Midgett v. St. Louis & S. F. R. Co.

• Decision Date: 30 April 1907
• Court: Missouri Court of Appeals
• Parties: MIDGETT v. ST. LOUIS & S. F. R. CO. et al.

102 S.W. 56

124 Mo. A. 540

MIDGETT v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. RAILROADS — INJURIES TO STOCK — ACTIONS — INSTRUCTIONS.

In an action against a railroad for the killing of plaintiff's cow while on defendant's track, an instruction that it was the duty of defendant's servants to cause the bell of the locomotive to be rung at a distance of at least 80 rods before reaching the crossing where the cow was killed, and to keep the bell ringing or to cause the steam whistle to be sounded at the same distance, and to cause it to be sounded at intervals until the locomotive reached the crossing, and that, if they failed to cause the bell to be rung and also further neglected to cause the whistle to be so sounded and the killing of plaintiff's cow was caused by such negligence, the finding should be for plaintiff, was not erroneous as authorizing the jury to find for plaintiff if they were satisfied that the bell was not rung and the whistle sounded at least 80 rods before the train reached the crossing.

2. SAME.

Rev. St. 1899, § 1102 [Ann. St. 1906, p. 938], requires a railroad company to ring a bell or blow a whistle at least 80 rods from a public crossing, and to continue to so ring or whistle until the locomotive shall have crossed the crossing, and makes the railroad liable for all damages which any person may sustain by failure to comply with such requirements, but provides that the railroad may show that the failure to ring the bell or sound the whistle was not the cause of the injury. Held, in an action against a railroad for killing plaintiff's cow, there being evidence that the cow was a milch cow, and that at the time she was killed was on her way home to her calf, and hence less likely to be turned from her path by the sound of the whistle or the ringing of the bell than would stock under ordinary circumstances. it was error to refuse an instruction that, even though defendant did not whistle or ring the bell as required by statute, yet if such failure did not cause the injury, plaintiff could not recover.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by James Midgett against the St. Louis & San Francisco Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed.

The count of the petition on which the cause was submitted to the jury alleged that plaintiff's cow was struck and killed "by the engine and cars of the defendant while the same were being negligently operated by the servants, agents, and employés of the defendant on a public crossing, by reason of the failure and neglect of the agents, servants, and employés of defendant not ringing the bell, or sounding the whistle on the engine, at a distance of at least 80 rods from the point where said animal was on the crossing, the bell or whistle or neither one of them being sounded within the said distance; that by reason of said negligence said animal was killed, to the damage of the plaintiff in the sum of $50." The answer admitted that defendants were corporations, and denied all other allegations of the petition. Plaintiff's evidence shows that his cow was struck and killed at a public crossing by an engine and passenger train running at a speed of 35 miles per hour; that the whistle was not sounded or the bell rung until the engine struck the cow; that the cow was crossing the track when struck. Defendants' evidence tends to show the whistle was sounded when the train was at least 80 rods from the crossing, and the bell was continuously rung until the crossing was passed; that the engineer did not see the cow coming towards the track until the train was within 100 yards of the crossing, and she could not have been seen at a greater distance; that, as soon as she came into view, the stock alarm was sounded and the...