Cary v. St. Louis, Kansas City & Northern Ry. Co.

CourtUnited States State Supreme Court of Missouri
Citation60 Mo. 209
PartiesDANIEL H. CARY, Respondent, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY Co., Appellant.
Decision Date31 May 1875

Appeal from Carroll Circuit Court.

Ray & Ray, for Appellant, cited Lloyd vs. Pac. R. R. Co., 49 Mo., 199.

Hale & Eads, for Respondent, referred in argument to Calvert vs. Hann. & St. Jo. R. R. Co., 30 Mo., 242; Id., 38 Mo., 467; Gorman vs. Pac. R. R., 26 Mo., 441; Trice vs. Hann. & St. Jo. R. R., 49 Mo., 438; Biglow vs. North Mo. R. R., 48 Mo., 510; Meyer vs. North Mo. R. R., 35 Mo., 352; Lloyd vs. Pac. R. R., 49 Mo., 199; Ellis vs. Pac. R. R., 48 Mo., 231; Powell vs. Hann. & St. Jo. R. R., 35 Mo., 457.)

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Carroll Circuit Court under the provisions of the 43rd section of the act concerning “railroad companies” (Wagn. Stat., 1872, p. 310) to recover double damages for the killing of cattle belonging to plaintiff by the defendant upon its railroad.

There are two counts in the petition, but as the judgment was for the defendant on the first count, no notice thereof need be taken.

The second count charges that the engine and cars used by the defendants ran upon and killed one heifer of the plaintiff of the value of fifty dollars, and that another heifer was thereby crippled and damaged to the amount of fifteen dollars; that said cattle were killed and injured by the negligence of the agents of defendant in running said engine and cars; that at the point on said road where said cattle were injured said road was not fenced, and that it was uninclosed prairie land and where there was no crossing of a public highway of any kind, etc. The petition claimed double damages, etc.

The answer of the defendant does not deny that it is a corporation, etc.; but it does deny the other material allegations of the petition.

The case was tried by the court without the intervention of a jury.

The plaintiff introduced evidence tending to prove that the animals named in the petition belonged to the plaintiff, and that he was damaged by the killing and crippling thereof in the sum of from thirty-five to forty dollars; that the injury happened at a point on the defendant's railroad about one hundred yards east of the depot at Wakenda station, in Carroll county, on said railroad; that the railroad switch at said station extended some thirty feet east of where the injury occurred; that the train of cars inflicting the injury was at the time running about the usual speed that such trains run on said railroad; that at the place where the cattle were injured there was no public crossing of any kind; that it was on open, uninclosed lands, and the road was not fenced.

The evidence of the defendant was somewhat variant from that of the plaintiff in reference to the distance of the place where the accident occurred from the depot or station, and in reference to the distance to the eastern end of the switch from where the stock were killed.

At the close of the evidence the court at the request of the defendant made the following declarations of law:

“1st.--That if the animals in question were killed or injured within the limits of a station on its railroad, necessarily left open for the transaction of the business of the company and the accommodation of the public, then the plaintiff cannot recover unless the plaintiff shows that the killing or injury was occasioned by the actual negligence of defendant, its agents or servants in the management of the particular train that did the killing.”

“3rd--That if the animals in question were killed or injured in the open grounds of defendant, at defendant's station, and it was necessary for the transaction of business with the public, and for its convenience in the reception and discharge of freight and passengers, that such space should be left open, the plaintiff cannot recover, without showing actual negligence on the part of the defendant, its agents or servants.”

“8th--That railroad companies have the right to move and operate their trains for the transaction of their business, at such speed as they may deem proper, having due regard to the rights of the public; and if the evidence shows that the animals were killed on defendant's right of way, where its road does not run along or across a public road or street, but within the grounds of a station left open by it for the necessary transaction of its business, and for the accommodation of the public, then the same rule must apply as to animals killed or injured within such grounds, as applies to animals killed or injured at public road crossings; and in order to recover, plaintiff must show that the killing or injury in this case had been occasioned by the neglect of defe...

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25 cases
  • Campbell v. Missouri Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • March 24, 1894
    ... ... error. Crutchfield v. Railroad, 64 Mo. 255; Cary ... v. Railroad, 60 Mo. 209; Rhea v. Railroad, 84 ... Mo ... ...
  • Kleiber v. People's Ry. Co.
    • United States
    • Missouri Supreme Court
    • November 9, 1891
    ...Ackley v. Slaehlin, 56 Mo. 558; Hearne v. Keath, 63 Mo. 84; Schmieding v. Young, 57 Mo. 78; Whitsett v. Ransom, 79 Mo. 258; Cary v. Railroad, 60 Mo. 209. The supreme will grant new trial when verdict is so clearly against weight of evidence that it must have been the result of passion or pr......
  • Shell v. The Missouri Pacific Railway Company
    • United States
    • Kansas Court of Appeals
    • June 29, 1908
    ... ... COMPANY, Appellant Court of Appeals of Missouri, Kansas CityJune 29, 1908 ...           Appeal ... from ... 246; Edwards v. Railway, 66 Mo. 569; Cary v ... Railway, 60 Mo. 209; Grant v. Railway, 56 ... ...
  • Bischoff v. People's Railway Company
    • United States
    • Missouri Supreme Court
    • March 24, 1894
    ...Ackley v. Staehlin, 56 Mo. 558; Hearne v. Keath, 63 Mo. 84; Schmieding v. Young, 57 Mo. 78; Whitsett v. Ransom, 79 Mo. 258; Cary v. Railroad, 60 Mo. 209. (3) Every driving a vehicle along a public street has a right, when approaching a railroad crossing, to rely on the signals which the rai......
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