Tabor v. Missouri Valley R.R. Co.

• Decision Date: 31 August 1870
• Citation: 46 Mo. 353
• Parties: DAVID TABOR, Respondent, v. MISSOURI VALLEY RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

46 Mo. 353

DAVID TABOR, Respondent,

v.MISSOURI VALLEY RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fifth District Court.

Stringfellow & Donivhan, and Strong & Chandler, for appellant.

Pike & Hereford, for respondent, cited Redf. on Railw. 393; Huelsenkamp v. Citizens' Railway Co., 34 Mo. 34; Kennedy v. North Mo. R.R. Co., 36 Mo. 351.

WAGNER, Judge, delivered the opinion of the court.

Respondent brought his action against the appellant for damages in killing two horses belonging to him, and also for injury occasioned to his harness and wagon in being run over by a train on appellant's track. The accident occurred at a public crossing, and the evidence shows that about dark, on the 10th of September, 1867, the respondent was driving his team slowly across the track; that no trains were due at that hour, and that, as the horses stepped upon the track, the engine of a construction train struck them and killed them both, and did injury to the harness and wagon. It further appears that the train was running very fast, and that the parties in charge of it neither rang the bell nor sounded the whistle before approaching the crossing, as the statute requires.

The court gave three instructions for the respondent. The first told the jury that if they believed from the evidence that respondent sustained injury to his horses, wagon, and harness, by reason of the negligence, carelessness, or mismanagement of the agents or employees of the appellant whilst running or managing a locomotive car or train at the crossing aforesaid, they should find for the respondent.

The second instructed the jury that it was the duty of the appellant to commence ringing the bell or blowing the whistle at a distance of eighty rods from the crossing of the public traveled road, and to keep ringing the bell or sounding the whistle until the locomotive and train had crossed the road, and that if it appeared from the evidence that at the time of the accident no bell was rung or whistle blown, the jury were at liberty to infer negligence or carelessness in the agents or employees of the road, and should find for the respondent, unless they should further find that he, on his part, was guilty of such negligence as contributed directly to produce or cause the injury.

The third instruction declared that if the jury should find that, owing to the train running out of the usual time of trains crossing the public traveled road, and that, owing to the location and construction of the crossing and the topography of the adjacent country, more than ordinary care should have been used by the persons in charge of the train in approaching the crossing, either by lessening the speed or by any other means calculated to avert a collision, and no such care was taken or used, then the jury were...