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

• Decision Date: 30 April 1882
• Citation: 75 Mo. 518
• Court: Missouri Supreme Court
• Parties: SCHOOLING v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

75 Mo. 518

SCHOOLING

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

Supreme Court of Missouri.

April Term, 1882.

Appeal from Sturgeon Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Wells H. Blodgett for appellant.

F. T. Jarman for respondent.

NORTON, J.

This action was brought to recover the value of a certain cow, alleged to be the property of the plaintiff, and to have been killed by defendant's cars on or about the 26th day of February, 1876, near its depot at its station known as Sturgeon, Boone county.

The cause being tried, plaintiff obtained judgment, from which defendant has prosecuted his appeal to this court, and seeks a reversal on the ground that the court erred in refusing to instruct the jury that upon the pleadings and evidence the plaintiff could not recover, and in giving the following instruction for plaintiff: “If the jury believe from the evidence that defendant left hay on the side-track of their road for several days in succession previous to and up to the time of the killing of plaintiff's cow, and that said cow was enticed on said track by said hay, then defendant was guilty of negligence, and they should find for plaintiff.”

Plaintiff based his right to recover on the following allegations in the petition: “Plaintiff further states, that while aforesaid defendant was running its cars over said track, and transacting business as a common carrier, under the aforesaid name and style, it did carelessly and negligently run over, cripple and kill one cow, the property of plaintiff, said negligence consisting of the said company leaving hay standing upon the said track belonging to said company for several days in succession, thereby enticing said cow upon said track, thereby being the immediate cause of said cow's death.”

We are satisfied from a careful examination of the evidence offered on the trial that it wholly failed to establish the allegation relied upon for a recovery. The evidence tended to show that the cow in question was killed at Sturgeon, a station on defendant's road, at which place defendant received and shipped hay, as it was bound to do when offered for transportation. Levering v. Union Trust & Ins Co., 42 Mo. 88; Angel on Carriers, § 123. There was no evidence that hay was left strewn on the track of defendant's road. There was evidence that the hay received by defendant was loaded into its cars and the cars then loaded, were left standing on the track not “for several days in...