Sloop v. St. Louis, I.M. & S. Ry. Co.

• Citation: 22 Mo.App. 593
• Parties: BENJAMIN SLOOP, Defendant in Error, v. SAINT LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Plaintiff in Error.
• Decision Date: 14 June 1886
• Court: Kansas Court of Appeals

22 Mo.App. 593

BENJAMIN SLOOP, Defendant in Error, v. SAINT LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

APPEAL from Schuyler Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed.

The case and facts are stated in the opinion of the court.

GEORGE S. GROVER, for the plaintiff in error.

I. It was not shown that defendant ever took possession of the property under the lease. The officer's return was not even prima facie evidence of such fact. Austin v. Coal & Mining Co., 72 Mo. 535.

II. There was no proof of any negligent or careless management of either train. The collision was unavoidable, and it was impossible to stop the trains in time. For that reason the jury should have been instructed to find for the defendant. Wallace v. Railroad, 74 Mo. 594; Lord v Railroad, 82 Mo. 139; Harlan v. Railroad, 18 Mo.App. 483; Welch v. Railroad, 20 Mo.App. 477.

III. The instructions given by the court assumed the existence of facts not in evidence, and were, therefore, erroneous. Gerren v. Railroad, 60 Mo. 405; Insurance Company v. Seminary, 52 Mo. 470; Peck v Ritchey, 66 Mo. 114. The instructions asked by defendant, and refused, properly declared the law. Authorities cited, supra.

SHELTON & DYSART, for defendant in error.

I. The proof shows that defendant took possession under the lease and was operating the road at the date of the injuries complained of. Sects. 748, 749, Rev. Stat.; Phillips v. Elwell, 14 Ohio St. 240; Bruce v. Holden, 21 Pick. 187; Wharton on Evidence (2 Ed.) 833; Phillips v. Evans, 64 Mo. 17.

II. That there was negligence and carelessness in the management of the trains, resulting in the injuries complained of, is clearly shown by the evidence. Turner v. Railroad, 78 Mo. 578; Goodwin v. Railroad, 75 Mo. 73; Kendig v. Railroad, 79 Mo. 494; Laws Mo., 1881, p. 79.

PHILIPS P. J.

This is an action against the defendant railroad corporation for killing a sheep and hog, the property of plaintiff. The ground of recovery is the imputed negligence of defendant in running its train of cars upon the animals in the town of Queen City. It is not claimed that the injury occurred at a street crossing. The only evidence of negligence relied on by plaintiff is the following statement of witnesses: The plaintiff testified to the fact that the sheep was found dead near the railroad track, under circumstances indicating it had been killed by a train of cars. He did not see the accident, but saw the train from a distance; thinks it was running about twenty-five miles an hour; and he heard no alarm. He made about the same statement respecting the hog, which was killed at a later day.

Another witness stated that he saw the accident. A drove of sheep started across the track in a run, as the train approached, and all got across save the one in controversy, which was caught and killed. This witness couldn't give the speed of the train; but stated: " The speed of this train was about the same as of every train, about as it usually runs; it didn't slacken; the whistle was sounded at the usual place below town, two or three hundred yards from where the sheep was killed, from the station. I heard no whistle just before the sheep was struck. If sheep had been on the track at that point it could have been seen half a mile by the engineer; some of the sheep were near the track, about eight feet off; there were no sheep on the track until the train got near them."

As to the hog, this witness stated that it was killed near a coal chute; the speed of the train was fast, but he could not state how fast. He heard the whistle of the train before it reached town, but heard none just before it struck the hog; that the train was off, when he saw the hog, fifty or one hundred yards. He could not say the engineer saw the hog before he struck it. " Hogs frequently dodge backward and forward across the track. You might look and see no hog on the track, and then look again and see one on the track. The hog was on the track but a moment before the train struck it." Other evidence tended to show that the speed of the train was about twenty-five miles an hour.

Defendant's engineer testified that he was running at the customary rate of speed, and that the whistle was sounding; that he did not discover the animals until it was too late to avoid the injury. There was no proof that the engineer had any knowledge that such animals frequented this locality.

On this evidence the court should have directed the jury, as requested by defendant, to...