Decker v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 01 February 1915
• Citation: 172 S.W. 1168,187 Mo.App. 207
• Parties: CHARLES L. DECKER, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

172 S.W. 1168

187 Mo.App. 207

CHARLES L. DECKER, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1915

Appeal from Schuyler Circuit Court.--Hon. Nat M. Shelton, Judge.

Judgment reversed.

Higbee & Mills, Palmer Trimble and M. G. Roberts for appellant.

Fogle & Fogle for respondent.

OPINION

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 one hundred and seventy of article twenty 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, Missouri, faster than six miles an hour and every engineer, conductor or other employee of any railroad company who shall move any engine, train of 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 westbound 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 twenty miles an hour and that his work as drayman in and about the railroad yards had given him opportunities to observe the speed of running trains. Another witness who had been mayor of the city stated that the ordinance limiting the speed of trains to six miles per hour, which was introduced in evidence, had not been observed or enforced and that the train in question usually ran through the city at twenty or twenty-five miles an hour.

The substance of the charge sustained by the verdict and judgment...