Boone v. The Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 232
• Parties: JOHN BOONE, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 232

JOHN BOONE, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

GEORGE S. GROVER, for the appellant.

I. The demurrer to the evidence should have been sustained. It was shown by the testimony that the injury could not have been avoided. Upon such a state of facts, there could be no recovery upon the allegation of negligence in the management of the train. Wallace v. R. R., 74 Mo. 597; Bell v. R. R., 72 Mo. 61, and cases cited.

II. The court admitted incompetent testimony. The admission of evidence concerning the failure to fence was error, as it changed the cause of action from common law to the statute and enabled plaintiff to introduce proof concerning a cause of action not alleged. Luckie v. R. R., 67 Mo. 246 and cases cited; Waldheir v. R. R., 71 Mo. 514, and cases cited.

WOODSON & WOODSON, for the respondent.

I. After the expiration of time agreed upon within which to file bill of exceptions, the bill could not be filed even by agreement of parties, except with the concurrence of the court and entered of record. Such entry could not be made after adjournment of court entered of record, by reconvening it with one of opposing attorneys, the other side being absent and not consenting. Gill v. Scruggs, 79 Mo 187; Lone Association v. True, 79 Mo. 193; McCost v. Cunningham, 75 Mo. 279.

II. There was evidence to sustain the verdict, and it tended to show that the injury could have been avoided. This court will not reverse on the ground that in an action as at common law, a verdict is against the weight of evidence where there is not an absolute failure thereof. Russell v. Berkstessen, 77 Mo. 417; Hodges v. Black, 76 Mo. 537; Hamilton v. Berry, 74 Mo. 83.

III. It is not error to refuse an instruction when those given properly present the law of the case. Wilson v. R. R., 60 Mo. 184. Any negligence in the case may be shown. Calvert v. R. R., 38 Mo. 467; Goodwin v. R. R., 75 Mo. 75; Syms v. R. R., 75 Mo. 167.

PHILIPS P. J.

This action was begun before a justice of the peace, and it is to recover single damages against the defendant, a railroad corporation, for killing a cow, the property of plaintiff. The statement filed with the justice charged that defendant, by its agents and servants, carelessly and negligently, with its engine and cars, ran over and killed the cow, in Agency township, Buchanan county, etc. On appeal to the circuit court, plaintiff recovered judgment in the sum of thirty dollars, the value of the cow. Defendant has brought the case here by appeal.

The plaintiff's evidence tended to show that the cow came upon defendant's road at a crossing, but whether it was a public highway or not does not affirmatively appear. When the train approached this crossing the engineer slackened its speed. There is some conflict in the testimony of witnesses as to whether the cow then passed off the track, or whether she ran down it. At all events plaintiff's evidence tended to show that the cow ??went down the railroad track at a rate of speed much aster than that at which the train moved; that the cow was in full view of the engineer and fireman, and that instead of trying to avoid the collision the engineer let on the steam and ran the cow down and killed her, when he could easily have avoided it.

The testimony of the engineer and fireman tended to show that when the train slackened up at the crossing, they supposed the cow left the track; and when she reappeared on the track they were so near her that it was not possible for the engineer to stop his train in time to avoid the injury.

The plaintiff, also, against the objection of defendant, made proof tending to show that the point in question was where defendant was required by law to erect and maintain a fence on the sides of its road, and that it had neglected to do so.

The defendant asked quite a number of instructions, but the court rejected them, and of its own motion gave the following instructions:

" 1. If the jury believe from the evidence, that the plaintiff's cow was killed through the negligence of defendant's agents and servants in charge of the train in proof, they will find for the plaintiff, and assess his damages at the value of the cow at the time of the killing."

" 2. Negligence, as used in the foregoing instruction means that the agents or servants of defendant, in the management of said train, were guilty of some act resulting in the injury complained of, which reasonable prudence would dictate should not have been done under the circumstances of this case, or the omission by them to perform some act which reasonable

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