Sullivan v. Missouri Pac. R. Co.

• Decision Date: 09 May 1919
• Docket Number: No. 2439.,2439.
• Citation: 211 S.W. 903
• Parties: SULLIVAN v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

211 S.W. 903

SULLIVAN v. MISSOURI PAC. R. CO.

No. 2439.

Springfield Court of Appeals. Missouri.

May 9, 1919.

Appeal from Circuit Court, Bollinger County; Peter Huck, Judge.

Action by Ross Sullivan against the Missouri Pacific Railroad Company, a corporation. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

James F. Green and U. J. White, both of St. Louis, and W. C. Russell, of Charleston, for appellant.

Mozley & Blanton, of Benton, for respondent.

FARRINGTON, J.

The respondent recovered a judgment against the defendant in the sum of $120, from which an appeal is taken by the defendant railroad company. There were two assignments of error—the first, that there was no testimony to support the judgment; and, second, that the court erred in overruling defendant's demurrer to the testimony.

The petition alleged that the defendant, the Missouri Pacific Railroad Company, operates and maintains a line of railroad running in Bollinger county through the village of Glen Allen; that about the 10th or 12th of August, 1917, he was the owner of two steers, valued at $120; that they were at or near a crossing of a public road and the defendant's said line of railroad; that the agents of the defendant in charge of one of its trains, on approaching said crossing, failed and refused to blow the whistle or ring the bell for said crossing; and that by reason of such failure the plaintiff's two steers were killed.

The defendant, Missouri Pacific Railroad Company, answered, admitting that it was a corporation organized and, doing business under the laws of the state of Missouri, and further denied each and every allegation in the petition.

The proof adduced by the plaintiff, without going into detail, shows that he had two steers which were killed at a railroad crossing at Glen Allen, in Bollinger county, by a railroad train, and that this train, on approaching this crossing, did not give the statutory signals, as is required by section 3140, Revised Statutes of 1909.

The defendant offered no proof whatever. There was, therefore, no evidence in the case even tending to show that the failure of giving the statutory signals was not the cause of the injury. This phase of the case has been decided by this court in the case of Weltch v. Railroad, 190 Mo. App. 213, 176 S. W. 261, where the law governing the facts appearing here is discussed and settled. The defendant, however, contends that there is no proof in the record before us that the...