Cathcart v. The Hannibal & St. Joseph Ry. Co.
| Decision Date | 26 October 1885 |
| Citation | 19 Mo.App. 113 |
| Parties | JOHN CATHCART, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILWAY CO., Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.
Reversed and remanded.
The facts are stated in the opinion.
THOMAS E. TURNER and STRONG & MOSMAN, for the appellant.
I. Defendant's demurrer to the evidence should have been sustained. There was no proof that the animal was struck on the crossing, nor that it was struck by the engine, nor that defendant's servants failed to ring the bell. R. R Co. v. Seeley, 24 Kansas 266.
II. The court erred in giving instruction two asked by plaintiff. It erroneously required that both the bell should be rung and the whistle should be sounded. Sect. 806, Rev Stat.; Turner v. R. R. Co., 78 Mo. 579. It did not require the jury to find that the animal was struck by the engine. It did not, after defining a prima facie case, give the jury any direction as to what their finding should be, whether for plaintiff or defendant. It is not cured by defendant's instruction; they are inconsistent. Goetz v. R. R. Co., 50 Mo. 472; State v Nanert, 2 Mo.App. 295. The error is vital, because the only negligence alleged was a failure to give the statutory signals.
III. The court erred in refusing instruction four asked by defendant. Acts 1881, p. 79; Zimmerman v. R. R. Co., 71 Mo. 488.
IV. The court erred in overruling defendant's motion for a new trial. Cases cited supra.
O. J. CHAPMAN, for the respondent.
I. The court did not err in refusing instruction four asked by appellant. There was no evidence to base such an instruction upon, and in such case it is properly refused. State v. Gerber, 80 Mo. 94; Chubback v. H. & St. Jo. Ry. Co., 77 Mo. 591. It was a mere abstraction under the pleadings and evidence, and should be read in connection with the other instructions in the case. St. L., K. C. & N. Ry. Co. v. Cleary, 77 Mo. 634.
II. While instruction two, given for plaintiff, may be technically erroneous in the use of the little word " or," still the court gave instructions one and two for defendant, which properly declare the law on the same question. The instructions should be taken as a whole, and the fact that one of them is partial or misleading, is no ground for reversal, where the instructions taken as a whole, fairly present the case. In Edwards v. Chicago, Rock Island & Pacific Railway Company (76 Mo. 309), an instruction was approved almost identical with this. And even if faulty, still the verdict, if right, should stand. Noble v. Blount, 77 Mo. 235; Morris v. H. & St. Jo. R. R. Co., 79 Mo. 367. The use of the word " or" is proper, divided and punctuated as it is. The instruction is divided into two clauses, in which the jury are told, that if they find that defendant failed to do one or another of two things, then they will find for plaintiff. They must do one or the other.
III. The court properly overruled the demurrer to the evidence. When there is any evidence to support the plaintiff's case the court cannot withdraw it from the jury. State v. Turner, 63 Mo. 436; Alexander v. H. & St. Jo. R. R., 76 Mo. 494; Cook v. Same, 63 Mo. 397; Holiday v. Jones, 59 Mo. 482.
This is an action against the defendant railway company, to recover damages for killing a steer, the property of the plaintiff. The averments of the petition are, that the animal was killed by a locomotive or train of cars at a point where defendant's track crosses a public road; and that defendant neglected to sound the whistle or ring the bell on its engine as by statute required on approaching said crossing. Plaintiff recovered judgment, from which defendant has appealed.
I. It is claimed by respondent in his brief that this is the same case reported in 76 Mo. 494; and that, inasmuch as the evidence in the pending case is the same as that in the case reported, and that case was reversed solely on the ground that the bill of exceptions failed to show proof of ownership of the steer by plaintiff, we should in the pending action regard all the questions here raised as to the sufficiency of evidence, aside from the question of ownership, as res judicata.
We do not think this position tenable. There is nothing in the record before us to show, aside from the mere title, and some similarity of statements, that the cases and proofs are identical. On the contrary it affirmatively appears that the instructions in the two cases are radically different, and there is persuasive evidence that this suit was pending at the very time the case was under consideration in the supreme court. The opinion in 76 Mo. was rendered at the October term, 1882. Not only from the provisions of the statute regulating practice in the supreme court, but from the known history of delayed cases there, that case was necessarily pending in the supreme court long prior to the October term, 1882. Whereas the record shows that this suit was begun in April, 1882, and was pending in the circuit court in October, 1882, at the time when the case in 76 Mo. was submitted or decided.
What the evidence was in that case we are not advised by the report, further than that it tended to establish certain facts. We have no judicial knowledge that the evidence in the two cases was substantially alike. This case must stand on its own merits, and be determined on the record before us. The decision in the case reported is only binding on us in so far as any question therein determined may again arise in the case at bar.
II. Appellant insists that the demurrer to the evidence, interposed at the conclusion of plaintiff's evidence, should have been sustained. The points urged under this head are, that the evidence failed to show that the steer was killed by defendant, and second, that it failed to show that the signals were not given.
We are satisfied that there were ample facts and circumstances in proof to have warranted the jury in finding that the defendant's cars did the injury. Especially must we decline to interfere in this particular after the defendant, by its own testimony, materially aided the plaintiff's proof as to the corpus delicti. Its witnesses showed that at or about the time in question, there were cattle in and about the crossing, and that the engineer saw them, and was blowing the whistle to scare them off, and the engineer admitted that he did kill a calf there. The only animal found injured at the point, and soon after the car passed, was the plaintiff's steer, injured in such manner as to warrant the jury in believing it was occasioned by collision with the car.
The second objection to the evidence is more formidable. The statute requires that the railroad company, on approaching the crossing of a public road with its cars, locomotives etc., shall at the distance of eighty rods from such crossing, ring the bell on the engine, and continue to ring it until the train has passed the crossing, or to sound the whistle at such distance, and at intervals until it crosses the road. It is...
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