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

• Decision Date: 31 October 1874
• Citation: 58 Mo. 386
• Parties: WILLIAM H. OWENS, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

58 Mo. 386

WILLIAM H. OWENS, Respondent,

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

Supreme Court of Missouri.

October Term, 1874.

Appeal from Hannibal Court of Common Pleas.

James Carr, for Appellant, cited Briggs vs. Taylor, 28 Verm., 180; Louisville, &c., R. R. Co. vs. Ballard, 2 Metc., [Ky.] 180; Benno vs. Conn. River, &c., R. R. Co., 42 Verm., 375; Pitts vs. Fugate, 41 Mo., 405; Clark's Adm'r vs. Hann. & St. Joe R. R. Co., 36 Mo., 215; Wagn. Stat., § 5, ch. 6, p. 134; Sedg. on Stat. and Con. Law, 41, 87.

George Shields, for Respondent, cited Calvert vs. Hann. & St. Joe R. R., 34 Mo., 242; Garner vs. Hann. & St. Joe R. R., 34 Mo., 235; Thompson vs. N. Mo. R. R., 51 Mo., 190; Shearm. Neg., 46; 11 Wis., 160; 18 N. Y., 248; 37 Vt., 50; Wagn. Stat. 134, § 5; Lloyd vs. Hann. & St. Joe. R. R., 53 Mo., 509; Brady vs. Connelly, 52 Mo., 19; State, ex rel., Headlee vs. Henslee, 54 Mo., 518; Polston vs. See, 54 Mo., 291-5.

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover of the defendant, for damages occasioned to the plaintiff by killing of two head of cattle belonging to the plaintiff, by the negligence of the agents of the defendant in conducting a locomotive and train of cars on the defendant's railroad.

The petition consisted of two counts, the first of which charged that on a day named, defendant, by its agents, employees, cars and locomotives, carelessly and negligently ran over and killed of the property of plaintiff, one steer of the value of seventy-five dollars; that the defendant has not paid for the same, wherefore judgment is prayed, etc. The second count is exactly like the first, except the animal charged to have been killed is described to be one bull, of the value of eighty dollars.

To each of these counts the defendant answered, denying the negligent killing of the animals therein respectively named.

The evidence on the part of the plaintiff tended to prove that the steer and the bull named in the different counts of the petition were run against and killed by the locomotive and cars of the defendant, at a point on the road where there is a public road-crossing; that the killing was done after dark in the evening, but that the night was light enough to see the cattle on the road for some considerable distance; that the head-light was burning brightly at the time, which would enable persons on the locomotive to have seen the cattle standing on the road for several hundred feet; that the train was running at a rapid speed, and that the speed was not reduced or abated as it approached the road-crossing where the cattle were standing; that no bell was rung, or whistle sounded on the locomotive or train of cars, until it approached to within less than fifty yards of the road-crossing, where the cattle were standing, and then, that the speed of the train was rather increased than diminished until it struck and killed the cattle.

The evidence further tended to prove, that the steer was worth from forty to seventy-five dollars, and that the bull was worth from fifty to eighty dollars.

The defendant, on cross-examination of one of the plaintiff's witnesses, offered to prove, by said witness, that from the condition and disposition of the cattle at the time of the killing, they would not have been apt to have run from the road from the mere noise occasioned by the ringing of a bell or the sounding or blowing of a steam whistle. This evidence was objected to and excluded by the court, and the defendant excepted.

On the part of the defendant the evidence tended to rebut any evidence of negligence, and to show that the night was dark and the cattle were not seen by the engineer until it was wholly impracticable to stop the speed of the train in time to prevent a collision with the cattle; and that in such case it was the safest practice to increase rather than diminish the speed of the train, so as to throw the cattle entirely off the track, and thereby prevent the throwing of the train from the track, and thus lessen the danger to the passengers.

The evidence of the defendant also tended to prove that the whistle on the engine was sounded more than eighty rods from the road-crossing, and continued at intervals until the crossing was reached. There was evidence, also, to the effect that plaintiff's bull and steer were permitted to run at large outside of any inclosure for a great part of the time, and were so running at large at the time of the accident, although the bull had generally been kept up in a pasture, or attempted to be so kept up, but would break out of the pasture and was then suffered by the plaintiff to remain out running at large.

When the evidence was closed, the court, at the request of the plaintiff, instructed the jury as follows: “It was the duty of the servants and employees of defendant in charge of the locomotive and train, to cause the bell on the locomotive to be rung at a distance of at least eighty rods before reaching the crossing where the cattle were killed, and to keep said bell ringing until the train had reached the crossing, or to cause the steam whistle to be sounded at least eighty rods from said crossing, and cause it to be sounded at intervals until the locomotive reached said crossing; and if the jury are satisfied by the evidence that defendant's servants or employees in charge of said locomotive and train, did neglect to cause said bell to be rung, as above stated, and also further neglect to cause said whistle to be sounded, at least eighty rods before reaching said crossing, and did neglect to cause said whistle to be sounded at intervals until said train reached said crossing; such neglect to ring the bell, or sound the whistle, is, in contemplation of law, sufficient to charge defendant with any damage to plaintiff's stock resulting therefrom; and if the jury further find that the killing of plaintiff's stock was caused by such negligence, they should find the issue for plaintiff” “2nd. The court instructs the jury, that if they believe from the evidence, that by the negligence or carelessness of the agents or employees of defendant in the operation of the locomotive engine and cars of the defendant the plaintiff's stock was run against and killed, then they will find for plaintiff.”

“3rd. The court instructs the jury that if they find for plaintiff, then they will assess his damages at the reasonable market value of the stock killed at the time of such killing, with six per cent. interest thereon from said time of killing.”

“4th. That it being admitted on the trial, that the stock of plaintiff, described in the petition, was struck and killed by defendant's locomotive and train at a point on defendant's road where the same is crossed by a public highway, it is incumbent on plaintiff to prove, to the satisfaction of the jury, that the servants or employees of defendant in charge of said train, were, at the time of said killing, negligent in the management of said train, and that said killing was caused by such negligence, and unless the jury find from the evidence, that the killing was caused by some negligence of defendant's servants or employees in charge of the locomotive and train, they should find the issue for defendant.”

“5th. If the jury find, from the evidence, that the fact that the stock killed was on defendant's road at the crossing was not known to the engineer until the locomotive had reached a point so near the crossing, that to check the speed of the train, or endeavor to stop it, would have endangered the safety of the passengers, then the failure of the engineer to try to check the speed of said train, or his failure to try to stop the train, was not such negligence as to entitle plaintiff to recover in this action, nor would any acceleration of speed necessary to the safety of the train or passengers under the circumstances above stated, entitle plaintiff to recover.”

The defendant objected...