Bowman v. Chicago & Alton R.R. Co.

• Decision Date: 30 April 1885
• Citation: 85 Mo. 533
• Court: Missouri Supreme Court
• Parties: BOWMAN v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

85 Mo. 533

BOWMAN

v.THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Louisiana Court of Common Pleas.--HON. ELIJAH ROBINSON, Judge.

AFFIRMED

Macfarlane & Trimble and W. H. Morrow for appellant.

(1) The ordinance regulating the rate of speed of defendant's engines and trains, and imposing a penalty for running at a greater rate than that prescribed by ordinance did not make a violation of such ordinance negligence. The penalty was the only consequence which the law imposed. Brown v. Railroad, 22 N. Y. 191, and authorities cited. (2) The ordinance had reference to running of engines and trains over the streets and public grounds of the city and not to the working of trains by defendant on its own yard and depot grounds. The necessity of the police regulation could extend no further than the streets and public grounds of the city. Cooley on Const. Lim. 578; Morris v. Railroad, 58 Mo. 78; Swearingen v. Railroad, 64 Mo. 73; Robertson v. Railroad, 64 Mo. 412; Meyers v. Railroad, 7 Am. & Eng. Ry. Cases, 406. (3) The ordinance prohibited owners from allowing hogs to run at large in the city, and hogs running at large were declared a nuisance. Negligence will be imputed to plaintiff whatever his care. Munger v. Railroad, 4 N. Y. 357; Corwin v. Railroad, 13 N. Y. 42; Railroad v. Stephenson, 24 Ohio St. 58; Railroad v. Howard, 11 Am. & Eng. Ry. Cases, 488; Spencer v. Railroad, 25 Iowa, 139; Turner v. Railroad, 78 Mo. 578. (4) Plaintiff, being chargeable with contributory negligence, was not entitled to a recovery unless defendant knew or by reasonable care might have known, that the hog was in a position of danger, and was thereafter guilty of negligence. The rate of speed, without such knowledge and subsequent negligence, would not authorize a recovery. Liddy v. Railroad, 40 Mo. 519; Craig v. City of Sedalia, 63 Mo. 417; Burnham v. Railroad, 56 Mo. 338; Karle v. Railroad, 55 Mo. 476; Swigert v. Railroad, 75 Mo. 475.

M. G. Reynolds for respondent.

(1) The instructions given on the part of plaintiff are correct. The first in substance declares that if the engine and train of cars were run at a speed not allowed by ordinance, and by reason of such unlawful running the hog was killed, the defendant is liable. 2 Thompson on Neg., p. 904, sec. 27, and p. 1232, sec. 5; Karle v. Kansas City & C. Co., 55 Mo. 476. The second is to the effect that although the hog was at large in violation of an ordinance, but without the knowledge and consent of plaintiff, and she had been up in a good pen, the verdict should be for plaintiff if they believe she was killed by reason of the defendant running at a rate of speed prohibited by ordinance. Spence v. C. & N. W. Ry. Co., 25 Iowa 139; Fernow v. Dubuque & S. W. Ry. Co., 22 Iowa 528; Stewart v. C. & N. W. Ry. Co., 27 Iowa 282; Fritz v. Milwaukee & St. P. Ry. Co., 34 Iowa 337; Stewart v. B. & M. Ry. Co., 32 Iowa 561. The third tells the jury that as to whether they made any attempt to stop the train might be considered with all the other facts and circumstances, and if they believe they could have stopped the train and failed to do so, defendant was liable. Brown v. H. & St. Jo. Ry. Co., 50 Mo. 461; Karle v. Kansas City & C. Co., 55 Mo. 476. (2) The refused instructions asked by defendant do not declare the law applicable to the case. (3) The demurrer to the evidence was rightly overruled. Renick v. Walton, 7 Mo. 292; Fulkerson v. Baslinger, 9 Mo. 838; Watts v. Douglas, 10 Mo. 676; McPheeters v. Railroad, 45 Mo. 24.

PER CURIAM.

This suit was instituted before a justice of the peace upon the following statement: “Plaintiff states that the defendant is a corporation, etc., and was on the _______ day of June, 1882, engaged in operating a railroad in this state, and for a cause of action, says that on the _______ day of June, 1882, he was the owner of one large black and white sow; that on said day defendant, by the negligence, carelessness, and unskilfulness of its servants, agents, and employes in running of its engine within the limits of the city of Louisiana, Missouri, at an unlawful rate of speed, and in violation of an ordinance, number eight hundred and ninety-six, duly passed and approved on December 2, 1879, which said ordinance directed and required that no engine, car, or train of cars shall be run at a greater rate of speed than six miles per hour within the limits of said city; that by reason of the negligence of the agents and employes of the defendant in running its engine within the limits of said city at a rate of speed much greater than six miles per hour, and further, by reason of the agents and employes then operating and running said engine, not attempting to stop said engine, the sow aforesaid was by them run over and killed near the depot of the St. Louis, Keokuk & Northwestern Railway Company, in the said city of Louisiana, Missouri, Buffalo township; that said sow was of the value of twenty dollars, for which plaintiff prays judgment.”

There was judgment before the justice for plaintiff, an appeal to the common pleas court and on a new trial there, judgment again entered for plaintiff; from which the defendant appealed to this court. On the trial before the court of common pleas, the plaintiff testified to the ownership of the sow, and then read in evidence an ordinance of the city of Louisiana as follows:

“SECTION 1. No locomotive engine, railroad passenger, freight or train of cars used upon railroad tracks, shall be driven, propelled, or run upon or along any railroad track within the limits of the city of Louisiana at a greater rate of speed than six miles per hour.

SEC. 2. Any railroad company or corporation who shall by themselves, their agents or employes, violate or fail to observe any of the provisions of the foregoing section shall for each failure or violation be fined in a sum not less than twenty-five dollars.”

Plaintiff then offered a witness who testified that a switch engine of defendant's road backed a train of cars at a greater rate of speed than six miles per hour, and the same struck and killed the sow in question; also, that if said train had been running at no greater rate than six miles per hour, the train could have been stopped in time to have prevented striking the hog.

Defendant thereupon offered in evidence an ordinance of said city, as follows:

“SECTION 1. It shall not be lawful for any hogs of any age to be allowed to run at large within the limits of the city, and any hog or pig found to be running at large are deemed and declared to be a nuisance.”

Defendant then offered two witnesses who testified they saw the train when it struck the hog, and it was not running as fast as six miles an hour. Also, evidence tending to prove that the train could have been stopped, but it was on a curve and a signal to stop could not have been seen by the engineer in...