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

• Citation: 75 Mo. 167
• Court: Missouri Supreme Court
• Decision Date: 31 October 1881
• Parties: LYNN v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

75 Mo. 167

LYNN

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

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

AFFIRMED.

This was an action begun before a justice of the peace. The statement set forth that on the 10th day of October, 1877, while plaintiff was, with due care and caution, driving a drove of cattle across defendant's railroad, where a public highway crosses said railroad, the defendant then and there carelessly and negligently, by failing to ring its bell and blow the whistle, as required by section 38, chapter 37, Wagner's Statutes, and by otherwise negligently running and conducting its train of cars over its said road, did run over, upon and against the cattle of plaintiff and injured and killed one steer, of the value of $20, etc. At the trial plaintiff offered evidence tending to show that he was in the act of driving a herd of cattle across defendant's track at a public crossing when he discovered a freight train approaching at high speed and not more than fifty to seventy-five yards away; that he tried to drive his cattle from the track, but before he could do so the train was upon him, and killed the steer and some other cattle; that the engineer and fireman saw the cattle on the track when the train was more than a quarter of a mile off, but did not slacken speed, blow the whistle, ring the bell or take any other precaution to avoid the collision. Defendant, on its part, gave evidence tending to show that plaintiff's cattle had crossed the track in safety, and when the train was within fifty yards of the crossing some of them ran back and attempted to re-cross, and were killed in the attempt; that the train could not have been stopped in time to avoid the collision; that the bell was rung and the whistle blown in proper time, and that plaintiff was guilty of negligence in failing to keep a lookout for the train, the crossing being a peculiarly dangerous one.

On the part of the plaintiff the court instructed the jury as follows: 1. If the jury believe from the evidence that the killing and crippling of plaintiff's cattle was done by defendant's locomotive and cars, on the crossing of a public traveled road, and that the whistle was not sounded at least eighty rods from said road and sounded at intervals until such train crossed said railroad; and they further believe from the evidence, and all the facts and circumstances in the case, that said killing and crippling of plaintiff's cattle resulted from the neglect to sound the whistle or ring the bell, they must find for plaintiff, unless the jury should further find that plaintiff, by his own negligence, directly contributed to the injury.

2. If the jury believe from the...