Rhinehart v. St. Louis & S. F. R. Co.

• Decision Date: 18 February 1908
• Citation: 129 Mo. App. 168,108 S.W. 103
• Court: Missouri Court of Appeals
• Parties: RHINEHART v. ST. LOUIS & S. F. R. CO.

108 S.W. 103

129 Mo. App. 168

RHINEHART v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

February 18, 1908.

1. RAILROADS — INJURIES TO ANIMALS — ACTION — INSTRUCTIONS.

Where the petition alleged that defendant's train was negligently run into plaintiff's mare, while the evidence showed that the animal while running alongside of the track became frightened and dashed against the side of the train, and that the negligence, if any, of the train operatives consisted in not taking care to avert the injury after discovering that the animal was in danger of hurting herself by her frantic movements, an instruction permitting recovery if the train was negligently run into the animal, and the refusal of an instruction to find for defendant if the animal was killed by running against the side of the train, was error.

2. SAME — CARE AS TO ANIMALS SEEN ON OR NEAR TRACKS.

It is the duty of train operatives to consider the known habits of horses or other animals running alongside the track, and, if it would be apparent to a person of reasonable care that an animal is likely to be killed in consequence of running in front of or against a train, to do what can reasonably be done to prevent an accident.

3. SAME — INJURIES TO ANIMALS NEAR TRACK — INSTRUCTIONS.

In an action for the killing of plaintiff's mare, which, while running alongside of the track, became frightened and dashed into defendant's train, an instruction ignoring the question of whether or not the train operatives saw, or, if prudent, would have seen, the mare in peril in time to avert an accident, and merely requiring the jury to find that the operatives saw the mare in time to avoid injuring her by the exercise of ordinary care, was erroneous, since the fright of the mare and other circumstances must have been such as to warn a prudent person that the continued movement of the train was likely to cause an accident.

4. SAME — QUESTIONS FOR JURY.

In an action for the killing of plaintiff's mare, which, while running alongside of the track, became frightened and dashed into defendant's train, the question whether the train operatives were negligent in not stopping the train after discovering the presence of the animal held for the jury.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by D. F. Rhinehart against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Woodruff & Mann, for appellant.

GOODE, J.

On January 19, 1906, a mare belonging to plaintiff was killed in a collision with one of defendant's trains. Defendant operates a line of railway in Dent county, Mo., where the accident occurred. The scene was at Spring Creek, a stream crossed by the railway. About 400 yards north of the bridge are stockyards, and from these yards southward to the bridge the right of way is fenced on the west side of the track. The space between the track and the fence is 40 or 50 yards wide for a considerable distance, but narrows to about a plank's length, or from 16 to 20 feet, at the south end, where the fence is connected with the bridge. In front of the stockyards, and on the west side of the track, and running parallel with the main line, is a side track. A considerable stretch of defendant's right of way is not fenced on the east side, but this is immaterial on the question of defendant's liability, as the petition counts on negligence at common law. Persons reached the stockyards on the west side of the right of way, along a road which leads to them after passing over the tracks at a regular crossing. Plaintiff had lent the mare to a friend who rode her to the stockyards, and hitched her to a fence to stand while he helped load a car with stock. While he was thus engaged a train came along, composed of an engine and three or four cars. This train frightened the mare, and she broke loose, and ran down the ground between the tracks and the west fence, toward the creek. While running she approached the train once or twice, but never near enough to get on the switch track, which, as said, was...