Hoffman v. Missouri Pacific Ry. Co.

• Decision Date: 08 February 1887
• Citation: 24 Mo.App. 546
• Parties: F. J. HOFFMAN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 546

F. J. HOFFMAN, Respondent,

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

Feb. 8, 1887.

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded.

Statement of case by the court.

This action was for the recovery of damages on account of the negligent killing by defendant of the plaintiff's horse. The charge of negligence was, that “the agents, servants and employes of defendant * * * could have and did for a long distance see said colt upon defendant's track, and could have stopped the train in time to have avoided injuring said colt.”

The plaintiff's horse was permitted, not knowingly or intentionally, by strangers to escape from the pasture in which it was on to the defendant's railroad track through a gate in the railroad fence, the railroad track at that place being enclosed with fences, with gates therein for the use of a farm crossing. The evidence tended to show that the defendant's servants in charge of the engine could have seen the horse on the track for three-quarters of a mile, and that one of the persons who let the horse onto the track upon seeing a train approach went upon the track and attempted to attract the attention of those on the engine and cause them to stop the train by waving his hat, but in vain. The train was not stopped, but was run on to the horse, breaking its leg which necessitated the killing of it.

The court gave the following instruction for the plaintiff:

“3. Although the jury may find from the evidence that the colt in question escaped and went upon defendant's track through the negligence of others, yet, if the injury to said colt could have been avoided after the employes learned of the danger in which said colt was, or might have learned of its dangerous situation by the use of reasonable diligence, then they must find for the plaintiff.”

ADAMS & BOWLES, for the appellant.

I. It was not shown that the injury was inflicted by defendant, or that defendant was operating the road on which it did occur. Hence there could be no recovery. Gilbert v. Railroad, 23 Mo. App. 65.

II. It was necessary for plaintiff to show that the killing was the result of defendant's negligence, after its discovery of the animal on the track in a position of danger. Lloyd v. Railroad, 49 Mo. 199; Swearingen v. Railroad, 64 Mo. 73; Wallace v. Railroad, 74 Mo. 594; Young v. Railroad, 79 Mo. 336.

III. The mere fact of the animal being killed on the railroad track, raised no presumption of negligence, and no negligence can be inferred therefrom. Weir v. Railroad, 48 Mo. 558; Calvert v. Railroad, 34 Mo. 242; Wallace v. Railroad, supra.

IV. Before the company can be held liable in this case for a failure on the part of the engineer to slacken the speed of his train, it must appear that he could have done so with safety to the passengers and thereby have avoided injuring the colt and afforded it an opportunity of escape. The law does not require that a train should be stopped, or even its speed slackened, as soon as an animal is discovered near the track, or even upon the track. Railroad v. Trotter, 37 Ark. 593; Railroad v. Newman, 36 Ark. 607; Railroad v. Patchin, 16 Ill. 198; Brother v. Railroad, 5 Rich. 55; Railroad v. Ganote, 13 Am. and Eng. R. R. Cases, 519; Railroad v. Marriott, 19 Am. and Eng. R. R. Cases, 509; Sloop v. Railroad, 22 Mo. App. 593; Milburn v. Railroad, 21 Mo. App. 426.

V. The plaintiff through the witness, Hebberling, having allowed the colt to go upon the railroad track in a position of great peril and at a time, too, when he knew a train was most liable to approach, was guilty of the grossest negligence, and he cannot now be heard to complain of an injury which was brought about by his own misfeasance. Smith v. Railroad, 34 Iowa, 506.

VI. The instruction asked by defendant at the close of the plaintiff's testimony in the nature of a demurrer to the evidence should have been given. In refusing to do so the court committed error.

A. B. LOGAN, for the respondent.

I. The evidence did show that the injury was inflicted by defendant.

II. It was shown that the killing was the result of defendant's negligence, after its discovery of the animal on the track, in a position of danger of being injured. Kendig v. Railroad, 79 Mo. 270 ;Young v. Railroad, 79 Mo. 336; Berkley v. Railroad, not yet reported; White v. Railroad, not yet reported. This question was fairly submitted to the jury by the instructions.

III. The engineer could have stopped the train with safety to the passengers and have avoided injuring the colt, and did stop it in a distance of two hundred feet after he struck the colt.

IV. The...