Decker v. Chicago, B. & Q. R. Co.

• Decision Date: 01 February 1915
• Docket Number: No. 11383.,11383.
• Citation: 187 Mo. App. 207,172 S.W. 1168
• Parties: DECKER v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

172 S.W. 1168

187 Mo. A. 207

DECKER v. CHICAGO, B. & Q. R. CO.

No. 11383.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

RAILROADS (§ 441) — KILLING OF STOCK — NEGLIGENCE — EVIDENCE.

One suing a railroad for the death of a horse struck by a train running at a negligent speed must to recover prove that the injury was caused by the negligence, and mere proof of excessive speed and of an injury is not sufficient.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

Action by Charles L. Decker against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Higbee & Mills, of Kirksville, Palmer Trimble, of Keokuk, Iowa, and M. G. Roberts, of St. Joseph, for appellant. Fogle & Fogle, of Lancaster, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for the loss of a horse owned by him which was killed within the corporate limits of the city of Lancaster by a passing train on defendant's railroad. The petition is in three counts. The first alleges a cause of action founded on the failure of defendant to fence the railroad; the second negligence in running the train at excessive speed; and the third, general negligence in the operation of the train. The answer is a general denial. Verdict was for plaintiff on the second count, and for defendant on the first and third. Judgment was rendered accordingly, and defendant appealed.

The specification of negligence in the second count is that defendant, "while running its engines and cars upon its said railroad at a rate of speed in excess of six miles per hour, did negligently and carelessly run over, strike, maim, and kill with said engine and cars the said animal, * * * to the damage of the plaintiff in the sum of $150. And plaintiff further states that section 170 of article 20 of the Revised Ordinances of the City of Lancaster * * * provides that no railroad company shall run its engines, trains, or cars within the corporate limits of Lancaster, Mo., faster than six miles an hour and every engineer, conductor or other employé of any railroad company who shall move any engine, train, or cars faster than six miles per hour in or through said city shall be guilty of a misdemeanor."

The evidence relating to the issue thus tendered shows that the horse was struck and killed by the engine of a west-bound train running through Lancaster at night. The place where the horse was struck was within the limits of the city, but was not at a street crossing. No eyewitness of the accident testified at the trial, and no witness who testified saw the train. Plaintiff, who was a drayman, and lived near the railroad, testified that he was at home and heard the train pass; that he heard a horse neigh, went to his barn to ascertain the cause, and found that one of his horses had escaped, and that on going down the railroad he discovered the horse in an injured condition beside the track. There were indications, which need not be detailed, that the horse, while on the track, had been struck by the pilot, carried about 135 feet, and thrown off to one side. Further plaintiff testified that from the noise made by the train he thought it was running 20 miles an hour, and that his work as drayman in and about the railroad yards had given him opportunities to observe the speed...