Fitzgerald v. The Chicago, R.I. & P. Ry. Co.

• Decision Date: 15 June 1885
• Citation: 18 Mo.App. 391
• Parties: OSCAR D. FITZGERALD, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RY. CO., Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 391

OSCAR D. FITZGERALD, Respondent, v. THE CHICAGO, ROCK ISLAND & PACIFIC RY. CO., Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, J.

Reversed and remanded.

Statement of case by the court.

This is an action for killing plaintiff's cow in the town of Lathrop. The evidence showed defendant's track to be straight and the view unobstructed up and down the track for one-fourth of a mile each way from the point of contact with the animal. Plaintiff's witness, Mrs. Collet, says " The cow was struck about twenty-five yards north of the Wabash crossing. I then lived on the west side of the Hannibal & St. Joseph railroad track. The depot and elevator are sixty-five or seventy yards apart, and the platform of the depot comes up to the Hannibal & St Joseph railroad track. The cow was near the track, and the train whistled just as it crossed the Wabash track. Don't know whether the train stopped south of the crossing. The cow stood only a few steps from the engine when it approached her. A person on the engine could not have seen the cattle when they were between the depot and the elevator, until they got to the Wabash crossing, and that was as near to the cattle as across this room, I mean the court room from this end to the other. At the speed this train was running, the engineer could not have stopped after the cow got on the track. I think the engineer could have seen the cow about fifty or sixty yards away from the track, a long distance before they got to the crossing. The depot stands east of the track, and has a west platform next to the track. The cow got on the track just as the engine struck her. She was attempting to cross the track immediately in front of the engine and was struck as soon as she got on the track."

M. A Low, for the appellant.

I. At such a point (the outskirts of a town) no rate of speed is per se negligence, in the absence of statutory or municipal regulation. Powell v. R. R., 76 Mo. 80; Wallace v. R. R., 74 Mo. 594; Bell v. R R., 72 Mo. 50; Lord v. R. R., S.Ct. Mo., not yet reported.

II. The evidence does not tend to show that if the train had been running at a less rate of speed, it could have been stopped in time to save the animal. Wallace v. R. R., supra.

III. There was no necessary connection between the rate of speed and the injury to the cow. Powell v. R. R., 76 Mo. 82.

IV. The finding of the court was against the evidence. If there were circumstances requiring the engineer to apprehend danger, and requiring him to take measures to prevent it, they should have been shown. But there is a total absence of any such showing here. Young v. R. R., 79 Mo. 336.

THOS. J. PORTER, for the respondent.

The trial court, sitting as a jury, weighed the evidence and reconsidered it on a motion for a new trial, arriving at the same conclusion each time, under conditions most favorable for reaching a...