GRUBE v. MISSOURI PACIFIC R. Co. (Missouri Supreme Court, June 10, 1889.) Municipal Ordinances-Applicability to Yards of Railroad Company.-Municipal ordinances limiting the speed of trains within the city limits, and requiring lights to be displayed when moving at night, apply to the movement of cars in the yards of a railroad company. Master and Servant-Selection of Foreman-Reputation of Unfitness.-To show a want of reasonable care in selecting a fit and competent person to act as foreman, and in retaining him in service, it is competent to put in evidence, not only his general reputation of unfitness for the duties assigned to him, but also specific acts of negligence, or of incompetency, with evidence of knowledge thereof on the part of the master. Same-Contributory Negligence-Sufficiency of Instruction.-An instruction in an action for damages which directs a verdict for the plaintiff, if the facts therein stated be found to be true, and the deceased was injured "without negligence on his part directly contributing thereto," is not open to the objection that it ignores the question of negligence on the part of the deceased, when the jury are instructed that the plaintiff could not recover if deceased was guilty of negligence, or if he knew, or by the exercise of care, might have known, that the person through whose negligence the accident occurred was an incompetent or negligent foreman and he thereafter continued in defendant's employ. APPEAL from Circuit Court, Cass County. T. J. Portis and Adams & Bowles for appellant. Case stated. BLACK, J.-The plaintiff is the widow of Frank T. Grube. She brought this suit to recover damages for the death of her husband, who was injured in the defendant's switchyards at Kansas City on the 20th November, 1883, and from which injuries he died two or three days later. There was a verdict and judgment for plaintiff, and the defendant appealed. Facts. There are some facts set out in the petition, disclosed by the evidence on both sides, and about which there is no dispute, and they are, in substance, these: The accident occurred between half past 6 and 7 o'clock in the afternoon, on side track No. 6. It was dark at that time. The switch tracks run in an east and west direction, and No. 6 is a short track, just to the north of a main switch track. The water plug and coal chutes are on the west end of No. 6. It was the duty of the switch crews to go on this track in the evening, take on coal and water and oil, and prepare their engines for the night-work. At the time in question there were three engines on the track preparing for the night work, and waiting for orders from the yard master. These engines all fronted east; 806 stood furthest west, 804 stood six to twelve feet east, 801 stood three to six feet east of that, and a few feet further east there were three cars standing on the same track. Grube, the deceased, belonged to what was called the "West-End Crew." He was sitting on the pilot-beam of his engine, it being 804, which was the middle of the three engines as they stood on the track. At this time O'Neal, who was the foreman of another crew, known as the "East-End Crew," backed a train of from 18 to 35 cars in on the east end of track No. 6. He ran the train against the three cars, driving them on engine 801, which was forced against 804, and the whole in turn against 806, driving it backwards some distance. Grube was caught and injured in the collision, while sitting on the pilot-beam of engine 804. It may be stated here that he was at his proper place. The petition sets out two sections of an ordinance of the City of Kansas whereby it is enacted: "Sec. 5. No conductor, engineer, fireman, brakeman, or other person shall move, or cause or allow to be moved, any locomotive, tender, or car within the city limits at a greater rate of speed than six miles per hour, under a penalty of not less than twenty-five dollars, nor more than $500." "Sec. 10. No conductor, engineer, fireman, brakeman, or other person in charge of any locomotive tender, car, or train of cars shall run, or move, or cause or allow to be run or moved, for any purpose whatever, within this city, between sunset and sunrise, any such locomotive, tender, car, or train of cars without having at least one lamp, head-light, or lantern conspicuously placed in front of the same, facing the direction in which the same may be moving, whether running forward or backward, under a penalty of not less than $25, or more than $500." The petition then counts upon a violation of both sections of the ordinance by O'Neal, and alleges that he was an incompetent foreman, and charges negligence on the part of the defendant in employing and retaining him in its service. The further evidence for the plaintiff tends to show that O'Neal ran his train in on the side track, and against the three cars and the engines, at a rate of speed from 9 to 11 miles per hour; that he had no one on the west end of the train, or near enough to it to receive danger signals from persons at or about the coal chutes. The proof is clear and undisputed that there was no light on that end of the train which came in on the side track. For the defendant, O'Neal testified that his train was moving at the rate of about three miles per hour; that he had a man with a lantern at the west end of it, who was on the ground, and a passing train on another of the tracks obstructed his view, so that he could not communicate with his engine; that this man failed to make the coupling as the cars came in contact, and hence the collision. There is evidence tending to show that O'Neal was a reckless and careless foreman, and known to be such by his superior officers; and, on the other hand, there is evidence to the effect that he was a careful and prudent man, and so reputed to be. The case was placed before the jury on the theory of the petition, namely, that a violation of the ordinance either in moving the train at a greater rate of speed than six miles per hour, or in failing to have a headlight, lamp, or lantern placed in front of the same, facing the direction in which the train was moving, was negligence on the part of O'Neal, and that his negligence in either of these respects, coupled with the facts that O'Neal was an incompetent and careless foreman, and that defendant was negligent in retaining him in its service, laid a foundation for recovery by the plaintiff. On all these points the instruction given on the one side and the other are full and fair, and need not be set out in detail. movement of It was, however, admitted on the trial that these switchyards where the accident occurred had never been laid off into streets or alleys; that they were not used by the public, and were in the exclusive use of the defendant, but on three sides were not fenced. They are partly in Kansas. The accident happened at a point in this state. On these admissions the court refused to instruct that the Ordinances ordinance had no application to the defendant in apply to the transaction of its business in the yards. While trains in yard. there is abundant evidence upon which the case could go to the jury without reference to the ordinance, still the case is made to stand on the ground that a violation of the ordinance in either respect was negligence, and whether the ordinance applies to the defendant in the movement of its cars in its yards is a vital question, as the case stands on this record. There can be no doubt but the state has the power to regulate the speed of trains, and to make other reasonable regulations for the movement of locomotives and trains of cars in cities, towns, and other crowded places. Such regulations concern domestic government, and are but the exercise of the police powers of the state. Toledo, P. & W. R. Co. v. Deacon, 63 Ill. 91; Mobile & O. R. Co. v. State, 51 Miss. 137; Knobloch v. Chicago, M. & St. P. R. Co. 31 Minn. 402, 14 Am. & Eng. R. Cas. 625; Tied, Lim. of Police Powers, & 194. The power to enact such regulations may be delegated to cities and towns. Merz v. Missouri Pac. R. Co., 88 Mo. 672, 26 Am. & Eng. R. Cas. 537. In the case last cited it was insisted that, as the place where the accident occurred was on private grounds of the defendant, to make the ordinance there in question apply to it would be to deprive defendant of the use of its property. This court then said, adopting the language of the court of appeals: "When a railroad company lays down its tracks in a populous city, not within any inclosure, but on ground open to the public, the mere fact that the rails are not laid over a public street or highway, but on private property of the company, ought not to be held to relieve it of its obligation to observe all reasonable municipal regulations as to the movement of its trains within the limits of the corporation." The power to regulate the speed and movement of trains in cities and towns, both on the streets and elsewhere, is recognized and reasserted in Rafferty v. Missouri Pac. R. Co., 91 Mo. 33. The state, and through it the City of Kansas, having the power to make reasonable regulations for the movement of trains within the corporate limits, there is no reason why a forced construction should be given to the ordinance in question with a view of exempting the defendant's yards from its operation. The fifth section of the ordinance, the one which regulates the rate of speed, contains no qualifications whatever. The tenth section prohibits the movements of cars, locomotives, and trains between sunset and sunrise "for any purpose whatever," except there be displayed on the moving front a light. The ordinance makes no mention of streets, public or private grounds, but applies alike to all places in the city limits." There is nothing in the language used which will admit of the exemption of the defendant's yards. The ordinance is designed as well for the protection of those engaged in handling cars as for persons not thus engaged. In Crowley v. Burlington, C. R. & N. R. Co., 65 Iowa, 658, 18 Am. & Eng. R. Cas. 56, an ordinance prohibited the running of a car or engine in the city at a greater rate of speed than six miles per hour. The plaintiff was a laborer employed in the railroad yards in cleaning snow and ice from the track, and was injured by a car, which it was claimed was being moved at a greater rate of speed than six miles per hour. The contention made there was that the ordinance was applicable only to that part of the city used by the public, but the court held it could not be so limited in its operations. The de fendant places much reliance upon the Rafferty Case, before cited, where it was held a demurrer to the evidence should have been sustained. It is worthy of mention, though not made an element in the result there reached, that the boy who was injured in that case had no right to be in the caryards or on the cars. His presence was unknown to the defendant's servants. Here the deceased was where his duties placed him, and the defendant owed him an active duty. Again, the ordinance in that case is essentially different from the ordinance in this case. There two empty box-cars were detached, and allowed to go down an incline, accompanied by a brakeman. He got down and coupled them to some standing cars, and they all moved on and struck a car on which the boy was standing. We were of the opinion that the box and other cars, when thus attached for the purpose of storage on the side track, though moving, did not constitute a backing train, propelled by steam, within the meaning of the ordinance. The accident there happened in the yards, as in the present case, but in all other essential respects the cases are wholly unlike. Our conclusion is that the ordinance does apply to the defendant in the movement of its trains in its car-yards; that the ordinance is reasonable as to the rate of speed is clear; and we think it is reasonable in requiring a light to be placed at the moving front of such a train as the one of which O'Neal had charge. These propositions as to the reasonableness of the ordinance do not appear to be disputed by appellants, and in this respect we express no further opinion upon the ordinance than that just stated. Indeed, the case was not tried by the defendant upon the theory that the ordinance is unreasonable, but upon the theory that it did not apply to the movement of cars and trains in the switchyards. Reputation of 2. Plaintiff proved by several witnesses that at and prior to the accident in question O'Neal bore the reputation among the men with whom he worked of being a careless foreman. This was followed up by evidence of Evidencevarious specific acts of negligence on his part in foreman. handling cars with his crew, and knowledge of them by the yard-master. To all this evidence the defendant objected. It was certainly the duty of the defendant to use reasonable care in selecting fit and competent persons to discharge the duties assigned to them. To show a want of such care, either in employing the servant or in retaining him, it is competent to put in evidence his general reputation of unfitness for the duties assigned to him. Wood, Mast. & Serv. $420. And for a like purpose specific acts of negligence or of incompetency, with evidence of knowledge thereof on the |