20 Mo.App. 477 (Mo.App. 1886), Welch v. The Hannibal & St. Joseph Ry. Co.

Citation:20 Mo.App. 477
Opinion Judge:HALL, J.
Party Name:WILLIAM R. WELCH, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILWAY COMPANY, Appellant.
Attorney:THOS. E. TURNEY, and STRONG & MOSMAN, for the appellant. O. J. CHAPMAN, for the respondent.
Case Date:February 08, 1886
Court:Court of Appeals of Missouri
 
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Page 477

20 Mo.App. 477 (Mo.App. 1886)

WILLIAM R. WELCH, Respondent,

v.

THE HANNIBAL AND ST. JOSEPH RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1886

APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action for damages for the killing of the plaintiff's cow, through the alleged negligence of defendant's servants and agents in running its " cars and locomotive." The evidence introduced by plaintiff tended to show that his cow was killed by one of defendant's engines on the main track of its railroad within the switch limits of the town and station of Breckenridge; that the cow went upon the track when the engine was from one hundred and twenty to three hundred feet away, and that she could have been seen from the point at which she went upon the track for a quarter or a half mile from the direction from which the engine and cars were approaching; and that the bell was not rung; that the whistle was not sounded; that no effort was seen to be made to slack in the speed of the train, and that the train was running at the rate of twelve miles per hour.

For the plaintiff the court gave the following instruction:

" 1. If the jury believe from the evidence that the cow in question was killed by a passing train of cars on defendant's road, and that before she was killed she was in plain view of the servants and agents of the defendant running said train, and that she was seen on defendant's track or could have been seen by the use of ordinary care and attention in time to have slackened the speed of the train and avoided the accident and they did not do so, this was such negligence as to render the defendant liable."

For the plaintiff the court gave only two other instructions, one telling the jury that they might take into consideration all the facts and circumstances in evidence in determining the defendant's negligence; the other telling the jury that they were the sole judges of the credibility of the witnesses, and so forth.

For the defendant the court instructed the jury that no rate of speed of the train would alone make the defendant liable for the killing of plaintiff's cow.

And the court also gave for the defendant the following instruction:

" 3. And the jury is further instructed, that unless the plaintiff has shown by a...

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