Terry v. St. Louis & San Francisco Railway Co.

• Decision Date: 15 November 1886
• Citation: 1 S.W. 746,89 Mo. 586
• Parties: Terry, By Next Friend, v. The St. Louis & San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

1 S.W. 746

89 Mo. 586

Terry, By Next Friend, v. The St. Louis & San Francisco Railway Company, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Phelps Circuit Court. -- Hon, C. C. Bland, Judge.

Reversed.

John O'Day for appellant.

The statute does not require both the whistle to be sounded and the bell rung. It is sufficient if either is done, and for aught that appears in the counts in the petition one or the other may have been done. Van Note v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 580. Under the doctrine laid down in this state the second count, to state a cause of action, should have alleged that neither the whistle was sounded, nor the bell rung, and the same may be said of the third count.

A. Corse for respondent.

Black J. Henry, C. J., absent.

OPINION

Black, J.

The plaintiff, a minor twelve years of age, who sues by his next friend, was injured by the defendant's engine and cars whilst driving an ox team and wagon along a public road and over the railroad crossing. The court directed a verdict for the defendant on the first and fourth counts of the petition and they need not be noticed further than to say, the first is based upon alleged negligence in employing an incompetent engineer, and the second for failure to erect a sign board at the crossing.

There was a motion in arrest of judgment on the second and third counts which was overruled, and this presents the first assigned error. The second count avers that it was the duty of the defendant to cause a bell, placed upon the engine, to be rung at a distance of eighty rods, at least, from the crossing and to keep the same ringing until the train passed the public road; that the defendant, on the occasion in question, neglected to ring the bell, by reason of which plaintiff was injured. The third count alleges a like duty with respect to sounding the whistle, and that defendant failed to sound a steam whistle, by reason of which he was injured, etc. By the act of March 26, 1881 (Acts of 1881, p. 79), it is not necessary that the company should both ring a bell and sound a whistle at these crossings. It is only made the duty of the company to either ring the bell, or sound the steam whistle. The law will be complied with by doing either the one or the other, at the distance, and in the manner pointed out by the statute. The second count is, therefore, deficient in not stating that the defendant...