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 south bound 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 forearm, 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 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 be 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 car 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, yet 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 assignment of negligence, plaintiff states that, at the time and place of receiving said injuries aforesaid, defendant's servants in charge of said car negligent

ly 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 onto 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 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 curbstone, 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 50 or 60 feet distant. He had hardly seen the car 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 7 or 8 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 onto the vestibule of the car, right at the feet of the motorman. He testified he looked 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 20 to 40 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 eyewitnesses 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 corner 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 (Masterson) 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 Westminster, or a little south of it. Masterson testified he remembered the inciIdent 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 onto 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 Westminster. 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. Fenley says it was going very fast, and she noticed no effort to check the speed. Mitchell testified it was going nearly 20 miles an hour. 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 Dr. Harvey G. 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.

1. 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.

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 19,971, approved April 3, 1900, and commonly known as the "Vigilant Watch Ordinance," from the fact that it provides that the motorman or other employé 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 a 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 the Constitution of the state,

or the Legislature, in the exercise of its general legislative power, when not restricted by the federal or state Constitutions, 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, 59 Am. Dec. 275; 1 Dillon on Munic. Corp. § 308, and cases cited; State ex rel. v. Francis, 95 Mo. 49, 8 S. W. 1; Morrow v. Kansas City (in banc at this term, not officially reported) 85 S. W. 572; State ex rel. v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798.

The freeholders' charter of the city of St. Louis, adopted August 22, 1876, has all the force and effect of a legislative charter. Kansas City v. Oil Co., 140 Mo. 468, 41 S. W. 943; City of St. Louis v. Gleason, 15 Mo. App. 25; Id., 93 Mo. 33, 8 S. W. 348. By section 1 of article 10 of the scheme and charter of St. Louis, 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, art. 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 nuisances, 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, 31 S. W. 594, 31 L. R. A. 798; St. Louis & Meramec Riv. Ry. Co. v. Kirkwood, 159 Mo. 239, 60 S. W. 110, 53 L. R. A. 300; section 20, art. 12, Const. 1875.

Discussing section 26 of article 3 of the St. Louis charter (2 Rev. St. 1879, p. 1585), in St. Louis v. Western Union Telegraph Co., 149 U. S. 467, 13 Sup. Ct. 990, 37 L. Ed. 810, 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 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, § 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 appropriate 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, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. Rep. 547; Knapp & Co. v. Railroad, 126 Mo. 26, 28 S. W. 627.

Looking, then, to the ordinance which requires of street railway companies that their 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 running along or across their 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. R. Co., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650. 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. Ry. Co., 108 Mo. 443, 18 S. W. 1104, 32 Am. St. Rep. 615, 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 railway 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 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. R. R., 98 Mo. 331, 11 S. W. 736, 4 L. R. A. 776, 14 Am. St. Rep. 645; Knobloch v. R. R., 31 Minn. 402, 18 N. W. 106; Railroad v. Deacon, 63 Ill. 91; Thorpe v. R. R., 27 Vt. 140, 62 Am. Dec. 625. Indeed, Judge Redfield says: "We should entertain 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 (5th Ed.) 577, 578.

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 motorman 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 force and effect of law within the limits of the corporation. Jackson v. Grand Ave., 118 Mo. 218, 219, 24 S. W. 192. 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, the power 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.. R. Co., 105 Mo. 537, 16 S. W. 913, 13 L. R. A. 74; Byington v. R. Co., 147 Mo. 673, 49 S. W. 876; Murphy v. Lindell Ry. Co., 153 Mo. 252, 54 S. W. 442. 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. Ry. Co., 157 Mo. 635 et seq., 58 S. W. 32, 80 Am. St. Rep. 650, 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 regulations, and which relate priImarily 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 textwriters. Thus in 1 Shearman & Redfield on Negligence, § 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, 23 N. W. 237, 53 Am. Rep. 47, cited with approval by this court in Bluedorn v. Ry. Co., 108 Mo. 439, 18 S. W. 1103, 32 Am. St. Rep. 615, and Jackson v. Ry. Co., 157 Mo. 636, 58 S. W. 32, 80 Am. St. Rep. 650, the distinction was clearly drawn and emphasized, and the authorities throughout the Union collected and distinguished. The opinion in Jackson v. Ry., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650, 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 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 enforceable 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. Ry. Co., 157 Mo., loc. cit. 624, 58 S. W. 32, 80 Am. St. Rep. 650. 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, if the street car company in St. Louis could not be 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 Fath Case, and that this court had followed the latter case in several decisions. This is true, but we duly considered these decisions, and in our opinion they were not in harmony with an unbroken line of decisions, from Karle v. Ry. Co., 55 Mo. 476, down to Prewitt v. Railroad Co., 134 Mo. 615, 36 S. W. 667, 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. Ry. Co., 157 Mo., loc. cit. 641, 58 S. W. 32, 80 Am. St. Rep. 650. Jackson v. Ry. Co., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650, has received the approval of this court in banc in Weller v. Ry. Co., 164 Mo. 180, 64 S. W. 141, 86 Am. St. Rep. 592, and the principle upon which it stands has been reiterated in Hutchinson v. Ry. Co., 161 Mo. 246, 61 S. W. 635, 852, 84 Am. St. Rep. 710, and Wendler v. People's House Furnishing Co., 165 Mo. 527, 65 S. W. 737, and Cox v. R. Co. (Mo. Sup.) 74 S. W.

858; and we see no reason for regarding it longer as an open question in this state.

Fath v. Ry. Co., 105 Mo., loc. cit. 545, 16 S. W. 913, 13 L. R. A. 74, and the subsequent cases of Byington v. Ry. Co., 147 Mo. 673, 49 S. W. 876, Murphy v. Lindell Ry. Co., 153 Mo. 253, 54 S. W. 442, Sanders v. Southern Electric Ry., 147 Mo. 411, 48 S. W. 855, and Holwerson v. St. Louis & Suburban Ry. Co., 157 Mo. 245, 57 S. W. 770, 50 L. R. A. 850, 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. Ry. Co., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650, the St. Louis Court of Appeals have followed it in various cases. Gebhardt v. Transit Co. (Mo. App.) 71 S. W. 448; McLain v. St. L. & S. Ry. Co. (Mo. App.) 73 S. W. 909; Moore v. St. Louis Transit Co. (Mo. App.) 75 S. W. 699; Sepetowski v. Transit Co. (Mo. App.) 76 S. W. 693.

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 care 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. Transit Company, 76 S. W. 693, 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 decisions of this court. Riska v. Union Depot R. Co., 180 Mo. 168, 79 S. W. 445. It was said by Judge Sherwood in Lamb v. Ry. Co., 147 Mo., loc. cit. 204, 48 S. W. 659, 51 S. W. 81, 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 engines, and although, in his opinion, the 80rods 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 thermometer, determines to what degree prudence shall rise in order to reach the mark of ordinary care." The same prin