Milburn v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 30 April 1885
• Citation: 86 Mo. 104
• Parties: MILBURN v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 104

MILBURN

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

REVERSED.

Strong & Mosman for appellant.

(1) The court erred in overruling defendant's demurrer to the case made by plaintiff's evidence: ( a) Because there was no evidence that the engineer saw the cows in time to avoid injuring them by stopping the train. Yarnall v. Ry. Co., 75 Mo. 583; Frick v. Ry. Co., 75 Mo. 608; Zimmerman v. Ry. Co., 71 Mo. 484. ( b) Because there was no evidence from which the jury could rationally infer that the failure of the engineer to see the cows in time, if he did so fail, was a negligent failure. Smith v. H. & St. J. Ry. Co., 37 Mo. 287; Bemis v. Ry. Co., 42 Vt. 375; Price v. Ry. Co., 31 N. J. 238; Darling v. Ry. Co., 121 Mass. 118. ( c) Because the law did not require the engineer to stop his train even if he saw the cows, in order to avoid injury to them, and negligence cannot be predicated from the single fact that he failed to check or stop the train. He was only required to use ordinary care to avoid injuring them, by which is meant the use of such means as, in the experience of careful engineers, have been generally found to be sufficient, in preventing contact with them. Bemis case, 42 Vt. 375; Little Rock v. Railroad, 37 Ark. 593; Smith v. Railroad, 34 Ia. 506; Price v. Railroad, 31 N. J. L. 238; Price v. Railroad, 32 N. J. L. 19; Bell v. Railroad, 72 Mo. 50; Gumz v. Railroad, 52 Wis. 672; McCandless v. Ry. Co., 45 Wis. 365. ( d) There was no evidence that it was in the power of the engineer to stop the train in the distance between the point where he could have first seen the cows, and the crossing. ( e) Because there was not a scintilla of evidence authorizing the submission of the question of negligence to the jury. Darling v. Railroad, 121 Mass. 118; McCandless v. Ry. Co., 45 Wis. 365. The demurrer should have been sustained, because the plaintiff's own testimony showed that his negligence directly contributed to occasion the injury to his cows. Grubble v. Sioux City, 38 Ia. 390; Lawrence v. Ry. Co., 42 Wis. 322; Bennett v. Ry. Co., 19 Wis. 145; Mich. Southern v. Fisher, 27 Ind. 96; Jeffersonville, etc., v. Huber, 42 Ind. 173; Jeffersonville, etc., v. Adams, 43 Ind. 402; Cinn. Ry. Co. v. Street, 50 Ind. 225; Pitzner v. Schinnick, 39 Wis. 129; B. & M. Co. v. Wendt, 12 Neb. 80; Railroad v.Phillipi, 20 Kas. 9; Clark v. Railroad, 11 Barb. 112; Smith v. Railroad, 34 Ia. 506: Curry v. Railroad, 43 Wis. 684; Callahan v. Warne, 40 Mo. 131.

A. H. Vories for respondent.

(1) The defendant was liable if plaintiff's cows were on the crossing when the trains came in sight, and the servants of defendant could have seen them, by the exercise of reasonable care and diligence, in time to avoid running on said stock without endangering passengers or trains. The measure of defendant's liability does not depend on the fact whether the employes of defendant actually saw the cows in time to avoid the injury. Plaintiff's second and third instructions were based on the evidence and pleadings, and declared the law properly, except the latter part of the second, added by the court, as to failure to ring the bell or blow the whistle not being negligence. But plaintiff does not complain of that now. Porter v. H. & St. J. Ry. Co., 71 Mo. 78; Burnham v. St. L., I. M. & S. Ry. Co., 56 Mo. 342; Clardy v. Same, 73 Mo. 576; Harlan v. St. L., K. C. & N. Ry. Co., 65 Mo. 22; Pryor v. St. L., K. C. & N. Ry. Co., 69 Mo. 215; Bell v. H. & St. J. Ry. Co., 72 Mo. 54. (2) Defendant, from the pleadings in the case, was in no condition to raise any question of contributory negligence of plaintiff. It was necessary, if it relied on such negligence to set it up in the answer. Plaintiff did not aver in his petition anything to release defendant from such plea. Karle v. K. C., St. J. & C. B. Ry. Co., 55 Mo. 482. (3) Plaintiff did not directly contribute to the injury by his own negligence. His testimony shows that he did not have time to drive his cow off the crossing before she was struck by the train; and even if he had time to do so, his failure to do it did not contribute directly, but only remotely, to the injury, and whether plaintiff's negligence was the proximate cause of the injury, was a question for the jury. Price v. Railroad, 72 Mo. 419. If plaintiff only remotely contributed to the injury, and the employes of defendant were the direct and immediate cause thereof, and might have prevented it by prudence and care, the defendant was liable. Burham v. St. L. & I. M. Ry. Co., 56 Mo. 338; Schaabs v. Woodburn Sarven Wheel Co., 56 Mo. 173; Morrissey v. Wiggins Ferry Co., 43 Mo. 384; Hullsenkamp v. Citizens' Ry. Co., 37 Mo. 537; Liddy v. St. Louis Ry. Co., 40 Mo. 506. There was no herding of plaintiff's cattle on the track. The cattle had a right to be on the public road, and the crossing was a public one.

HENRY, C. J.

This action is to recover the value of two cows killed by defendant's train of cars at a public crossing. Plaintiff had judgment, from which defendant has appealed. The petition contains two counts, one for killing a cow on the fourteenth, and the other for killing a cow on the twenty-third of June, 1881. The killing of the cow on the fourteenth occurred about sundown, and the other in the forenoon of the twenty-third, about nine o'clock. Both cows were killed by regular passenger trains.

The evidence for plaintiff tended to prove that the cows could have been seen, by one on the engine, from the whistling post south of the crossing, and at any point between that post and the crossing, a distance of eighty rods. That both trains were going north and running very fast, and in neither instance was the speed of the train checked. Plaintiff also testified that on the fourteenth of June, 1881, he walked into his field and saw the cow standing on the crossing two hundred yards from him. That he started off across his field, and went twenty or thirty rods and came back to the place he started from, and the cow was still standing on the crossing. This was about five or six o'clock. That when he got back to the place he started from he heard the train, which was the regular evening passenger train. He testified, as to the cow killed on the twenty-third, that he was about two hundred yards from the crossing, and saw the cow on it, and a few minutes after saw the train coming north, about one-half mile off, about 9 o'clock, A. M. That he stood and looked at the cow. That his boys were ploughing about half-way between him and the cow. His son testified that he was ploughing in the field the day the first cow was killed, and was one hundred yards from her. Saw her standing on the track for nearly a half hour before the train struck her. That he was standing still when the train struck her. That his father's cattle habitually stood on the crossing when they came home at night.

Gharkey, for plaintiff, testified that he was at Milburn's house when the cow was killed on the fourteenth; that plaintiff was at the house just before it occurred. That witness spoke of the cow being on the crossing in plaintiff's hearing. He, plaintiff, then went north into the field from the house, to a point nearly west of the crossing. “It was a good little bit after that till the cow was killed.”

Defendant asked an instruction in the nature of a demurrer to the evidence, which was overruled. This is a peculiar case. The plaintiff's cattle habitually stood upon this crossing in the evening. He saw both cows on the crossing before they were killed. When the first one was killed his attention was called to the fact that she was on the crossing a little before the train going north was due. He was then at his house in a southwesterly direction from the crossing, and instead of going toward the crossing, he went north to a point west of the crossing. His own testimony shows that if he had made such an effort as a prudent man, desiring to save the cow, would have made, he could have driven her from the crossing before the train reached it. He made no...