Irving v. Chicago, Rock Island & Pacific Railway
| Decision Date | 29 May 1911 |
| Citation | 137 S.W. 1009,156 Mo.App. 667 |
| Parties | LINDSAY IRVING, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
Judgment affirmed.
W. F Evans, Sebree, Conrad & Wendorff for appellant.
(1) The court erred in refusing to instruct the jury as requested at the close of plaintiff's evidence, and again at the close of all the evidence that the plaintiff was not entitled to recover and to return a verdict for defendant. The evidence failed to establish that the mule was killed at a "place where the railroad crosses a traveled public road or street." Sec. 3140, R. S. 1909; State v Transue, 131 Mo.App. 323; Smith v. Railroad, 47 Mo.App. 546; Day v. Railroad, 132 Mo.App. 714; Corby v. Railroad, 150 Mo. 468; Paul v Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355; State ex rel. v. Railroad, 19 Mo.App. 164; Bauer v. Railroad, 69 Mo. 219; Hodges v. Railroad, 71 Mo. 50. There was no competent evidence of the reasonable market value of the mule. (2) The court erred in giving instruction No. 1, requested by plaintiff over the objections of the defendant. Authorities cited under point one: Maxey v. Railroad, 113 Mo. 1; Stevens v. Railroad, 67 Mo.App. 365; Roddy v. Railroad, 104 Mo. 250; Prather v. Railroad, 84 Mo.App. 86. (3) The court erred in giving instruction No. 1, on the measure of damages.
A. O. Harrison for respondent.
The point at which the mule was killed was a "place where the railroad crosses a traveled public road or street." Russell v. Receivers, 70 Mo.App. 95; Bailey v. Culver, 12 Mo.App. 175; Kalteyer v. Sullivan, 46 S.W. 288; Byrne v. Railroad, 28 Hun 438; The State to use v. Railroad, 46 Mo.App. 466. There was ample competent evidence to prove the market value of the mule. 17 Cyc. 117-119. Instruction number 1 for plaintiff was properly given. Byrne v. Railroad, 28 Hun 438.
This is an action to recover for the value of a mule, killed by one of defendant's freight trains, at the alley between Cherry and Holmes streets on the tracks of the Kansas City Belt Railway Company, on the 20th day of July, 1909, in Kansas City, Missouri.
The evidence was that this alley at the point of intersection with the tracks and right of way of the said Belt Railway Company was, "constructed like the ordinary street crossing over a railroad track," and that it was so used by "wagons and footmen and horses and horsemen as a crossing." At the time, the mule was running loose and was going south in said alley toward said crossing. A freight train, operated by defendant, to which was attached two engines, was going east, on an up grade, toward the point of the accident; the mule walked onto the track, was struck by the front engine and killed. No signal or warning was given by those in charge of the train of its approach; that the steam was not turned off of either engine and no effort was made to stop the train.
The plaintiff went to the jury on the charge of negligence based upon the failure of defendant to ring the bell as the train approached the crossing. Defendant introduced no evidence except certain ordinances of Kansas City. At the close of the evidence upon the part of plaintiff, defendant requested the court to give to the jury an instruction in the nature of a demurrer to the evidence, which the court denied. A similar request was made to the court at the close of all the evidence, which was also denied.
The court gave at the instance of the plaintiff instruction one which reads as follows: "The court instructs the jury that it was the duty of the defendant in this case, under the law, to ring the bell on said train continuously for eighty rods next before reaching said crossing, and if you find and believe from the evidence in this case that the parties in charge of the train of cars failed to ring the bell eighty rods from the crossing, and continue to ring the same, until said train reached said crossing, and if the jury further believe that the killing of said mule, if it was killed resulted from such failure to ring the bell, then your verdict must be for the plaintiff, and if you find the issues for the plaintiff, you will assess his damages at such sum as you may find and believe from the evidence was the reasonable market value of said mule at the time of the killing, if it was killed, not to...
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