Roberts v. Wabash Railroad Co.

• Decision Date: 22 May 1905
• Citation: 87 S.W. 601,113 Mo.App. 6
• Parties: J. H. ROBERTS, Respondent, v. WABASH RAILROAD CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 601

113 Mo.App. 6

J. H. ROBERTS, Respondent, v. WABASH RAILROAD CO., Appellant

Court of Appeals of Missouri, Kansas City

May 22, 1905

Appeal from Boone Circuit Court.--Hon. Alex. H. Waller, Judge.

AFFIRMED.

Affirmed.

Geo. S Grover and N. T. Gentry for appellant.

(1) There was no evidence to show that there was a failure to ring the bell; hence the demurrer to the evidence should have been sustained. Cathcart v. Railway, 19 Mo.App. 118; Summerville v. Railway, 29 Mo.App. 50. (2) The evidence in this case shows affirmatively and conclusively that the failure to ring the bell was not the cause of the injury to plaintiff's mare. Plaintiff's witness King, testified that she slipped the bridle and started to cross defendant's track after the whistle had been sounded, that he did all that he could to keep her off the track, but that she was determined to go on. There should some connection be shown between the killing of this animal at a public crossing, and the failure to ring the bell. Alexander v. Railway, 76 Mo. 494; R. S. 1899, sec 1102; R. S. 1879, sec. 806; Session Acts 1881, page 79; Kennedy v. Railway, 105 Mo. 284. (3) Error was also committed by the refusal of the trial court to give defendant's instruction numbered 2. The law presumes that the servants and agents in charge of a train of cars do their duty by complying with the statutory requirements. Jewett v. Railway, 50 Mo.App. 547; Cathcart v. Railway, 19 Mo.App. 118; Guest v. Railway, 77 Mo.App. 258.

Thos. S. Carter and Gillespy & Conley for respondent.

(1) It has been decided time and time again by this court that negative evidence of witnesses in a position to hear, that the bell was not sounded, or other alarm given, is sufficient to send the case to the jury, even against the positive evidence that the bell was rung or other proper alarm given. This is so well settled that it seems needless to cite authorities in support of the same. Reed v. Railway, 94 Mo.App. 371; Milligan v. Railway, 79 Mo.App. 393; Young v. Railway, 72 Mo.App. 263; Lockhart v. Railway, 89 Mo.App. 100; Underhill on Evidence, page 565. (2) Again, defendant insists that the failure to ring the bell was not the cause of the injury. Now, it is well-settled law that when the statutory signals are omitted when approaching a street or public crossing, and injury results, that a prima facie case is made out and the burden is shifted to defendant to show that the omission of the signal was not the cause of the accident, and which it must do to the satisfaction of the jury. McCormick v. Railway, 50 Mo.App. 109, and authorities cited; Barr v. Railway, 30 Mo.App. 248-256, and authorities cited; Huckshold v. Railway, 90 Mo. 548. (3) When there is any evidence, however slight, either direct or inferential, its sufficiency must be determined by the jury. Even when there is any evidence tending to prove plaintiffs' claim, the case should go to the jury. Twohey v. Fruin, 96 Mo. 104; George v. Railway, 40 Mo.App. 433; Taylor v. Short, 38 Mo.App. 21; Thompson on Trials, sec. 2246; 112 Mo. 629, 630. (3) Presumptions can only be indulged in when there is an absence of testimony on the question. Haycraft v. Grigsby, 88 Mo.App. 354; Sackberger v. Lodge, 73 Mo.App. 38. (4) The most astounding proposition of all is that the verdict is excessive.

OPINION

BROADDUS, P. J.

This suit was begun before a justice of the peace to recover sixty dollars damages for the killing of plaintiff's mare and four dollars for the destruction of the harness the mare had on at the time she was killed.

The plaintiff drove his mare in a buggy from the country to the town of Sturgeon on September 2, 1903. He unhitched the animal from his vehicle and tied her, with the harness on, to a post about one hundred yards distant from defendant's track. By some means she managed to get loose and started over defendant's track at a public crossing in the town. While on the crossing, or near it, defendant's train approached at a rapid rate of speed and struck the mare killing her and at the same time destroying the harness. The plaintiff seeks to recover upon the ground that defendant's engineer in charge of the train did not ring the bell or sound the whistle. On the other hand, defendant asserts that there was evidence that the bell was rung and the whistle sounded, and that there was no evidence to the contrary. Two witnesses--Shearer and Cook--testified for plaintiff on this point. The former stated that he did not hear the bell or the sounding of the whistle. The latter was asked to state whether the whistle was sounded. He answered: "I think not; if so, I did not hear it; I was right there, and if the whistle was sounded or the bell rung, I did not hear it." Both witnesses were only a short distance from the crossing at the time. Shearer, however, stated that he did not give the matter any particular notice, as he was talking to others present at the time of the occurrence. The testimony of Cook is not altogether of a negative character. At least, he was in a position to hear whether the bell was rung or the whistle sounded, which was sufficient to take the case to the jury. [Lockhart v. Railway, 89 Mo.App. 100; Underhill on Evidence, p. 565; ...