case to the present we are driven, irresistibly, to the conclusion that plaintiff, at the time of receiving his injury, was “engaged in the work of operating such railroad” and clearly within the scope of said statute. The work of repairing the cars in the repair yard of the defendant company was as closely connected with and as necessary for the operation of trains as was the work of track repair in the Callahan case.

It therefore follows that the judgment should be-reversed and the cause remanded for a new trial. It is so ordered.

Roy, Gconcurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown,, J., concur; Paris, J., not sitting.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    CASIMIR J. WELCH v. HUGH J. McGOWAN, CHARLES E. SMALL and RANDAL MORGAN, Appellants.
    Division Two,
    December 23, 1914.
    1. NEGLIGENCE: Obstruction in Public Street:. Knowledge. Where a plaintiff, driving in a buggy, in broad daylight, along a public street, with actual knowledge of the existence of loose gas pipes and other temporary obstructions therein, is injured by the wheel of his buggy coming in contact therewith, he cannot recover for his resulting injuries, unless he exercised ordinary care to observe and avoid such obstructions. The rule that in driving along a public highway he had the right to assume (without looking) that said highway was free from obstructions, has no application where he had actual knowledge of such obstructions. Such actual knowledge required him to keep a diligent lookout for them.
    2. -: -: -: Protruding Gas Pipe: Failure to Look: Contributory Negligence. And though the defendant were negligent in permitting the end of a large gas pipe to protrude into that part of the street left open to public travel, that did not relieve the driver of a buggy along the part left open from the duty of keeping a lookout for temporary obstructions after he observed that the street was torn up for the purpose of laying gas pipes; and if, with such knowledge, he did not look out for such protruding end, and fails to show that he could not have driven around it if he had looked and seen, his injury must be held to be the direct result of his own negligence.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Reversed.

      Gage, Ladd & Small for appellants.
    (1) The demurrer to the evidence ought to have been sustained. Phelan v. Paving Co., 227 Mo. 666; Hesselbach v. St. Louis, 179 Mo. 505; Craine v. Met. St. Ry., 246 Mo. 393; Nessler v. Wrecking Co., 156 App. Div. (N. V.) 348; Johnson v. New York, 208 N. Y. 77; Nolan v. King, 97 N. Y. 565; Westfall v. Water Commissioners, 93 Mich. 210; Lockport v. Licht, 221 111. 35; District of Columbia v. Monlton, 182 U. S. 576; Dart v. Bagley, 110 Mo. 42; Sedalia ex rel. v. Smith, 206 Mo. 346; Glaser v. Rothschild, 221 Mo. 180; Kansas City ex rel. v. O’Connell, .99 Mo. 357; Vogelgesang v. St. Louis, 139 Mo. 127; Fogg v. Nahant, 98 Mass. 578; McFarlane v. Sullivan, 99 Wis. 361; Johnson v. Superior, 103 Wis. 66; Ritger v. Milwaukee, 99 Wis. 190; Long v. Moon, 107 Mo. 334; Nugent v. Milling Co.,, 131 Mo. 241; Payne v. Railroad, 136 Mo. 562; Sanguinette v. Railroad, 196 Mo. 466; Weltmer v. Bishop, 171 Mo. 110; Avery v. Fitzgerald, 94 Mo. 207; Flynn v. Wacker, 151 Mo. 545; Champagne v. Harney, 189 Mo. 709; State v. King, 203 Mo. 560; Meier v. Proctor & Gamble Co., 81 Mo. App. 410; Stafford v. Adams, 113 Mo. App. 717; Pickens v. Railroad, 125 Mo. App. 669; Schanb v. Railroad, 133 Mo. App. 444; Brockman Com. Co. v. Aaron, 145 Mo. App. 307; Graefe v. Transit. Co., 224 Mo. 232; Trigg v. Land Co., 187 Mo. 22; Coin, v. Lounge Co., 222 Mo. 508; Oates v. Met. St. Ry., 168 Mo. 535; Cohn v. Kansas City, Í08 Mo. 387; McFarlane v. Elevated Ry. Co., 194 Mass. 183; Morgan v. Lewiston, 91 Me. 566; McCloskey. v. Moies, 19 R. I. ' 297. (2) The demurrer to the third amended petition ought to have been sustained. Morgan v. Lewiston, 91 Me. 566; McCloskey v. Moies, 19 R. I. 297; Kansas City ex rel. v. O’Connell, 99 Mo. 357.

      Walsh, Aylward & Lee and E. B. Morrison for respondent.
    (1) Appellants were negligent in permitting the pipe in question to project into the traveled way. Primarily the public are entitled to the use of the entire street. Kossman v. St. Louis, 153 Mo. 59; Schoop v. St. Louis, 117 Mo. 131. And one who obstructs or enoroanhes upon it has the burden of showing the obstruction to have been reasonably necessary and with-the least danger to public travel. Senhenn v. Evansville, Í40 Ind. 678; Jackson v. Robinson, 26 Wis. 642. The encroachment must be reasonable in extent and in time, and must be non-negligent. Gerdes v. Iron & Foundry Co., 124 Mo. 354; Dougherty v. St. Louis, 251 Mo. 525; Phelan v. Paving Co., 227 Mo. 707; Hesselbach v. St. Louis, 179 Mo. 522; Dillon on Municipal Corporations (5 Ed.), sec. 1170; Fugate v. Somerset, 97 Ky. 48; Pottier v. Gas Co., 183 Pa. St. 575; P'ennock v. Douglas County, 39 Neb. 305; Chicago v. Brophy, 79 111. 279; Frazier v. Borough, 172 Pa. 403, 51 Am. St. 739. (2) The evidence shows that plaintiff had not lost control of his horse. Even if he had lost control this would not bar his recovery. Hull v. Kansas City, 54 Mo. 598; Winship v. Enfield, 42 N. H. 197; Vogelgesang v. St. Louis, 139 Mo. 127; Ring v. Cohoes, 77 N. Y. 83; City of Joliet v. Shufeldt, 144 111. 403; Opdycke v. Railroad, 29 L. R. A. (N. S.) 71; Elliott on Roads & Streets (3 Ed.), sec. 793; Railroad v. Stone, 54 Kan. 83; Weisner v. Dillon, 29 Mont. 122; Crawfordsville v. Smith, 79 Ind. 308; Manderschied v. Dubuque, 25 Iowa, 108; Martin v. Algona, 40 Iowa, 390; Turn. Co. v. Bateman, 68 Md. 389; Dillon v. Raleigh, 124 N. C. 184; Gray v. Water Power Co., 27 Wash. 713; Baldwin v. Turnpike Co., 40 Conn. 238; Augusta v. Hudson, 94 Ga. 135; Janes v. Tampa, 52 Fla. 292, 120 Am. St. 203; McLemore v. City of West End, 159 Ala. 235; Emporia v. White, 74 Kan. 864; McDowell v. Preston, 104 Minn. 263, 18 L. R. A. (N. S.) 190. Even if he lost control it was only temporary. Johnson v. Marquette, 154 Mich. 50. (3) Plaintiff was not negligent in failing to discover the ob-’ struction. Coffey v. Carthage, 186 Mo. 573; Alexander v. St. Joseph, 170 Mo: App. 376; Barr v. Kansas City, 105 Mo. 558; Weisenberg v. Appleton, 26 Wis. 59, 7 Am. Rep. 39; Kendall v. Albia, 73 Iowa, 248; Webb v. Heintz, 97 Pac. (Ore.) 753; Valparaiso v. Schwerdt, 40 Ind. App. 608; Dale v. Syracuse, 24 N. ;Y. Supp. 968, 71 Hun,. 449; Johnson v. Fargo, 15 N. D. 524. (4) The projecting pipe was the cause of plaintiff’s injury. (5) Plaintiff did not haye knowledge of the projecting obstruction and did not assume the risk thereof. Knight v. Kansas City, 138 Mo. App. 153; G-raney v. St. Louis, 141 Mo. 185; Loewer v. Sedalia, 77 Mo. 431; Chilton v. 'St. Joseph, 143 Mo. 192; Devlin v. St. Louis, 252 Mo. 207; Loftis v. Kansas City, 156 Mo. App. 683; Tackstein v. Bimmerle, 150 Mo. App. 491; Taylor v. Spring-field, 61 Mo. App. 266; Keitel v. Cable Ry., 28 Mo. App. 662; Powers v. Ins. Co., 91 Mo. App. 65; Phelan v. Paving Co., 227 Mo. 666; Craine v. Railroad, 246 Mo. 393; Cohn v. Kansas City, 108'Mo. 387; McFarlane v. Railroad, 194 Mass. 183.
   BROWN, J.

Action for personal injuries in which plaintiff recovered a judgment for $17,500, and defendants appeal. Kansas City was made a defendant in this action, but, upon the coming- in of the testimony, the court sustained a demurrer to the evidence as to said defendant city, whereupon the cause proceeded to judgment against the other defendants above named.

Plaintiff charges that defendants placed a gas pipe on the surface of 13th street in Kansas City, Missouri, in such a negligent manner that it was a dangerous obstruction to said street, and that while plaintiff was driving his horse and buggy eastwardly on said street on April 23,1907, the wheels of his buggy struck said gas pipe in such manner as to cause plaintiff to be thrown out of his buggy and into a deep ditch, from which fall he received severe and permanent injuries.

The defense is contributory negligence and assumption of risk.

To arrive at a more complete understanding of the manner in which plaintiff received his injuries, we will explain that 10th street and 13th street in Kansas City, Missouri, run east and west, and 10th street lies north of 13th street. Walnut street in said city runs north and south. The first north-and-south street lying west of Walnut is Main street, and the second parallel street west of Walnut is Baltimore avenue. The block between Walnut and Main streets is divided north and south by an alley.

At the time plaintiff received his injuries defendants had dug a ditch and were preparing to lay a large gas pipe along 13th street from Walnut to Baltimore avenue. Defendants had deposited gas pipes twelve feet long and eighteen inches in diameter along the north side of this ditch from Walnut street to the alley which divides the block lying between Walnut and Main.

There is a slight conflict in the evidence as to whether these gas pipes were lying all along the north side of the ditch from Walnut street to Baltimore avenue. Plaintiff says that he does not remember seeing any gas pipes except between Walnut street and the ■first alley west thereof. Pie did, however, remember observing (before his injury) that 13th street was “cut open” with a ditch all the way from Baltimore avenue to Walnut street.

Thirteenth street has a width of about thirty-five feet from curb to curb. The ditch was dug by defendants a little south of the center of the street, and a roadway for vehicles was kept open along the north side of the ditch. There is some conflict as to the width of this roadway, but practically all the witnesses state that there was room enough between the north curb of the street and the pipes placed beside the ditch aforesaid for two wagons to pass each other by careful driving.

Plaintiff, whose age was thirty-seven, started to drive his “black filly” from 10th street to a messenger office kept by him at 13th and Walnut streets. His vehicle was a low buggy, and a young lady accompanied him on the drive. Plaintiff further testified that he did not usually drive along 13th street as he could reach his office at 13th and Walnut by another street, and, therefore, did not know that 13th street was tom up until he drove onto it. He also testified that he drove south from 10th street down Baltimore avenue to 13th street, and thence eastwardly along the north side of 13th street to the alley between Main and Walnut, where the right wheel of his buggy struck a gas pipe left in the roadway by defendants, causing him to be thrown forward and southward into the ditch dug by defendants, whereby he received very /severe and permanent injuries.

Plaintiff and his witnesses also testify that defendants had not dug the ditch across the first alley west of Walnut street, but had excavated the ditch up to the east side of said alley and constructed a barricade from the south curb of the street to and across the end of the ditch at said alley. The barricade is variously described as being from eighteen inches high to as high as the seat in the buggy which plaintiff was driving. Said witnesses for plaintiff further stated that the west end of the first gas pipe lying east of said barricade had been left protruding into the roadway left open for use of persons traveling along the 13th street. Some of said witnesses state that the end of said gas pipe stuck out into the roadway one foot, while others thought it protruded as much as six feet, and that it had been left in that condition a week.

The evidence of defendants’ witnesses tend to show that the end of the gas pipe did not stick out into the roadway, and that the work of digging the ditch and placing the pipes in 13th street had only been in operation four days.

Plaintiff says that as lie was crossing Main street, something like one hundred feet west of the alley, his filly threw her tail over the right check-line and thereafter she went faster. His route was down grade and his horse trotted along. Plaintiff tried to get the check-line or rein from under his filly’s tail without success. When he arrived at the barricade across the end of the ditch at the alley beforementioned, he reined his filly to the left around the barricade, but did not see the pipe in the roadway. He then leaned forward to lift the filly’s tail off of the rein, and, while in such leaning position, the right wheel of his buggy struck the gas pipe and caused him to be thrown forward and southward into the ditch. Plaintiff further testifies that he could not see the gas pipe before he struck it on account of the barricade. His evidence runs as follows:

“Q. I will get you to describe just how this matter occurred, to these gentlemen, Mr. Welch. A. Well, I drove south on Baltimore to Thirteenth, and then I turned east on Thirteenth, and I got to about the car track and the horse switched her tail and caught the line . . . She was just going kind of little out of a walk — kind of a slow trot; and when she got the line under her tail, she paced up, and I pulled on the line and made one or two efforts to get it from under her tail, and at that time I got to about the alley . . . As I looked out to look ahead I saw that barrier, and I didn’t want to hit that. After I came in the roadway there was only eight or nine feet to go through there; and I looked ahead and everything looked clear, excepting a wagon. about half way down the block. Then I reached over to lift the line from under the mare’s tail, and as I did that the wheel' hit this pipe and I went into the ditch, and the lady went right on top of me.
“Q. Where was this pipe, with reference to the asphalt and dirt and stuff there? What position was the pipe in? A. It was sticking out right in the road.
‘ ‘ Q. This pipe that stuck out in the roadway — how far, to your view, did it appear to he sticking out in the roadway there? A. Oh, two or three feet. I don’t remember just how far. I know it was sticking quite a ways out in the roadway.
“Q. How close were you to it when you first saw it? A. I never saw it until I got right on top of it and hit it. As far as that gentlemen there is to the jury (indicating).
“Q. What were you doing from the time you left Main street until you noticed this pipe in front of you? A. I was trying to get the line from under the horse’s tail.
“Q. You drove on the north side of Thirteenth street from the time you hit it at Thirteenth and Baltimore, because they were working on the south side of the street? A. They wasn’t working there. It was cut open. It was after working hours.
“Q. You say it was ‘cut open?’ Is that the reason you drove on the north side of Thirteenth street? A. Yes, sir.
‘ ‘ Q. Now, it is down hill all the way from the east line of Main street to this alley and down to Walnut street, ain’t it? A. Yes, sir. ...
“The Witness: When the buggy hit that pipe it went scooting along like it was a rail, and I went further.
“ Q. You hit the north side of the pipe and it went scooting along? A. That brought it closer to the ditch as it slid along, and when I went over I hit the hub of the buggy on the second pipe to the east. . . .
“Q. G-o ahead and finish your answer. A. (Continuing) I saw the barrier and saw how far it extended into the street, and coming around it I just turned the horse to go past, and in the meantime I was trying to get the line off of its tail.
“Q. You said that you looked ahead and couldn’t see the pipe — that you couldn’t see this pipe, that was as Mg as a buggy wheel? A. The barrier was as high as my buggy seat.
“Q. You pulled around that, so as to get rid of it? "Whether you call it a ‘pile of dirt’ or whatever you call it — you pulled around to get rid of it, and you couldn’t see the pipe for this pile of dirt, or barrier? A. Well, I didn’t see it.
“Q. Could you have seen it? A. I didn’t see it. . . . I wasn’t looking for a pipe stuck over on the roadway, where they were inviting persons to come in there.”

Plaintiff also testified that his filly was gentle; that children could drive her, but admitted that on a former trial of this cause he testified as follows :

“Q. You didn’t stop to take her tail off the line? A. No, sir. I was not worrying; she had done that a hundred times before; you see, she is a saddle mare and carries a high tail, and she was always doing that. ’ ’
Something like a dozen eyewitnesses for plaintiff stated that they saw him and his horse before and at the very time of his injury; that the horse was excited or irritated on account of getting its tail over the line. When the front wheel of the buggy hit the pipe it tipped over to the right, and the horse went on, carrying the shafts of the buggy with her.

OPINION.

I. Learned counsel for plaintiff and defendants have cited a long list of authorities to sustain their respective contentions, which authorities will be found in the prefixed notes of our official reporter. Many of the cases cited by counsel have little or no bearing upon the issues presented here, because based on facts different from those found in tMs record.

There is no dispute over the fact that plaintiff observed that 13th street was “cut open” (as he described it) with a ditch for the purpose of laying pipes therein, before he attempted to drive along said street.

The issue then arises, did the plaintiff, possessing as he did actual 'knowledge that 13th street was not in its usual state of repair, or in the condition in which streets and roads are ordinarily, exercise ordinary care to observe and avoid such obstructions as were temporarily in said street by reason of the repairs or improvements then being made therein?

There is much well-considered authority which sustains the contention of plaintiff that in driving along a public highway he had a right to assume (without looking) that said highway was free from obstructions, but that rule of law is without application here, because of plaintiff’s actual knowledge that said street was not in its usual condition — he had actual knowledge that the street was “cut open” for the purpose of burying a pipe or making some other change therein, and that part of the street was closed by a barricade.

With the actual knowledge on the part of plaintiff it was his duty to keep a diligent lookout for obstructions which might be temporarily in the street by reason of the work that was being done therein, and to anticipate noises which might frighten a team.

The gas pipe which plaintiff’s wheel struck was eighteen inches in diameter at the end nearest to plaintiff as he drove against it, yet he swears he did not see it. He declined to state that he could not have seen the pipe' in time to have driven around if he had been looking at the ground where his buggy was going —he speaks of reining his horse around the barricade which defendants had constructed partly across the street — that his horse, though a little excited, was gentle and still under control; so we are unable to see any reason why he did not observe the pipe and drive around it, thereby averting the accident and consequent severe injuries which he sustained.

If it is true that defendants were negligent in allowing one end of the gas pipe to protrude into that part of the street left open for travel, this did not relieve plaintiff of the duty of keeping a lookout for temporary obstructions after he observed that the street was tom iip-, or partially torn up; so we find that the plaintiff’s injury was the direct result of his own carelessness in failing to look where he was driving. Plaintiff’s own testimony indicates that he drove against the side of the gas pipe which he claims was negligently left protruding into the roadway, and that his buggy was overturned by striking the end of another pipe which was not left in the roadway, while most of his witnesses testify that his buggy struck the-end of the pipe which protruded into the roadway. We think this conflict in the evidence is unimportant. The accident occurred in daylight and plaintiff’s eyesight was not impaired. The gas pipe which he struck was lying on comparatively level ground, and had he exercised the diligence which the law and ordinary prudence calls for under the circumstances he would have seen the pipe in ample time to have driven around it.

We have not been able to find any ease where the facts were precisely the same as in this one, but the following decisions announce the rule that when one traveling along a public street sees, or otherwise receives actual notice, that such street is out of repair or tom up, he must look for obstructions and other dangers and avoid them if he can do so by exercising ordinary care. [Phelan v. Paving Co., 227 Mo. 666, l. c. 705-6; Nessler v. House Wrecking Co., 156 App. Div. (N. Y.) 348, 350; Nolan v. King, 97 N. Y. 565, l. c. 571-2; District of Columbia v. Moulton, 182 U. S. 576.] The same rule seems to apply where a person traveling any public highway has actual knowledge of an obstruction therein. [Wheat v. City of St. Louis, 179 Mo. 572, 64 L. R. A. 292.]

The conclusions we have reached necessarily result in the reversal of the judgment appealed from. It is so ordered.

Walker, P. J., and Paris, J., concur.


text:
    THE STATE ex rel. CITY OF ST. LOUIS v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    December 31, 1914.
    1. CITY ORDINANCE: In Conflict with Statute: Retrospective: Viaduct: Public Service Commission: Suspension of Judgment. A city ordinance requiring a railroad company to construct a viaduct or bridge over its tracks at a street crossing, at its own expense, is in conflict with the statute permitting the Public Service Commission to apportion the costs of the viaduct between the city and the railroad company; but the statute is a later enactment, and does not have a retrospective operation, and cannot be held to nullify a suit to enforce the provisions - of the ordinance prosecuted to judgment before the enactment of the statute.
    2. -: Suspension By Statute. Whatever rights have been acquired by a city, and whatever has been legally done under its charter and ordinances, prior to the enactment of a statute, are beyond the power of the General Assembly to disturb by such statute.
    3. -: -: Rights Acquired By Violation of Ordinance. If the city ordinance is valid and binding, the railroad company cannot gain any advantage by Violating it. Where it appears that, if the railroad company had obeyed the ordinance requiring it to build a viadúct in a street crossed by its tracks, the viaduct would have been almost completed before the suit was brought to compel it to obey it, the courts will not listen with patience to its prayer that, as no actual work has been done on the viaduct and the later enacted statute permits the Public Service Commission to apportion the costs between the city and the company, said apportionment should be made by the courts.

      4. VIADUCT OVER STREET: Overhead or Under Tracks: Option. Under the charter of the city of St. Louis the Missouri Pacific Railway Company does not possess an option to cause streets to pass over or under its tracks, and mandamus will lie to compel it to obey an ordinance requiring it to construct a viaduct over its tracks crossing a public street. In ordering the abolition of a grade crossing the city proceeds under the authority of its charter, which is an exception to the general statutes pertaining to the subject.
    5. ORDINANCE: Recital of Reasons for Its Enactment: Viaduct Over Street. A legislative body need not recite the reasons which move it to enact a law. The law when enacted furnishes its own reasons. A railroad company cannot refuse to obey an ordinance requiring it at its own expense to construct a steel viaduct over its tracks at a street crossing for that the ordinance does not declare the existing grade crossing a public nuisance, or that it is dangerous, or states no reason for' requiring a separation of grades at said crossing.
    6. VIADUCT AT STREET CROSSING: No Benefit District). A railroad company is not justified in refusing to obey an ordinance of the city of St. Louis requiring it to construct at its own expense a steel viaduct over its tracks at a certain street crossing, because certain statutes intended to apply to cities of- the first class require the establishment of a benefit district “to pay for the damages which may be caused to any property by reason of the construction of such subway or viaduct,” and no such benefit district has been established; for, said city is not of the category of cities of the first class, but is organized under a special freeholders’ charter authorized by the Constitution, and said statutes do not apply.
    7. -: Title of Street: Admitted in Return. The title to public streets is necessarily in the city; and if defendant in its return to the writ of mandamus, commanding it to construct a viaduct over its tracks at a certain street crossing, admits that the street was at all times a public street, it will not be heard to contend that the title to the street is in it.
    8. -: Unreasonable Ordinance: Must Be Pleaded. When a defendant wishes to avoid the provisions of an ordinance on the ground that they are unreasonable, the particular facts which render them invalid should be pleaded. A general allegation that the “ordinance is unreasonable upon its face, is unjust and oppressive, and was passed, without due consideration and without affording defendant an opportunity to be heard,” is not sufficient to authorize a court to hold that an ordinance requiring defendant to construct at its own expense a steel viaduct over its tracks at a street crossing is unreasonable.

      9. APPEAL: Grounds Not Mentioned In Motion for New Trial. Constitutional objections to an ordinance set up in tbe answer, but omitted from defendant’s motion for a new trial, will not be considered on appeal.
    Appeal from St. Louis City Circuit Court. — Eon. J. Mugo Grimm, Judge.
    Arrirmed.

      James F. Green for appellant.
    (1) Under the Public Service Commission law the Public Service Commission is vested with exclusive jurisdiction as to the matter of the separation of grade crossings, and, nothing having been done under said ordinance providing for the separation of grades at Chouteau avenue, this proceeding instituted by the city should be dismissed. Elec. L. & P. Co. v. St. Louis, 253 Mo. 592; State ex rel. v. G-as Co.-, 254 Mo. 515; State ex rel. v. Superior Court, 120 Pac. 861; State ex rel. v. Railroad, 142 N. W. 185; Railroad v. Spokane County 134 Pac. 689; Emporia v. Tel. Co., 133 Pac. 858. (2) The city of St. Louis can pass no ordinance which is in conflict with the Constitution, statutes or common laws of the State. Secs. 16, 20, 22, 23 and 25, Art. 9, Constitution; City v. Hoblitzelle, 85 Mo. 78; St. Louis v. Dorr, 145 Mo. 477; St. Louis v. Kaime, 180 Mo. 321; St. Louis v. Meyer, 185 Mo. 591; St. Louis v. Klausmeier, 213 Mo. 125; St. Louis v. Wortman, 213 Mo. 131; Dillon on Mun. Corp. (4 Ed.), p. 145; St. Louis v. Dreisoemer, 147 S. W. 998. (3) The granting-of a writ of mandamus is largely in the discretion, of the court, and should never be issued in doubtful cases. State ex rel. v. Bridge Co., 206 Mo. 74; State ex rel. v. McIntosh, 205.Mo. 610; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Railroad, 77 Mo. 147; High on Extraordinary Remedies, sec. 9; Merrill on Mandamus, sec. 62; 2 Morawetz on Private Corporations (2 Eld.), see. 1134; Tipping on Mandamus, secs. 324-327; 19 Am. & Eng. Ency. Law (2 Ed.),' 751. (4). Under the charter of the city of St. Lonis and the statutes of Missouri prior to the enactment of the Public Service Commission law, when it became necessary to separate grade crossings, the railway company had the right to cause the street to go under or over the railroad tracks. ■ The ordinance arbitrarily requires the railway company to build a viaduct at its own expense, ignoring the option given by said statutes. Secs. 3049, 3141, 10626, R. S. 1909; Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 578; Terry v. Railroad, 89 Mo. 586; Pratt v. Railroad, 139 Mo. App. 511; People v. Railroad, 74 N. Y. 304; Railroad v. St. Louis, 66 Mo. 228. (5) The ordinance in controversy does not declare the crossing of Chouteau avenue with defendant’s tracks a public nuisance; nor does it declare that said grade crossing is. dangerous ; it states no reason for requiring a separation of grades at said point. (6) The ordinance is unreasonable, because it does not require the city or the street railway company to pay any portion of the expenses incident to the construction of the viaduct, nor any portion of the consequential damages. Bd. of Aldermen v. Railroad, 89 N. E. 438; In re Mayor of Taunton, 70 N. E. 48; Detroit v. Railroad, 120 N. W. 603. (7) Relator seeks in this proceeding to compel the railway company to assume and pay all of the damages consequent upon the construction of the viaduct, in contravention of the statute, which requires the establishment of a benefit district “to pay for the damages which may be caused to any property by reason of the construction of such subway or viaduct and its approaches. ’ ’ Sec. 44, Laws 1911, p. 333; Sec. 8588, R. S. 1909.

      William E. Baird for respondent.
    (1) At the time of the passage of the ordinance, February 28, 1911, the city of St. Louis undoubtedly had the power to pass the ordinance in question, and to require a railroad company to abolish grade crossings. Tobacco Co. v. 'St.-Louis, 247 Mo. 374. (2) The enactment of the Public Service Commission law, approved March 17,1913, did not nullify the ordinance in question. Superior v. Roemer, 154 Wis. 345; Miller v, Railroad, 133 Wis. 183; Wells v. Remington, 118 Wis. 573; Elec. L. & P. Co. v. St. Louis, 253 Mo. 592; Dillon, Mun. Corps. (5 Ed.), sec. 235; State ex rel. v. Severance, 55 Mo. 386; Wills v. Railroad, 133 Mo. App. 625; E. St. Louis v. Maxwell, 99 HI. 443; Wood v. Election Comrs., 58 Cal. 561; State v. Williams, 80 Tenn. 251. (3) While the granting of a writ of mandamus is largely in the discretion of the court, nevertheless, where the lower court has exercised its discretion and awarded the writ, the appellate court should not reverse the judgment unless it is clear that the lower court abused its discretion. State ex inf. v. Gras Co., 254 Mo. 515. (4) Neither section 3049 nor section 3141, R. S. 1909, permitting a. railroad to make a road or street pass under its tracks, is a grant of power to the railroad. This provision of the law merely permits the railroad to make a street or road pass under its tracks, and is not a limitation upon the power of the city. It does not give an unconditional option to the railroads. People ex rel. v. Railroad, 177 N. T. 337. Sec. 8588; R. S. 1899, as amended by the Act of April 11, 1911 (Laws 1911, p. 332), refers solely to cities of the first class, and therefore does not apply to the city of St. Louis. State ex rel. v. Mason, 153 Mo. 52; Kansas City v. Stegxoiller, 151 Mo. 204; State ex rel. v. Mason, 155 Mo. 486. (5) It was not necessary that there should have been a finding by the Municipal Assembly of the fact that the grade crossing in question constituted a nuisance, nor that there should have been a declaration to that effect- by the assembly or other municipal agency, or that the railroad should have received a notice of the intention to enact the ordinance. Yonng v. City, 47 Mo. 492; Kiley v. For-see, 57 Mo. 394; Railroad v. Maguire, 49 Mo. 480; Harrelson v. Railroad, 151 Mo. 482; Health Department v. Trinity Church, 145 IT. S. 32; Texas v. Interstate Co., 155 IT. S. 585. (6) The question of reasonableness of the ordinance cannot be discussed, for the reason that the point was not properly raised by the pleadings. An ordinance may, indeed, be void for unreasonableness, but the question can only be raised by a proper statement of the facts in the pleadings showing the ground of attack. Conshohocken Borough v. Light Co., 29 Pa. Sup. 7; Bradford v. Jones, 141 Ky. 820; Neary v. Railroad, 41 Mont. 480; McQuillin, Municipal Ordinances, sec. 327.
   BROWN, J.

Mandamus to compel the submission of plans for a public viaduct. From a judgment for plaintiff defendant appeals.

On February 28, 1911, the city of St. Louis, Missouri, through its legislative department, duly enacted an ordinance which required the defendant, at its own expense, to construct a steel viaduct and approaches' thereto over defendant’s railroad tracks where the same cross Chouteau avenue, a public street of said city. This ordinance will hereafter be designated as the viaduct ordinance. The length, height, materials and general description of the proposed viaduct are recited in the ordinance. It also contains the following important provisions: (1) That within four months after it becomes effective the defendant shall submit to the Board of Public Improvements of plaintiff city plans, profiles, detailed drawings and specifications for the proposed viaduct and approaches thereto. (2) That within six months after the approval of said phtns, etc., by the Board of Public Improvements the defendant must begin the actual work of constructing the viaduct and complete the same within eighteen months after the work is begun; (3) The failure to perform any of the things required by the ordinance is declared a misdemeanor punishable by fine.

The defendant failed to submit plans, etc., to the Board of Public Improvements, as required by the viaduct ordinance, and on August 10, 1911, this action of mandamus was instituted to compel defendant to submit said plans, profiles, etc., for the proposed viaduct.

In its return to the alternative writ issued herein by the circuit court, the defendant admits that Chouteau avenue is and was at the time the viaduct ordinance, took effect a public street of plaintiff city used by pedestrians and vehicles, and that defendant was operating its railroad across said street. In its return defendant has set up many constitutional and other alleged grounds why the alternative writ of mandamus should be quashed and no absolute writ issued. Some of these defenses were abandoned, but suGh of them as are properly before us for review will receive attention in ^connection with the conclusions we have reached.

Stipulations which form part of the evidence upon which the case was tried admit that the defendant’s railroad tracks were constructed across the land where Chouteau avenue is now located before said avenue was opened as a public street; admit that the city has not created a district within which private property would be benefited by the construction of the viaduct, and that the defendant refused and still refuses to submit plans, etc., for the construction of the viaduct to the Board of Public Improvements of plaintiff city.

The oral evidence tends to prove that defendant maintains five or six railroad tracks across Chouteau avenue where the ordinance requires the viaduct to be constructed, and that there is a double-track street railroad of the United Railways Company on the same street. Also that upon one side of said street at the point where the ordinance requires the viaduct to be constructed there is a stoneyard, a lumberyard, a roundhouse and a six-story packing plant; and upon the other side of said street a three-story boarding house and six residences, some of them two-story buildings and others one-story.

The defendant offered to prove that the proposed viaduct would cost more than $150,000, which evidence was objected to by plaintiff on the ground that it did not tend to prove any issue tendered by the pleadings, and on said objection was excluded. The trial resulted in a finding for plaintiff, and a judgment directing an absolute writ of mandamus as prayed. From that judgment this appeal is prosecuted.

I. The most difficult issue in this case arises on a motion by defendant to dismiss the cause, filed since the appeal was lodged in this court, on the ground that the Public Service Commission law, enacted by the Missouri G-eneral Assembly in 1913, is in conflict with the viaduct- or¿inance requiring defendant to construct the proposed viaduct and the approaches thereto, in this, that the Public Service Commission law permits said commission to apportion the costs of said viaduct between the city and the defendant, while the viaduct ordinance requires all of said expense to be borne by defendant.

It is perfectly apparent that the State law before mentioned is in conflict with the provisions of the viaduct ordinance upon which this suit is bottomed, and there is quite a respectable array of authorities which tend to support appellant’s position that the viaduct ordinance was repealed by the enactment of the Public Service Commission law.

In State ex rel. Webster v. Superior Court of King County, 67 Wash. 37, it was held that a public service commission law of the State of Washington superseded an ordinance of the city of Seattle fixing telephone rates, and gave the commission the right to raise the rates previously fixed by city ordinance.

In Railroad Company v. Spokane County, 75 Wash. 72, it was held that a law of the State of Washington empowering a railroad commission to assess railroad property for purposes of taxation nullified an assessment made by officers of said county under a former law. •

In City of Emporia v. Telephone Company, 90 Kan. 118, it was held that telephone rates fixed by a public utilities commission nullified and superseded rates previously fixed by an ordinance of the city of Emporia.

In the case of Union Electric Light & Power Co. v. City of St. Louis, 253 Mo. 502, it was held by the Missouri Supreme Court that an ordinance of the city enacted under the law of 1907 fixing rates to be charged for electric light was nullified by section 139 of the Public Service Commission Act of 1913, because said section effected a complete repeal of the law of 1907 and carried with it the ordinance enacted pursuant to its provisions.

In the case of Kansas City v. Clark, 69 Mo. 588, it was held that when a city repeals an ordinance under which a defendant has been convicted such repeal wipes out the crimes committed under the ordinance, and upon appeal a defendant charged with such crimes is entitled to his discharge.

There is no doubt that when the General Assembly enacts a law which is in irreconcilable conflict with a city ordinance theretofore enacted such ordinance is thereby repealed, but whether such a repeal nullifies acts done under a legal ordinance during the time it was in force and before the conflicting statute was passed raises a serious question. Where the power to remit fines, penalties and forfeitures accruing in favor of a city is vested in its mayor, a nice question would arise over the exercise of such power by a legislative body. [State v. Grant, 72 Mo. 113.] Bnt sncli an issue is not directly involved in this case as it is not an action for fines or penalties.

In the case of St. Louis v. Wortman, 213 Mo. 131, it was said by this court that the repeal of an ordinance of St. Louis city by the enactment of a State law in conflict therewith rendered it impossible to further prosecute one who had violated the repealed ordinance. In that case it was held that the ordinance upon which the prosecution was based was void because of its defective title, so that what was said about the effect of its repeal by a conflicting State statute may be treated as obiter.

However, notwithstanding the long array of authorities which, in some measure, tend to support the contention of appellant, we have concluded that its motion to dismiss the cause should be overruled for the following reasons :

To hold that the Public Service Commission act nullifies and wipes out the proceedings had and rights acquired under the viaduct ordinance we thus render the Public Service Commission act invalid under our organic law which expressly ordains that ‘no law . . . retrospective in its operation . . . can. be passed by the General Assembly.” [Sec. 15, art. 2, Constitution of Missouri.]

In the early case of Stevens v. Andrews, 31 Mo. 205, it was held by this court that it was not within the constitutional power of the General Assembly to suspend execution on a judgment entered before the law allowing such suspension was enacted. Certainly if the General Assembly may not suspend the enforcement of a judgment valid when entered, it cannot destroy a judgment valid under the law at the time of its entry.

In the case of Cranor v. School Dist., 151 Mo. 119, it was said that a statute of limitation which would cut off or bar the right to revive a judgment already legally entered was retrospective in its operation, and, therefore, invalid. In that case it was accordingly ruled that a statute which by its words appeared to have a retrospective effect would be construed as operating only prospectively. In the same case a well-known rule was repeated, that all laws should be construed propsectively, unless the intention to .make them operate retrospectively is so clear as to leave no reasonable doubt on that subject. This last-named rule is entirely sound but need not.be applied here, for the reason that there is nothing in the Public Service Commission law enacted in 1913 which in the remotest degree tends to give it a- retrospective effect. The repealing clause of said act contains the following words: “The provisions of this act are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws.” [Sec. 139, Laws 1913, p. 651.]

To arrive at such an anomalous result as defendent contends for is to disregard another well-known rule of statutory construction, to-wit, that the intent of the lawmaker should govern. "We have no reason for assuming that the General Assembly knew that the viaduct ordinance upon which this action is bottomed ■had been enacted by the city of St. Louis, much less that the action to enforce the rights acquired thereunder had been prosecuted to a judgment in the circuit court. Courts do not take judicial notice of city ordinances, and it would be an absurdity for us to hold that the General Assembly, sitting outside of the city óf St. Louis, knew of the viaduct ordinance, or of said suit to enforce its provisions. Therefore, with nothing in the law indicating an intent to overturn the judgment below, we cannot read into the Public Service Commission act any such intention. It follows that the Public Service Commission law can only be held to operate prospectively.

Whether the charter provisions of the city of St. Lonis in regard to the control of its streets were superseded by the Public Service Commission act is not necessarily before us, and we decline to express any opinion on that important subject at this time. However, we do hold that whatever rights were acquired by the city, and whatever was legally done under the charter of said city and the viaduct ordinance prior to the enactment of the Public Service Commission act, were beyond the power of the General Assembly to disturb.

This ruling is supported by the very recent case of City of Superior v. Eoemer, 154 Wis. 345, in which it was held that the legislative bo'dy of Superior City having, under a right granted by the charter of said city, passed a resolution requiring certain railroads to construct at their own expense a viaduct over their tracks at Belknap street, in said city, and a copy of said resolution having been served upon the railroads before the General Assembly of Wisconsin created a public service commission, it was beyond the power of said commission to apportion any part of the costs of said viaduct to the city, for the reason that by the passage of said resolution and the service upon the railroad companies of a copy thereof the city was given a vested right to have the viaduct constructed at the expense of the railroads.

But says the appellant, as no actual work has been done under the viaduct ordinance, the Public Service Commission law should be applied so as to allow the apportionment of a part of the costs of- the viaduct to the plaintiff city. This argument does not appeal to us as being sound. Defendant by its stipulations admits that it had ignored and refused to obey the provisions of said viaduct ordinance during a period of nearly twelve months following its enactment.

If the viaduct ordinance is valid, certainly a party who has violated its provisions is not entitled to gain any advantage by such violation. If that ordinance bad been obeyed the viaduct would have been well-nigh completed when this cause was instituted in the circuit court.

II. We pass not to the alleged errors of the trial court. Defendant earnestly insists that, under the general laws of Missouri (Secs. 3049, 3141 and 10626, R. S. 1909) as they existed prior to the passage of the Public Service Commission act, it possessed an option to cause streets to pass over or under its tracks, and being thus vested with an option mandamus will not lie to compel the construction of a viaduct over its tracks.

This issue was before us in the recent case of American Tobacco Co. v. St. Louis, 247 Mo. 374, l. c. 434-5-6, to which case the present defendant was a party. In that action it was held that in ordering the abolition of a grade crossing the city was proceeding under authority of its charter which formed an exception to the general statutes hereinbefore referred to. In that case pretty much the same authorities were cited by defendant as in the case at bar, so that no good will be accomplished by referring to them again in this opinion. The conclusions announced in the American Tobacco case met with the approval of the members of this court sitting in Banc, and we are still satisfied therewith.

III. Another assignment is as follows: “The ordinance in controversy does not declare the crossing of Chouteau avenue with defendant’s tracks a public nuisance; nor does it declare that said grade crossing is dangerous ; it states no reason for requiring a separation of grades at said point.”

No authorities are cited in support of this contention, nor have we found any that tend to support it. A legislative body need not recite the reasons which moved it to enact a law. The law when enacted furnishes its own reasons.

In Young v. St. Louis, 47 Mo. 492, it was held by this court, in substance, that the passage of an ordinance by a city was equivalent to an averment that the necessity for such ordinance had arisen. We have been unable to find any case which overrules or modifies the doctrine of the Young case, last cited, but we do find that it was expressly approved in Kiley v. Forsee, 57 Mo. 390, l. c. 394. This point will be ruled against defendant.

IV. A further contention of defendant is that ‘ relator seeks in this proceeding to compel the railway company to assume and pay all of the damages consequent upon the construction of the yia(jn0^ in contravention of the statute which requires the establishment of a benefit district ‘to pay for the damages which may be caused to any property by reason of the construction of such subway or viaduct and its approaches.’ [Sec. 44, Laws 1911, p. 333; Sec. 8588, R. S. 1909.] ”

The point is also ruled against defendant, because the statutes cited show on their face that they were intended to apply to municipalities organized as cities of the first class. The plaintiff city is not in that category, being organized under a special charter as permitted by sections 16 and 20, article 9, Constitution of Missouri. [State ex rel. Hawes v. Mason, 153 Mo. 23, l. c. 52.]

V. In its argument at the bar of this court defendant insisted that the circuit court erred in awarding the writ of mandamus, because the fee simple title to the land where Chouteau avenue is located is vested in defendant. We do not think this issue is open to defendant in this appeal, for the reason that in its return (in the nature of an answer) filed below, it expressly admitted that Chouteau avenue was “at all times mentioned in plaintiff’s petition a public street of plaintiff city. ’ ’ The title to the public streets of a city is necessarily vested in the city; therefore, the defendant could not be vested with the title thereto at the same time, and the admission before noted takes that issue out of the case.

VI. A final insistence of defendant is that “said ordinance is unreasonable, because it does not require the city or the street railway company to pay any portion of the expense incident to the construction of the viaduct, nor any portion of the consequential damages.”

The only attempt on the part of defendant to present this issue in its pleading's is that part of its return which reads as follows: “Said ordinance is unreasonable upon its face, is . • . 7 unjust and oppressive, and was passed without due consideration and without an opportunity being afforded to the property owners interested, as well as to this respondent, to be heard before the passage thereof.”

It is undoubtedly true that an ordinance which is grossly unreasonable is void. Such was the unanimous ruling of this court in Banc in the American Tobacco Company case, 247 Mo. 374.

However, respondent insists that the alleged unreasonableness of the viaduct ordinance was not sufficiently pleaded to enable plaintiff to meet such a defense, and, therefore, the trial court properly excluded evidence on that issue. Plaintiff cites in support of this contention the case of Neary v. Railway Co., 41 Mont. 480, in which it was held that a railroad com-party could not introduce evidence tending to show that a speed ordinance upon which plaintiff relied to show negligence was unreasonable without pleading as a part of its defense the particular facts which rendered such ordinance unreasonable. Plaintiff also cites the following additional cases which sustain its position: W. Conshohocken Borough v. Light & Power Co., 29 Pa. Sup. 7; Bradford v. Jones, 142 Ky. 820; and McQuillin, Municipal Ordinances, sec. 327, p. 510.

The ordinances of a city are presumed to be legal and reasonable, and when a litigant seeks to avoid their provisions on the ground that they are unreasonable, the particular facts which render them invalid should be pleaded.

The only evidence offered to' show the unreasonableness of the viaduct ordinance was that the proposed viaduct would cost “more than $150,000;” and even if that evidence had been admitted it alone would not have proven that the ordinance was in fact unreasonable.

If the defendant had offered evidence sufficient in quantity and quality to establish the fact that the viaduct ordinance was unreasonable, and if the trial court had received such - evidence and found for defendant, quite a different issue would now be before us under the liberal provisions of our Missouri Code and Statute of Jeofails. This insistence is also ruled against defendant.

VII. In its answer defendant has urged numerous constitutional objections to the viaduct ordinance, but these defenses were abandoned in its motion for new trial, so that we are not called upon to consider them on appeal. [Shell v. Railway Co., 202 Mo. 339; Lohmeyer v. Cordage Co., 214 Mo. 685, l. c. 689; Miller v. Connor, 250 Mo. 677, l. c. 684.]

After a full consideration of all the issues in the case we are of the opinion that the plaintiff city, through the enactment of its viaduct ordinance, and the institution and prosecution of this cause to judgment in the circuit court prior to the date when the Public Service Commission law was enacted, acquired the right to have the proposed viaduct and the approaches thereto constructed by defendant at its own expense. Therefore the judgment appealed from will be affirmed.

All concur, except Bond, J., who dissents.