Persinger v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 196
• Parties: PERSINGER v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 196

PERSINGER

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

Supreme Court of Missouri.

April Term, 1884.

Appeal from Daviess Circuit Court.--HON. J. C. HOWELL, Judge.

AFFIRMED.

Wells H. Blodgett and George S. Grover for appellant.

The court erred in failing to instruct the jury that plaintiff could not recover on the first count, as there was no evidence connecting the failure to give the statutory signals with the injury. Holman v. Railroad Co., 62 Mo. 562; Wallace v. Railroad Co., 74 Mo. 597; Braxton v. Railroad Co., 77 Mo. 455. As to the second count, which states an action at common law for negligence in the management of the train, even though the statutory signals were not given, yet if the engineer could not have stopped the train with safety, after he discovered the dangerous situation of the animal, he was not bound to do so. Pryor v. Railroad Co., 69 Mo. 218; Bell v. Railroad Co., 72 Mo. 61. The instruction given for plaintiff was erroneous, because it did not direct the attention of the jury to the different counts, or inform them on which one it authorized them to find a verdict. A general verdict upon a petition containing two or more counts, each stating a separate cause of action, is erroneous. Mooney v. Kennett, 19 Mo. 552; Clark v. Railroad Co., 36 Mo. 202; State v. Dulle, 45 Mo. 271; Brownelt v. Railroad Co., 47 Mo. 239; City v. Allen, 53 Mo. 44; Owens v. Railroad Co., 58 Mo. 394.

Tillehan & Brosius for respondent.

SHERWOOD, J.

Action before a justice of the peace. Statement as follows:

“Plaintiff states that defendant is a corporation, duly organized in pursuance of law, and that on the 7th day of July, 1880, it was the owner and occupier of a certain railroad, with the cars and locomotives thereto belonging, known as the Wabash, St. Louis & Pacific Railroad, running from the city of St. Louis, in the State of Missouri, to the city of Omaha, in the State of Nebraska. That on said day, in Benton township, Daviess county, Missouri, the defendant, by its agents, officers and servants, while running its said locomotives and cars upon said railroad, caused the same to approach and pass over a traveled public road, being a crossing of said railroad in said township of Benton, Daviess county, Missouri, without ringing the bell of said locomotive, or sounding the steam whistle thereon, as required by section 806 of article 2, page 138 of Revised Statutes of the State of Missouri. That by reason of such neglect of defendant, its officers, agents and servants, without any fault or negligence on the part of the plaintiff, the said locomotive struck one brindle or roan cow belonging to the plaintiff and killed and wounded the same, to plaintiff's damage $35, for which he prays judgment.

Plaintiff further states that defendant, on or about the 7th day of July, 1880, in Benton township, in the county of Daviess, in the State of Missouri, did by its agents, servants, locomotive and railroad cars negligently and carelessly run over, maim and kill certain cattle belonging to the plaintiff, to-wit: one cow of the value of $35, for which he asks judgment.”

There was a conflict of evidence on the point whether the statutory signal was given the required distance before the train reached the crossing, and there was no evidence which connected the failure to perform the statutory duty, if there was such a failure, and the killing of the cow; nor did it appear in evidence that the allegations of the second count were supported. The court refused an instruction in the nature of a demurrer to the evidence, asked by defendant, and gave this instruction on behalf of plaintiff of which defendant makes complaint:

“If the jury believe from the evidence that the defendant, by its agents and servants, in running the train in question, failed to ring the bell at a distance of eighty rods from where the cow was struck and to keep said bell ringing until said train reached said crossing, or to blow the...