Cornett v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 23 November 1914 |
| Citation | 171 S.W. 15,184 Mo.App. 463 |
| Parties | J. M. CORNETT, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. Fred Lamb, Judge.
Judgment reversed.
C. C Bigger for appellant.
(1) Crossing signals are intended solely for the protection of persons and property at the crossing and a failure to give a crossing signal will not render the company liable for animals injured if not at the crossing. 33 Cyc. 1214, text and note 32 with cases cited; Wasson v. McCook, 80 Mo.App. 483; Degonia v. Railroad, 224 Mo. 592; Bell v. Railroad, 72 Mo. 58; 2 White on Personal Injuries, sec. 964; Evans v. Railroad, 62 Mo. 49; Wasson v. Railroad, 70 Mo.App. 393; Burger v Railroad, 112 Mo. 238; Rohback v. Railroad, 43 Mo. 187; Melton v. Railroad, 99 Mo. 287. (2) The instruction in the nature of a demurrer should have been given for the further reason that plaintiff's own act in opening the gates and leaving them open at a farm crossing maintained solely for his convenience by the defendant caused the accident or, to say the least, it directly contributed as a cause to the killing of his cow. Dickenson v Railroad, 103 Mo.App. 332; 33 Cyc. 1237; Herrington v. Railroad 71 Mo. 386.
A. L. Pratt and E. B. Fields for respondent.
(1) Defendant's instructions were rightly refused. If the engineer or fireman could see the cow and did see her approaching the track, they should have taken notice that she was likely to go on the track and they should have governed themselves and the engine accordingly. Martin v. Railroad, 175 Mo.App. 464; Young v. Railroad, 79 Mo. 336, 340. (2) This is a proceeding before a justice, and the pleadings were sufficient to permit the introduction of this testimony and recovery thereon. Windle v. Railroad, 168 Mo.App. 596, and cases cited.
--Plaintiff brought suit before a justice of the peace for the negligent killing of a cow at a private railroad crossing on his farm in Linn county. A trial in the circuit court on appeal resulted in a judgment for plaintiff and the defendant railroad company appealed.
The railroad, which runs north and south over plaintiff's farm, was enclosed with lawful fences and was crossed by a private farm crossing maintained by defendant for the use and benefit of plaintiff. It is admitted that the crossing, fences, cattle guards and crossing gates were of lawful construction and in good repair. Plaintiff pastured cattle on the land lying west of the railroad and in the mornings and evenings drove them over the crossing to his land east of the road where he had a well and facilities for watering stock. On the evening in question he opened the crossing gates and the cattle at the west gate, being in need of water, crossed over voluntarily to the watering place on the east side. Plaintiff left both gates open and stood on guard until the cattle had slaked their thirst and were in condition to be returned to the pasture when he proceeded to the barn lot to drive them back. While thus proceeding he heard a train coming from the north and, looking up, saw one of his cows on the crossing. The inference is strong that this animal was not at the west gate when the gates were opened but was on her way to the well. The train was a heavy freight train and approached around a curve and through a cut and, according to the testimony of the engineer and fireman, the crossing was 500 feet distant when it became visible from the engine cab. The fireman first saw the cow and warned the engineer who immediately sounded the whistle (giving the usual stock signals), shut off steam and applied the air brakes. The train slackened speed but could not be stopped in the intervening space and as the cow did not clear the track she was struck by the engine and killed.
Plaintiff admits that the stock signals were given but states facts tending to show that the cow was visible to the operators of the engine for a distance of over 1000 feet, and that no effort was made to stop or reduce speed. There is also evidence to the effect that the engineer failed to give the statutory signal for a public crossing some distance north of the cut. This evidence is contradicted by the engineer and fireman but for the purposes of the demurrer to the evidence, which we think should have been given, we shall consider the evidence in its aspect most favorable to the pleaded cause and shall assume that no signal was given for the public crossing, and that when the engine reached the point from which the first view of the private crossing was afforded, the engineer could have seen the cow on the track and avoided the injury by stopping the train. The gravaman of the action is negligence in the operation of the train. Negligence, as has often been said, is a breach of duty which one man owes to another and where there is no duty there can be no actionable negligence. [Coin v. Lounge Co., 222 Mo. 488, 121 S.W. 1.]
The failure of the engineer to whistle for the public crossing was no breach of duty towards plaintiff or his property at the private crossing on his land. The statute requiring such signals to be given is intended only for the protection of persons and property at public crossings and the failure to give such signal will not render the company liable for animals injured at other places on the track. [Wasson v. McCook, 80 Mo.App. 483; Degonia v. Railroad, 224 Mo. 564, et seq.; Bell v. Railway, 72 Mo. 50; 33 Cyc. 1214; 2 White on Personal Injuries, sec 964.] No cause of action inured to plaintiff by reason of the alleged omission to give the public crossing signal. Nor did the engineer owe plaintiff a duty to give a signal for his private crossing (Maxey v. Railroad, 113 Mo. 1) since such duty is not imposed by the statutes which require no other crossing signals than those prescribed for public crossings. The only duty the engineer was bound to perform in approaching the private...
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