McPheeters v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1869
• Citation: 45 Mo. 22
• Parties: JOSEPH H. MCPHEETERS, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

45 Mo. 22

JOSEPH H. MCPHEETERS, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from Sixth District Court.

Carr, for appellant.

I. The petition simply alleges a legal conclusion. It does not comply with the practice act (Gen. Stat. 1865, ch. 165, § 3, p. 658). It should allege wherein the appellant was guilty of carelessness and negligence. (Sugg v. Blow, 17 Mo. 359.)

II. The second instruction given to the jury at the request of the respondent does not embrace the defense raised by the evidence on behalf of the appellant. (Brightman v. Eddy, 97 Mass. 478; Denny v. Williams, 5 Allen, 1; Halloran v. New York & Harlem R.R. Co., 2 E. D. Smith, 257; People v. Cook, 8 N. Y. 67, 72-5; Smith v. Hann. & St. Jo. R.R. Co., 37 Mo. 287; Clark's Adm'r v. same, 36 Mo. 217; Sawyer v. same, 37 Mo. 70; Pittsburgh & Connellsville Railroad Company v. McClurg, 56 Penn. 294.)

III. Railroad companies are not required to fence in cities and towns, nor at the crossing of public highways, and are not liable unless guilty of gross negligence. (Bowman v. The Troy and Boston R.R. Co., 37 Barb. 516; Vanderkar v. Rensalaer and Saratoga R.R. Co., 13 Barb. 390; Parker v. same, 16 Barb. 315; Halloran v. New York & Harlem R.R. Co., 2 E. D. Smith, 257; St. Louis, Alton & T. H. R.R. Co. v. Linden, 39 Ill. 433; The Indianapolis & Cincinnati R.R. Co. v. Kenney, 8 Ind. 402; same v. Oestel, 20 Ind. 231; The Illinois Central R.R. Co. v. Reedy, 17 Ill. 580; Railroad v. Skinner, 19 Penn. 298; 1 Bedf. 480, and authorities cited; id. 500, and authorities cited; 2 Zab. 185; 2 Metc. 177.)

Redd & McCabe, for respondent, cited Gorman v. Pacific Railroad, 26 Mo. 445; Burns v. The Housatonic Railroad Co., 2 Am. Railway Cases, 117.

WAGNER, Judge, delivered the opinion of the court.

The first question which will be considered is the motion in arrest, made by the appellant, which brings up the sufficiency of the petition. The action was for negligently killing a cow by the locomotive and train on appellant's road, at a public crossing within the corporate limits of the city of Palmyra. The averment in the petition is that the “defendant, by its servants and agents, carelessly and negligently, caused one of defendant's locomotives, with a train of cars attached thereto, to strike a milch cow, the property of plaintiff,” &c. The allegation is that the act was done carelessly and negligently, and that is sufficient. Negligence is a question of fact, and, under a general averment of negligence in running a train and causing an injury to be done, it is competent to introduce any testimony having a tendency to support the charge.

It has been expressly decided in this court, that a petition against a railroad company, which states that the defendant, while running its locomotive, etc., negligently struck the cattle of the plaintiff, etc., shows a good cause of action at common law. (Garner v. Hann. & St. Jo. R.R. Co., 34 Mo. 235; see also 3 Tiff. & Sm. Pr. 88) The petition was, I think, sufficient, and the court therefore committed no error in overruling the motion.

As the injury occurred at a public crossing, in the streets of a town, and not where it was incumbent on the company to erect a fence, there could be no recovery without proof of actual negligence. (Meyer v. N. M. R.R. Co., 35 Mo. 352.) But the question of negligence is peculiarly and exclusively for the jury to determine, and it is hardly necessary to again repeat what has been so often held by this court, that if there is any evidence to sustain the verdict we will not interfere. It is true the employees of the railroad swore that there was no negligence, but what weight or credibility should be attached to their testimony was for the jury, who heard them detail their evidence and could form a much more accurate opinion than we could pretend to. It is admitted on all sides that the train was running at full speed at the rate of ten or twelve miles an hour, the usual speed of freight trains, and it is questionable whether such a rate at a public crossing in a town, where people are continually traveling and stock crossing, ought not of itself to be held negligence. At any rate, this, in connection with other circumstances, was proper for the consideration of the jury, and from which they might reasonably infer negligence.

So far as the evidence is concerned, there is nothing calling for the revisory action of this court, and the only question is whether there was any error in the instructions. The plaintiff asked, and the court gave, but two instructions at his request. The first declared that the defendant, its servants and agents in the control of its train were bound to use reasonable care and diligence in the management of its train to avoid doing injury to stock in the crossing of public streets and highways. The second directed the jury that if they believed, from all the facts and cirstances proved in evidence, that the defendant, its servants and agents, could, by the use of reasonable care and diligence, have avoided injuring the plaintiff's cow, they ought to find a verdict for the plaintiff.

The court, on motion of the defendant,...