Potter v. The Hannibal & St. Joseph Ry. Co.
| Decision Date | 06 July 1885 |
| Citation | 18 Mo.App. 694 |
| Parties | JAMES E. POTTER, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, J.
Reversed and remanded.
Statement of case by the court.
This is an action for damages on account of the killing of plaintiff's horse, in Clinton county, by reason of the alleged negligence of the defendant's servants and employes in operating and running its locomotives and cars.
The plaintiff introduced evidence as follows:
James E. Potter testified: " I am the plaintiff in this case I reside in the town of Turney, and am doing business there Turney is an incorporated town; the mare referred to was killed on the 15th day of June, 1882; I can not say what killed her; I was at my store when I was told by some parties that a horse had been killed; I went out to the track and found the mare badly crippled; she had bones broken and was cut in the hind parts, and had the appearance of having been struck by something; a train had just passed though the town on the Hannibal & St. Joseph railroad; it was a Hannibal & St. Joseph train; the mare was killed in the town limits and switch limits at Turney, in Clinton county Missouri; the track is not fenced; the whistle on this train was not sounded, nor bell rung; the train was going very fast, I suppose twenty-five to thirty miles an hour; it made no check, but passed on through; the track at that point is straight; the mare was worth about $150."
On cross-examination the witness said: " The train I referred to passed about nine o'clock at night; the mare was killed about fifty or sixty yards south of the depot at Turney; it is about one-half a quarter of a mile from the depot to the southern limits of the town; I was at my store about one hundred yards northeast of the depot, at the time the train passed; I mean to say I did not hear the train whistle; I am positive it did not whistle for stock; I do not think it whistled for the town; I was not listening to hear it whistle; it might have whistled and I not have heard it; my store is one hundred yards northeast of the depot; the train, when I saw it, was about one hundred and seventy-five yards north of where the mare was struck; I can tell how fast it was going by the rattle; I did not see the mare struck; other trains had passed that evening."
Dr. Estell testified on the part of plaintiff as follows: " I reside at Turney; I took notice of the train referred to by Mr. Potter; I recollect about the mare being killed; the train passed through the town very fast; it was running about twenty-five miles per hour; the whistle was not sounded, nor the bell rung; I saw the mare after the injury to her; I did not see the train strike her; she was worth at least $125."
On cross-examination the witness testified: " I spoke to others about how fast the train was running; I am certain the whistle was not sounded, nor the bell rung; I don't know whether it whistled for the town or not, but do not think it did."
Andrew Potter, on part of plaintiff, said: " I was at the depot on the night of June 15, 1882, when the train passed; it was a Hannibal & St. Joseph train; it passed through the town at a great rate of speed, and neither sounded the whistle nor rang the bell; I was standing at the depot when the train was half a mile away; I saw the mare there; she was some distance east of the track grazing; I did not see the train strike the mare; the train did not ring a bell or sound a whistle."
On cross-examination the witness said: " I noticed the mare grazing at a little distance from the track before the train came up; I did not see her struck by the train; I did not hear the train whistle for the station; there was no street at the point where the mare was struck."
Mr. Pastion, introduced by plaintiff, testified as follows: " On the night of June 15, 1882, I was at the depot at the time the Hannibal & St. Joseph train passed; I saw the mare grazing near the track; I did not see her struck; I saw her lying beside the track the next day with her injuries; the train passed through the town at a fast rate of speed; it did not ring the bell or sound the whistle; Turney is an incorporated town."
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