Pryor v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1878
• Parties: PRYOR v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY.
• Court: Missouri Supreme Court

69 Mo. 215

PRYOR

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Schuyler Circuit Court.--HON. JOHN W. HENRY, Judge.

Wells H. Blodgett and Higbee & Shelton for appellant.

NORTON, J.

On the 25th day of August, 1875, plaintiff filed a statement before M. H. Lewis, a justice of the peace, Prairie township, in Schuyler county, complaining, among other things, that defendant, in June, 1875, ran its train of cars upon one of plaintiff's cows by its carelessness and negligence, whereby said cow was crippled and damaged; that said crippling was done on a part of defendant's road in said township, not fenced on the sides thereof, and passing along and through uninclosed prairie lands, without cattle guards at the crossings. Summons was issued and served, and on September 21st 1875, the cause was tried, resulting in a judgment for plaintiff. An appeal was regularly taken to the circuit court of said county, and upon a trial de novo, judgment was rendered for plaintiff for $15.

It was agreed by counsel for plaintiff and defendant that the injury complained of occurred on the line of defendant's railroad, within that portion of the town of Greentop, a duly incorporated town in Schuyler county which is laid off into blocks, lots and streets, the plat of which town is duly executed and acknowledged, showing that it is so laid off as before stated, and that said plat was on file in the proper office previous to the date of the injuries complained of; the cow was struck and crippled by a heavy through freight train going south, moving at the rate of six miles per hour, at a point about half way up a heavy grade about one mile long, and that the cow was struck in he night.

Defendant asked the following instructions, of which those numbered one and four were given, and three, five and six refused: 1. The court declares that the killing and crippling of plaintiff's stock having occurred within that part of the town of Greentop platted and laid off on both sides of defendant's road into blocks, lots, streets and alleys, the plaintiff cannot recover, unless he proves by a preponderance of the testimony that the defendant was guilty of actual negligence in killing and crippling the stock sued for. 3. If the court finds from the testimony that plaintiff's cow was crippled by a heavy through freight train moving south, and at a point about half way up a heavy grade about one mile in length, and between fifty and one hundred yards south of a sharp curve, and when so striking said cow said train was moving at the rate of six miles per hour, the verdict will be for the defendant on that issue. 4. If said train could not have been safely checked or stopped, so as to avoid a collision with said cow, the verdict will be for defendant on that issue. 5. If, in case said train had been stopped to avoid a collision with said cow, it would have been unable to ascend said grade without backing down to the level at the foot of said grade, the verdict will be for the defendant on that issue. 6. In actions for killing stock within that portion of towns and cities platted and laid off into blocks, lots, streets and alleys, before plaintiff can recover...