Holman v. Chicago, Rock Island & Pacific R.R. Co.

Decision Date31 May 1876
Citation62 Mo. 562
PartiesSEBRON J. HOLMAN, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Clinton Circuit Court.

Shanklin, Low & McDougal, for Appellant.

I. The fact, that defendant's employee failed to ring the bell or sound the whistle on the train that killed plaintiff's cow, is not of itself sufficient to make the company liable. (Wagn. Stat., 310, § 38; Stoneman vs. A. & P. R. R. Co., 58 Mo., 503; Karle vs. Kansas City, St. Jo. & C. B. R. R., 55 Mo., 483; Ills. Cent. R. R. Co. vs. Phelps, 29 Ill., 447; C., B. & Q. R. R. Co., vs. McKean, 40 Ill., 218; Rockford, etc., R. R. Co. vs. Linn, 67 Ill., 109; Ch. & A. R. R. Co. vs. Henderson, 66 Ill., 494.)

Wm. Henry, for Respondent.

I. When negligence is clearly shown, and an injury has actually occurred, it is reasonable prima facie to refer the injury to such acts or negligence without requiring further proof. (Johnson vs. Hudson R. R. R. Co., 20 N. Y., 65; Gt. West. R. R. Co. vs. Geddis, 33 Ill., 304; Howenstein vs. Pac. R. R. Co., 55 Mo., 33; Walther vs. Pac. R. R. Co., 55 Mo., 271; Stoneman vs. Atl. & Pac. R. R. Co., 58 Mo., 503; Owens vs. Hann. & St. Jo. R. R. Co., 58 Mo., 386.)HOUGH, Judge, delivered the opinion of the court.

This was an action to recover damages for the killing of a cow, belonging to the plaintiff, by a train on defendant's railroad in a street of the town of Cameron.

The evidence given at the trial is stated in the bill of exceptions in the following language: “The plaintiff, to maintain the issues on his part, introduced evidence tending to show, that the bell was not rung, nor the whistle sounded on the train mentioned in his statement, as it approached and ran over the cow in controversy; that the cow was killed on defendant's railroad on a public traveled street of the town of Cameron, in Shoal township, by a train on said railroad, and that said cow was worth thirty-five dollars. The defendant introduced one Kiley, who testified that he was the conductor on said train, and that the bell was rung and the whistle sounded. This was all the evidence offered.”

It will not be necessary to notice the instructions given and refused. There was a verdict and judgment for the plaintiff, and the defendant has brought the case here by appeal.

The statute in relation to railroad corporations, which requires the bell on the locomotive to be rung, or the steam whistle to be sounded, before reaching and while crossing any traveled public road or street, provides a penalty for the neglect of such requirement, and further declares that the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect. Conceding that the servants of the defendant neglected to ring the bell or sound the whistle, the question is, whether there is any evidence tending to show that the cow was killed by reason of such neglect.

In the case of Stoneman vs. Atl. & Pac. R. R. Co., 58 Mo., 503, it was said, on the point in judgment, that “the court had no right to declare as a matter of law, that the jury had nothing to find but the killing of the animal at the crossing of a public highway, and the failure of the company to have the bell rung...

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