Howenstein v. Pacific R.R. Co.

• Decision Date: 31 January 1874
• Citation: 55 Mo. 33
• Parties: ADAM HOWENSTEIN, Respondent, v. PACIFIC R. R. CO., Appellant.
• Court: Missouri Supreme Court

55 Mo. 33

ADAM HOWENSTEIN, Respondent,

v.PACIFIC R. R. CO., Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Johnson Court of Common Pleas.

J. N. Litton, for Appellant.

I. The burden is on the plaintiff to establish, that the neglect to ring the bell was the cause of the injury to the horses. The mere fact that the bell was not rung, does not of itself prove that, if it had been, the horses would not have been struck. There must be affirmative evidence of that fact. That is not only the law, but was the well settled construction of this statute when it was adopted. (See 1 Redf. Railw., p. 480, § 29; Ill. R. R. Co. vs. Phelps, 29 Ill., 447; Galena R. R. vs. Loomis, 13 Ill., 548; Galena R. R. vs. Dill, 22 Ill., 266; Mich. & South. R. R. vs. Fisher, 27 Ind., 96.)

II. What a jury might have inferred from the circumstances of the case cuts no figure in this case, because all the facts are admitted of record, and when that is the case the questions are entirely of law. (See 50 Mo., 44; also Barton vs. I. M. R. R., 52 Mo., 253.)

Ewing & Smith, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was commenced before a justice of the peace, where judgment was rendered for the plaintiff. From that judgment the defendant appealed to the Johnson Court of Common Pleas, where judgment was again rendered in favor of the plaintiff, from which the defendant appealed to this court.

The cause of action filed before the justice charges that the defendant is a body corporate, and upon the 24th day of October, 1870, was the owner of a certain railroad known as the Pacific Railroad, together with locomotives, cars, etc.; that on said day, while two horses, the property of the plaintiff, and of the value of $150, were traveling along the public highway, from the house of plaintiff to their pasturing grounds on the commons, which said highway is known as the Patrick road, and crosses said railroad at or near the western boundary line of the town of Warrensburg, in the county of Johnson, and as said horses had reached said crossing, the defendant carelessly and negligently caused one of its locomotives with a train of cars attached thereto, to approach said crossing and pass rapidly over the track of said railroad, carelessly and negligently omitting, while so approaching said crossing, to give any signal, by ringing the bell of said locomotive or sounding the steam whistle thereon, as required by the 38th section of chapter 63, of the General Statutes of the State of Missouri; that by reason of said negligence of the defendant, and without any fault or negligence on the part of the plaintiff, the said locomotive struck plaintiff's said horses and wounded and killed the same until they were of no value whatever, by which plaintiff was damaged and judgment is prayed for the sum of $150.

It is admitted by the parties that the following statement comprehends all of the material evidence in the cause, to-wit: “that the defendant is an incorporated company, as charged, and was the owner of and operating said Pacific railroad at the time of the wounding and killing of plaintiff's horses; that on the night of the killing and wounding (October 24th, 1870,) the evening passenger train going east, while passing with usual speed along said road, omitting to ring the bell or blow the whistle while approaching that point on said railroad where what is known as the Patrick road--a public highway-- crosses said railroad, and did pass over said crossing without ringing the bell or blowing the whistle; that the crossing is about one-fourth of a mile from the depot at Warrensburg; that the train going east is on a heavy up-grade; that a short time after said train passed over said crossing the horses of plaintiff were found by the side of the railroad track, one of them dead, and the other injured to such an extent as to be worthless; that the horses had the appearance of having been struck by the locomotive; that the horses were at the time running at large; that said Patrick road crossed said railroad at a point near and within the western limits of the town of Warrensburg, in the township of Warrensburg, Johnson county, State of Missouri; that the horses were of the reasonable value of $150, and were the property of the plaintiff.”

This being all the evidence in the case, the court at the request of the plaintiff, declared the law to be as follows:

“That if it is proved by the evidence that the horses referred to were the property of the plaintiff, and they were struck by the locomotive or cars of defendant, and injured to such an extent as to kill one and wound another, then the verdict must be for the plaintiff, if it is also proved that the bell attached to the locomotive engine was not rung at least at a distance of eighty rods from the place where the said Pacific Railroad crosses said Patrick road and kept ringing until it crossed said road or street, or that the steam whistle attached to said engine was sounded at least eighty rods from said crossing, and sounded at intervals until said Patrick road was passed.”

The defendant objected to said declaration of law and the objection being overruled, excepted.

The court, at the request of the defendant, declared the law as follows:

1. “If the court hearing the cause should believe from the evidence that the animals strayed upon the track of defendant, within the corporate limits of Warrensburg, and were injured or killed, yet the defendant is not liable for damages for the injury or killing of the animals by one of its locomotives, engines or cars upon a crossing of a public street or at any other point upon the track within the corporate limits of said town, unless the owners of such locomotive, engine or cars...