Alexander v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 494
• Parties: ALEXANDER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 494

ALEXANDER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Geo. W. Easley for appellant.

O. J. Chapman for respondent.

How else could respondent show that the killing was the result of the failure to ring or blow, except by circumstances? The testimony as to the unusual rate of speed of the train, and that the steer was young, strong, active and healthy, were circumstances from which the jury could fairly and rationally conclude that the killing was the result of the failure to ring the bell or blow the whistle. Holman v. Railroad Co., 62 Mo. 562.

RAY, J.

This was an action for damages, brought by the plaintiff before a justice of the peace, in Caldwell county, for the killing of his steer, by the defendant, at a public crossing on its railroad, in consequence of a failure to ring the bell or sound the whistle, as required by statute. The plaintiff had judgment before the justice and also in the circuit court, from which the defendant has appealed to this court.

On a trial before a jury, the plaintiff, to maintain the issue, 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 steer in controversy; that the steer was killed on defendant's railroad, on the crossing of a public highway, in Gomer township, Caldwell county, by a train on defendant's road, and that the steer was worth $35; that the steer was on the crossing with about forty or fifty others, and that none of the others were injured; that the steer was about four years old, and a strong, healthy, active animal; that the train was a passenger train, behind time, and was running at a higher rate of speed than usual; but the rate of speed at which it was running was not shown. This was all the evidence offered in said cause.

The respondent asked and the court gave the following instructions, against the objections of the appellant:

1. The jury are to determine from all the circumstances connected with the killing of plaintiff's steer, whether said steer was killed at the time and place alleged in consequence of the defendant's failure to ring its bell or blow its whistle on engine.

2. That it is the duty of the defendant, when approaching a crossing of a public road, to ring the bell or sound the whistle on the engine for at least eighty rods before reaching such crossing, continuously, and if the jury find defendant did not perform its duty in this case, and that in consequence of such failure to perform its duty the steer was killed, they must find for the plaintiff for the value of his steer.

The appellant then asked the following instruction: “The jury are instructed that, under the pleadings and evidence in this cause, the verdict must be for the defendant.” Which was refused and exceptions saved.

The court then gave the following instruction: “Unless the jury find from the evidence that the injury to plaintiff's steer was caused by the failure of defendant's employes to ring the bell or sound the whistle, on the train, they must find for defendant, and the jury are instructed that evidence that the animal was killed at a crossing, and that such signals were not given, is not sufficient. Such evidence to warrant a recovery, must be supplemented by other evidence that the failure to ring the bell or sound the whistle caused the injury.”

Upon this statement, evidence and instructions, the jury found a verdict for the plaintiff, and there was judgment accordingly. In due time defendant filed its ...