Atterberry v. Wabash R. Co.

• Decision Date: 30 May 1904
• Parties: ATTERBERRY v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

85 S.W. 114

110 Mo. App. 608

ATTERBERRY v. WABASH R. CO.^*

Kansas City Court of Appeals. Missouri.

May 30, 1904.

On Rehearing, November 28, 1904.

RAILROADS — KILLING OF CATTLE — STATUTORY SIGNALS — PRIMA FACIE CASE — PLEADING — ELECTION.

1. A railroad is liable for killing cattle at a public crossing where its servants saw, or by the use of due care might have seen, the cattle upon or approaching the crossing in time to have safely stopped the train.

2. Under Rev. St. 1899, § 1102, providing that damages may be recovered for injury to cattle by an engine, where the bell is not rung or the whistle sounded, unless the failure to signal was not the cause of the injury, a prima facie case is made by plaintiff by showing that his cattle were injured at a public crossing, and that the bell was not rung or the whistle sounded; and the burden is upon defendant to show that the failure to signal was not the cause of the injury, unless such fact is disclosed by plaintiff's own evidence.

3. Where a statement for the killing of cattle was in three counts — the first charging common-law negligence in operating the train, the second the failure to ring the bell or sound the whistle as required by statute, and the third the failure to fence the place where the cattle went upon the track — plaintiff should not have been compelled to elect at the opening of the trial on which count he would proceed.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by B. C. Atterberry against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Joseph Park & Son, for appellant. Geo. S. Grover, for respondent.

SMITH, P. J.

This is a common-law action, which was commenced by plaintiff against defendant before a justice of the peace to recover damages for the negligent injury by the latter of three cows, the property of the former. The evidence tended to prove that the plaintiff's cows were injured within the switch limits of defendant's station at the village of Atlanta. When the defendant's train approached within about 400 feet of the public crossing at that station the plaintiff's cows, 12 in number, were being driven east on a street leading over the crossing, and were strung out for about 75 feet; the defendant's engineer sounded the whistle, and continued to do so until the engine collided with the first cow, which had gone upon the crossing, and stopped in the center of the track, 100 feet ahead of the approaching locomotive. The other two animals went upon the track at from 40 to 80 feet ahead of the approaching engine, which struck and injured them. The steam was shut off on the engine when the last cow entered upon the track. The train, consisting of an engine, 38 freight cars, and a caboose, ran about 450 feet after striking the last cow before it stopped.

The injury to plaintiff's cows occurring within defendant's switch limits at Atlanta, it devolved on plaintiff, in order to entitle him to a recovery, to show that the actual negligence of defendant was responsible therefor. In a case of this kind the law raises no inference of negligence from the mere fact that the plaintiff's cows were injured on defendant's track. The defendant's servants in charge of its train discovered the plaintiff's cows approaching the track when it was 400 feet away from the crossing where the collision occurred. They sounded the stock alarm sharply and continuously, and to this it seems the plaintiff's cows paid no heed, but proceeded to cross the defendant's track. All the defendant's servants could do when they discovered said animals in the vicinity of its track, headed towards it, was to sound the stock-alarm whistle. They had the right to presume that the cows, on hearing this and seeing the approaching train, would turn back, or at least deflect from their course; and when they discovered that the animals had paid no attention to the signals, but were bent on crossing the track, the train was then so close to them that it was impossible to stop it in time to avert the collision. It does not appear from any evidence that the distance the cows were in advance of the train when first seen on the track, or about to go upon it, was such that defendant's trainmen could have stopped such train in time to have averted the fatal collision. The train was that of a heavy freight. It was not one that was required to stop at Atlanta. It was not, at the time of the collision, running at an unlawful rate of speed. There was no evidence which tended to show that defendant's trainmen, after discovering plaintiff's cows entering upon the crossing, could have stopped the train within the 400 feet of intervening track. The steam on the engine was shut off before the cows that were struck by it went on the track, and, notwithstanding this, the train ran to where the last cow was struck, and 450 feet further on, before it could be stopped, so that it would appear from this, plain enough, that the train could not have been stopped within the 400 feet distance between where the cows were discovered and where they were struck. It is almost a matter of common knowledge that a train consisting of a freight engine, caboose, and 38 freight...