Martin v. Butler County Railroad Company
| Decision Date | 11 December 1913 |
| Citation | 161 S.W. 631,175 Mo.App. 464 |
| Parties | LILLIE MARTIN, Respondent, v. BUTLER COUNTY RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.
REVERSED AND REMANDED.
Lew R Thomason for appellant.
A general averment of negligence, in a common law action for negligence, without stating wherein, and in what acts the negligence consists is fatally defective, and does not state a cause of action. Waldheier v. Railroad, 71 Mo 514; Current v. Railroad, 86 Mo. 67; Summers v Transit Co., 108 Mo.App. 321; Gurley v Railroad, 93 Mo. 551. Where stock is killed within the limits of an incorporated city or town, or at any other place where the law does not require the railroad company to fence its road, before the plaintiff is entitled to recover it must be shown by the plaintiff that the actual negligence of the defendant, complained of, was the proximate cause of the injury; the law raises no inference or presumption of negligence from the fact that plaintiff's animal was killed on defendant's track. Atterbury v. Railroad, 110 Mo.App. 608; Redmond v. Railroad, 104 Mo.App. 651; Averill v. Railroad, 72 Mo.App. 243; Ayers v. Railroad, 190 Mo. 238; Wallace v. Railroad, 74 Mo. 594; Davis v. Railroad, 46 Mo.App. 478. In a common law action for negligence for negligent injury, it is the duty of the court to instruct the jury what facts if found will amount to negligence and not leave them to determine that for themselves; what constitutes negligence is a question of law for the court. Goodman v. Railroad, 75 Mo. 73; Yarnall v. Railroad, 75 Mo. 583; Senate v. Railroad, 41 Mo.App. 297; Casey v. Bridge Co., 114 Mo.App. 65; Margrane v. Railroad, 183 Mo. 132; Welsh v. Railroad, 20 Mo.App. 477. Where an action for killing stock, against a railroad company is brought before a justice of the peace, in the township adjoining the one where the killing occurred, such facts should be alleged in the complaint and must be proven by the evidence. Jones v. Railroad, 52 Mo.App. 384; Kinton v. Railroad, 30 Mo.App. 573; Wiseman v. Railroad, 30 Mo.App. 516; Blackstone v. Railroad, 86 Mo. 492; Briggs v. Railroad, 111 Mo. 168; Shaw v. Railroad, 110 Mo.App. 565; Rosenstingle v. Railroad, 122 Mo.App. 492.
No brief for respondent.
This case must be reversed for the reason that it originated before a justice of the peace in Poplar Bluff township in Butler county, Missouri, and the allegation is that plaintiff's cow was killed by defendant in Ash Hill township, in said county, and that these two townships adjoin each other; but there is no proof whatever of this latter fact. It has been ruled in this State time and time again that under our statute where a suit for killing stock is brought against a railroad in a township other than the one in which the animal was killed, the fact that such townships adjoin is jurisdictional and must be both averred and proven. In this case such fact is averred but not proven. This is error. [Mitchell v. Railroad, 82 Mo. 106, 110; Wiseman v. Railroad, 30 Mo.App. 516; Kinion v. Railroad, 30 Mo.App. 573; Ellis v. Railroad, 83 Mo. 372; Jones v. Railroad, 52 Mo.App. 381, 384; Backenstoe v. Railroad, 86 Mo. 492; Palmer v. Railroad, 21 Mo.App. 437; Briggs v. Railroad, 111 Mo. 168, 20 S.W. 32; Shaw v. Railroad, 110 Mo.App. 561, 85 S.W. 611; Rosentingle v. Railroad, 122 Mo.App. 492, 495, 99 S.W. 788.] It may be that this fact was so well known to the parties trying the case that they overlooked proving it. If so, the proof can be made at another trial.
The defendant's objections to the sufficiency of plaintiff's statement as not stating a cause of action are not well taken. The case originated in a justice court and it is not necessary to decide whether the facts stated are sufficient to constitute a good pleading according to the rules applicable to cases originating in the circuit court. The cases cited by defendant relate to the latter class of cases. After stating that plaintiff owned the cow, and defendant owned and operated a railroad through Ash Hill township in Butler county, it is alleged that on a certain named date the cow strayed on defendant's track and that This, we think, is a sufficient statement under the liberal rules applicable to justice courts. [Windle v. Railroad, 168 Mo.App. 596, 602, 153 S.W. 282, and cases cited.]
As we understand the case from the meager evidence, defendant's engine had been standing still some time--perhaps over night; that the cow was lying down close to the track, about thirty or forty feet from the engine; that as soon as the engine first "commenced escaping steam that the cow got up and walked over on the track; she was then standing up, the engine at that time was about a rail's length south of her, there was no object at that time between the engine and the cow;" that the engine started slowly and could be easily stopped, but was not, and ran against and killed the cow. No bell or other alarm was sounded to scare the cow from the track. The evidence is such that the jury might rightly find that the engineer or fireman either saw or could with due care have seen the animal on the track or coming on it in time to have avoided killing her by either scaring her from the track by some alarm or by stopping the engine before the collision or by both methods. If these trainmen did or with due care could have seen the cow lying close beside the track, they should have taken notice that she was likely to go on the track as the engine approached and governed themselves and the engine accordingly. [Young v. Railroad, 79 Mo. 336, 340.] The case is, therefore, one for the jury.
What we have said also disposes of the alleged error in admitting evidence that no whistle was sounded or bell rung. The court ruled that plaintiff could not recover on that ground but that it was a proper evidentiary fact as showing no attempt to scare the cow from the track. Defendant cites Coffin v. Railroad, 22 Mo.App. 601, as holding that a railroad is not required to sound the whistle within the limits of an incorporated town, but it is held in that case and in Turner v. Railroad, 134 Mo.App. 397, 402, 114 S.W 1026, that if the engine was approaching a street or road...
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