Stoneman v. Atlantic & Pacific R.R. Co.

• Decision Date: 31 January 1875
• Citation: 58 Mo. 503
• Parties: ROBERT STONEMAN, Respondent, v. THE ATLANTIC & PACIFIC R. R. CO., Appellant.
• Court: Missouri Supreme Court

58 Mo. 503

ROBERT STONEMAN, Respondent,

v.THE ATLANTIC & PACIFIC R. R. CO., Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Newton Circuit Court.

J. N. Litton, for Appellant, cited Great West. R. R. vs. Geddis, 33 Ills., 307; Skouten vs. Wood, 57 Mo., 380; Galena & Chicago R. R. vs. Loomis, 13 Ills., 548; 1 Redf. R. W., 478, § 128-9; Sh. & Redf. Neg., 564, § 485 a;Steves vs. O. & S. R. R., 18 N. Y., 425; Pittsburg vs. Karris, 13 Ind., 89; C. & R. I. R. R. vs. McKim, 40 Ills., 229; Karle vs. K. C., St. J. & C. B. R. R., 55 Mo., 483; Toledo R. R. Co. vs. Foster, 43 Ills., 417.

J. C. Cravens, for Respondent, cited Wagn. Stat., 310, § 38; Rohback vs. Pac. R. R., 43 Mo., 187; Biglow vs. N. M. R. R. 48 Mo., 510; Tabor vs. Mo. Valley R. R., 46 Mo., 353; Gorman vs. Pac. R. R., 26 Mo., 441; Burton vs. N. M. R. R., 30 Mo., 372; Calvert vs. Hann. & St. Jo. R. R., 34 Mo., 242; Calvert vs. Hann. & St. Jo. R. R., 38 Mo., 467; Powell vs. Hann. & St. Jo. R. R., 35 Mo., 457; Brown vs. Hann. & St. Jo. R. R., 33 Mo., 309.

NAPTON, Judge, delivered the opinion of the court.

This action was brought under the 38th section of the corporation act (1 Wagn. Stat., p. 310) to recover the value of a horse killed by a locomotive of defendant at the crossing of a county road.

The only question presented here is as to the propriety of the instruction given by the court to the jury, which was as follows:

“The court instructs the jury, that if they believe from the evidence, that on the 13th day of September, 1873, the plaintiff's roan mare was struck by defendant's engine, while running one of its trains and killed, and that said mare, at the time of the killing, was on a public road which was crossed by defendant's track, and that defendant failed to ring or cause to be rung a bell, when at a distance of at least eighty rods from said crossing, and to continue to ring such bell until said engine and train had crossed such road; or if they believe that the defendant or its agents failed to sound a steam whistle attached to the engine, when at least eighty rods from such crossing, and continued to sound such whistle at intervals until the engine and train had crossed the said road, they will find for the plaintiff.”

And the court refused to give the following instruction asked by defendant:

“The fact of the killing of the animal by defendant's engine at a public road crossing does not raise the presumption that the killing was the result of negligence on the part of the defendant's servants, unless the jury shall find that the failure to ring the bell or sound the whistle upon approaching such road crossing was the direct cause or occasion of such killing, and that the same would not have occurred if such whistle and bell had been sounded and rung.”

The statute, which requires the ringing of bells or sounding of a steam whistle under specified circumstances, declares that the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect.

The instruction given was defective in not leaving to the jury to find whether the damages resulted from the negligence of the defendant in failing to ring the bell or sound the whistle. Of course, if the damage had no connection with the negligence, the defendant was not responsible, and the instruction asked by defendant should have been given, or the first instruction should have been modified and qualified so as to leave the question to the jury.

As a matter of law, the court correctly declared the failure to ring the bell or sound the whistle at the point designated was negligence, but whether that negligence occasioned the damage complained of was a question of fact, upon which the jury had a...