Goodwin v. Chicago, Rock Island & Pacific R.R. Co.

Decision Date31 October 1881
PartiesGOODWIN v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

Shanklin, Low & McDougal for appellant.

Gillihan & Brosius for respondent.

HENRY, J.

This suit was commenced before a justice of the peace, to recover damages for the killing of a steer belonging to plaintiff, by a train of defendant's cars, at the crossing of a public highway in Daviess county, occasioned, it is alleged in the statement, by the carelessness and negligence of defendant's servants, in managing and running the locomotive and cars. The fact that the steer was killed at said crossing by the train, is not controverted, and the evidence for plaintiff tended to prove that the train was running about twenty-five miles an hour, and that the bell on the locomotive was not rung, nor the whistle blown, as required by section 38, Wagner's Statutes, page 310. The defendant's evidence was to the effect, that the train was running at the usual speed; that the bell was rung, and the whistle blown, as required by section 38; that the engineer first saw the steer when the locomotive was about eighty yards from the crossing, and just as he stepped upon the track, and that the train could not then have been stopped in time to avoid striking him. On cross-examination, the engineer was permitted, against defendant's objection, to testify, that if the train had been running only fifteen miles an hour, it could have been stopped, after he first saw the steer, and the accident avoided. The evidence also showed, that the train was stopped about 100 yards east of the crossing after the steer was struck.

The court, for plaintiff, gave the following instruction, of which defendant complains: “If the jury believe from the evidence that by the carelessness or negligence of the agents or employes of defendant in the operation of their locomotive engine and cars, plaintiff's steer was run against and killed by said locomotive engine or cars, they will find for plaintiff the value of said steer.”

For defendant, the following was given: 6. “Unless the jury believe from the evidence that the employes of defendant in charge of the train in proof were guilty of some act or acts of negligence in running the train at the time of the injury, and that the injury resulted directly from such negligence, the jury ought to find for defendant.”

The following, asked by defendant, were refused: 1. “Under the complaint and evidence in this case, the plaintiff cannot recover; hence the jury will find for the defendant.”

4. “Under the complaint in this case, the jury will exclude from their consideration all evidence tending to prove a failure to ring the bell or sound the whistle by the men in charge of the train which struck plaintiff's steer.”

5. “The jury ought to find for plaintiff in this case, unless they believe from a preponderance of the evidence that defendant's agents or servants in charge of the train were guilty of some acts of negligence other than failing to ring the bell or sound the whistle, and that the steer was struck and injured by reason of such negligence.”

7. “The running of the train at the place of injury at the rate of twenty-five miles an hour does not constitute negligence under our law.”

8. “Outside of cities and towns the law does not prescribe the rate of speed of railroad trains at public railroad crossings.”

9. “To entitle plaintiff to recover on the ground of negligence, it is not enough for plaintiff to prove the negligence alone, but the jury must believe from the evidence that there was negligence on the part of defendant's employes, and that such negligence directly contributed to the injury.”

Plaintiff obtained a judgment, from which defendant has appealed.

1. NEGLIGENCE: instructions.

The instruction given for plaintiff is rather too general, as a guide to a jury in such a case. The court should have declared what facts, which the evidence tended to prove, would amount to negligence, and told the jury, if they found those facts, and that the injury was occasioned by such negligence, their verdict...

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