Roberts v. Wabash R. Co.

• Decision Date: 22 May 1905
• Citation: 87 S.W. 601,113 Mo. App. 6
• Parties: ROBERTS v. WABASH R. CO.
• Court: Missouri Court of Appeals

87 S.W. 601

113 Mo. App. 6

ROBERTS v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

May 22, 1905.

RAILROADS — INJURIES AT CROSSINGS — FAILURE TO GIVE ALARM — EVIDENCE — PRESUMPTIONS — DAMAGES — KILLING OF HORSE.

1. In an action against a railroad for the killing of a horse, caused by the failure of defendant's engineer to ring the bell or sound the whistle at a crossing, testimony that witness did not think the whistle was sounded, and, if it was sounded or the bell rung, he did not hear it, although he was "right there," was sufficient evidence of the failure to ring the bell and sound the whistle to take the case to the jury.

2. In an action against a railroad for the killing of a horse, caused by the failure of defendant's engineer to ring the bell or sound the whistle at a crossing, evidence that the bell was not rung or the whistle sounded makes a prima facie case.

3. The presumption that the servants of a railroad performed their duty of ringing the bell and sounding the whistle at a crossing does not obtain where there is evidence that such duty was not performed.

4. In an action against a railroad for the killing of a horse and the destruction of harness, a verdict of $17 was not excessive, where plaintiff testified that the horse was worth $40, although one of his witnesses stated that she was worth but $5.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by J. H. Roberts against the Wabash Railroad Company. From a judgment for plaintiff, rendered on appeal from a justice's judgment, defendant appeals. Affirmed.

Geo. S. Grover and N. T. Gentry, for appellant. Thos. S. Carter and Gillespy & Conley, for respondent.

BROADDUS, P. J.

This suit was begun before a justice of the peace to recover $60 damages for the killing of plaintiff's mare, and $4 for the destruction of the harness the mare had on at the time she was killed. The plaintiff drove his mare in a buggy from the country to the town of Sturgeon on September 2, 1903. He unhitched the animal from his vehicle, and tied her, with the harness on, to a post about 100 yards distant from defendant's track. By some means she managed to get loose, and started over defendant's track at a public crossing in the town. While on the crossing, or near it, defendant's train approached at a rapid rate of speed and struck the mare, killing her, and at the same time destroying the harness. The plaintiff seeks to recover upon the ground that defendant's engineer in charge of the train did not ring the bell or sound the whistle. On the other hand, defendant asserts that there was evidence that the bell was rung and the whistle sounded, and that there was no evidence to the contrary. Two witnesses — Shearer and Cook — testified for plaintiff on this point. The former stated that he did not hear the bell or the sounding of the whistle. The latter was asked to state whether the whistle was...