Halferty v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 90
• Parties: HALFERTY v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 90

HALFERTY

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge

AFFIRMED.

Wells H. Blodgett and Geo. S. Grover for appellant.

There was no collision proved between the train and the animal. This, of itself, should have nonsuited plaintiff. Lafferty v. Railroad Co., 44 Mo. 291; Hughes v. Railroad Co., 66 Mo. 325; Seibert v. Railroad Co., 72 Mo. 565. There was no evidence that the engineer could have stopped the train with safety after discovering the dangerous situation of the animal. If he could not, his failure to stop the train was a prudent and not a negligent act. Pryor v. Railroad Co., 69 Mo. 218; Bell v. Railroad Co., 72 Mo. 50. Nor was it shown that the failure to give the signals within eighty rods of the crossing caused the injury. Plaintiff was not, therefore, entitled to recover, and it was error to refuse defendant's instruction. Holman v. Railroad Co., 62 Mo. 562; Wallace v. Railroad Co., 74 Mo. 597; Powell v. Railroad Co., 76 Mo. 83. The first instruction given for plaintiff was erroneous. Revised Statutes, section 806 does not require both the blowing of the whistle and the ringing of the bell. Either is sufficient. Turner v. Railroad Co., 78 Mo. 578. The second instruction given for plaintiff is erroneous, as there is no evidence on which to base it. It is fatal error to assume the existence of facts not in evidence and found instructions upon them. Washington, etc., Co. v. St. Mary's Seminary, 52 Mo. 480; Gerren v. Railroad Co., 60 Mo. 405; Peck v. Ritchey, 66 Mo. 114; Thompson on Charging the Jury, p. 75.

D. H. McIntyre and F. M. Brown for respondent.

The connection between defendant's default and the injury may be inferred from all the circumstances of the particular case. Alexander v. Railroad Co., 76 Mo. 494. The evidence clearly made a case for the jury. The testimony was uncontradicted that the mule was strong and valuable, and in a situation and condition to get out of the way if the signals had been given. Goodwin v. Railroad Co., 75 Mo. 76; Alexander v. Railroad Co., 76 Mo. 494; Turner v. Railroad Co., 78 Mo. 578. It was defendant's imperative duty to ring the bell and sound the whistle, and no excuse is receivable for its failure to do so. Johnson v. Railroad Co., 77 Mo. 546. The first instruction given for the plaintiff is not open to the objection urged against it by appellant's counsel. It correctly declares the law. It tells the jury that it was defendant's duty to ring the bell or sound the whistle, and if they found from the evidence that it neglected to ring the bell and also neglected to sound the whistle, and further found that the mule was killed by reason of such negligence, they should find for the plaintiff. This was in harmony with late decisions of this court. Van Note v. Railroad Co., 70 Mo. 541; Turner v. Railroad Co., supra.

SHERWOOD, J.

Action before a justice of the peace. The material part of plaintiff's amended petition upon which the cause was tried in the circuit court is as follows:

And for cause of action states that on the 16th day of January, 1881, plaintiff's mare mule about four years old, dark colored and about sixteen hands high, and of the value of $175 (with other stock of plaintiff's), attempted to cross the track of said railroad at a point on said railroad in said Atchison township, in said county, adjoining Concord township, in said county of Clinton, and where said road crossed a traveled public road for public use and at a point where the farms of Ellen E. Scott, S. H. Scearce and S. Halferty corner or join.

That plaintiff's said mule having attempted to cross defendant's said railroad track at said point at the time and place as aforesaid, was carelessly and negligently run over, struck and instantly killed by the locomotive and train of cars of the defendant, being then and there operated by defendant, its agents, servants and employes, and that the defendant, its agents, servants and employes, on said day and at the time plaintiff's said mule as aforesaid, attempted to cross defendant's said track at said place as aforesaid, carelessly and negligently failed to ring the bell placed on the locomotive of their said engine, and carelessly and negligently failed to ring the bell at a distance of eighty rods from the said crossing, and failed to keep said bell ringing until said train had crossed said crossing where they killed plaintiff's said mule, and carelessly and negligently failed to sound the steam whistle attached to their said engine eighty rods from the place where the said road crosses said traveled public road, and negligently failed to sound their steam whistle at intervals until they had crossed said public road at the time and place as aforesaid, and in violation and contrary to the provisions of the statutes in such cases made and provided, and negligently failed to check the speed of their said locomotive and train, but, on the contrary, willfully let on more steam and increased the speed of their said train when within a few feet of said public crossing, and while in full view of plaintiff's said mule while attempting to cross their said track.

Wherefore, he alleges he is damaged in the sum of $175. Wherefore he prays judgment for the said sum of $175, and for all other proper relief in the premises and costs of suit.

The entire evidence in the cause was as follows. The plaintiff testified:

“Am the plaintiff in the case and owner of the mule. On January 16th, 1881, I missed my mule; next morning found her at the railroad crossing on the public highway west of and adjoining my farm. She was dead, lying on the north side of the railroad in the public highway and near the east side.

There was a willow tree north of the track and on east line of the highway. The mule was north of this sapling; its back against it. There was snow on the ground and no tracks between where the mule lay and the railroad track. Had seven head of stock out; the old mare was leader of stock and mules. She was afraid of bell and whistle and when either is sounded she will run away as far as she can and as quickly as possible. The other stock were in the habit of following her. Mule was worth $175. The railroad runs through a cut on a curve west of crossing; the back bone of the cut is about seventy yards west of crossing; it is a little down grade at the crossing. The person in charge of train could have seen stock crossing seventy or eighty yards away.”

Examination by court: On left hind leg of mule was a mark near hoof about the size of a half-dollar where skin was off; no other bruise or mark of injury or violence.

M. Conner testified he was about forty or fifty yards from the crossing when the train came up; was paying particular attention to the train as I had a pair of young mules and was afraid they would be frightened. They did not sound their whistle that I heard, but rung or tapped the bell three or four times about twenty-five yards from the crossing. The mule was lying about twenty feet from the track near a willow tree; no marks of injury or violence on the mule except a place about the size of a half-dollar on the left hind leg near the hoof the hair was off. The train was from ten to fourteen cars and was going east. Can see crossing about 130 or 140 yards west of crossing. The stock was south of crossing about twenty-five yards when I saw them and were going north toward the crossing. Mare was crossing the track when bell was sounded. She got away. No tracks between railroad track and where the mule lay; the animal near the foot where the hair was off was bleeding a little.

Wm. Lott testified: Saw mule after it was killed; saw train January 16th, 1881, about two hundred and fifty yards west of crossing; was watching train. It did not whistle; don't know whether bell was rung or not; I did not hear it. No bruises or wounds on mule except hair off on left hind leg near hoof.

Admitted that mule was worth $175, and that the mare became frightened at sound of bell or whistle and was leader of the stock.

This was all the evidence offered by plaintiff.

Wm. Martin, on defendant's behalf, testified: Am locomotive engineer; am in employ of defendant; nine years' experience; was engineer on locomotive January 16, 1881, on Wabash, St. Louis & Pacific Railway, attached to a freight train going east; saw a lot of horses and mules south of crossing; they attempted to cross the track; all got across but one; it seemed to study what it would do and finally went across; it jumped and fell on its side on north side of the crossing; engine did not strike the mule nor did any part of the train strike it. We had been ringing the bell for more than eighty rods before we came to the crossing; the bell was rung by a brakeman; the whistle was sounded before we crossed the highway; if the engine or any part of the train had struck the...