Missouri Pac. Ry. Co. v. Pierce

• Decision Date: 07 January 1885
• Citation: 5 P. 378,33 Kan. 61
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. W. J. PIERCE
• Court: Kansas Supreme Court

5 P. 378

33 Kan. 61

THE MISSOURI PACIFIC RAILWAY COMPANY v. W. J. PIERCE

Supreme Court of Kansas

January 7, 1885

Error from Miami District Court.

ACTION by Pierce against The Railway Company, to recover damages for the negligent killing of his cow. Trial at the February Term 1884, and judgment for plaintiff for $ 50 damages, and costs. The defendant company brings the case to this court. The opinion states the facts.

W. A Johnson, for plaintiff in error.

Brayman & Sheldon, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action brought by W. J. Pierce against the railroad company, to recover damages for the negligent killing of a cow owned by him. It was alleged by the plaintiff that on the 22d day of May, 1882, in the city of Paola, Miami county, Kansas, the defendant with its engine and cars carelessly and negligently ran against and killed the animal, and that it was not done through any carelessness or neglect on the part of the plaintiff. The railway company denied all allegations of carelessness or negligence on the part of its employes, and claimed that the plaintiff was guilty of contributory negligence, and was not entitled to recover. A trial was had before the court and a jury, and the verdict and judgment were given against the defendant railway company. It brings the case here, alleging error of the court in its instructions to the jury, and in overruling the motion for a new trial.

It appears that on May 22, 1882, several cows belonging to plaintiff' were being driven by his son along Locust street, in the city of Paola, to a pasture on the other side of the defendant's railroad track, and that one of the cows was struck and killed by a passing freight train at the point where the railroad intersects Locust street, and within the limits of the city. Some distance east of Locust street, and at the eastern limits of the city, there is a public highway; the train which killed the cow was approaching from the east, and considerable testimony was offered by the plaintiff tending to show that the persons in charge of the train had failed to sound the whistle attached to the locomotive, at least eighty rods before reaching the eastern boundary of the city. Among the instructions the court gave to the jury are the following:

"7. The law of this state requires every railroad company to attack a steam whistle to each locomotive engine, which is to be sounded three times, at least eighty rods from the place where the railroad shall cross any public road or street. In this case, it is alleged that the injury complained of is within the limits of Paola, a city of the second class; and if this be true as alleged, the whistle should be blown three times, at least eighty rods before crossing the highway on the outside of the city limits.

"8. The jury are instructed that the neglect to sound the whistle three times of an engine, as mentioned in said statute, while it is negligence, yet it is not of itself such negligence as will justify a recovery for damages to persons or property injured on the track. To entitle the plaintiff to recover for such injury, it must appear from the evidence that the injury was the result of such omission to sound the whistle; it is not enough to create a liability for injuries caused by a railroad train, to prove that the whistle was not sounded three times. The jury are required to further find and believe from the evidence, that the injury complained of was caused by reason of such neglect. Whether the failure to sound the whistle on approaching the highway by the train in question was or was not the cause of the injury complained of, is a question of fact, to be determined by the jury on consideration of all the evidence.

"9. The jury are instructed that, in a suit against a railroad company for injuries inflicted at a highway-crossing, if it appear from the evidence that no whistle sounded three times within the distance of eighty rods, as hereinbefore explained, before reaching the crossing, and if it appear from the evidence the company was guilty of other negligence which may have caused the injury, and it is doubtful whether the injury was caused by not blowing the whistle or by such other negligence or by both combined, then the company will be...