Tate v. Wabash Ry. Co.

• Decision Date: 30 January 1911
• Citation: 134 S.W. 14,153 Mo. App. 533
• Parties: TATE v. WABASH RY. CO.
• Court: Missouri Court of Appeals

134 S.W. 14

153 Mo. A. 533

TATE v. WABASH RY. CO.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

Rehearing Denied February 13, 1911.

1. RAILROADS (§ 446) — INJURY TO STOCK AT CROSSINGS — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action against a railroad company for killing cattle at a highway crossing, plaintiff's evidence held sufficient to take the case to the jury.

2. RAILROADS (§ 447) — ACTION FOR KILLING STOCK — INSTRUCTIONS — GIVING OF SIGNALS.

In an action against a railroad company for killing stock at a highway crossing, a charge that if the company's servants neglected to sound the whistle, or to ring the bell, plaintiff could recover, was erroneous, as requiring both the sounding of the whistle and ringing of the bell, while, under the statute, the giving of either signal is sufficient.

3. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — INSTRUCTIONS.

The instruction was harmless where the undisputed evidence showed that neither signal was given.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Action by Ben Tate against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. W. Hinton, for appellant. Webster Gordon and N. T. Gentry, for respondent.

ELLISON, J.

Defendant's train struck and killed two of plaintiff's cows at a place where its road crosses a public highway, and he brought this action for damages. The judgment in the trial court was in his favor.

The following are the facts, substantially as stated by defendant: The plaintiff lived on a farm on the east side of and adjoining the railroad, about a mile from the village of Hallsville. At this place the railroad runs in a general northeast and southwest direction. There is a county road about a quarter of a mile to the west of, and nearly parallel with, it. Another public road, referred to in the evidence as a lane, runs from the first county road in a general easterly direction across the railroad to the plaintiff's farm. According to the witnesses, the cross-road runs east, then makes a "jog" south for about 75 steps, and then east about 45 or 50 steps to the crossing. In going east toward the crossing the view of the railroad to the north was somewhat obstructed by corn at the time of the accident, but from the jog south there was a clear view for at least a half mile northeast of the crossing. On the afternoon of the accident the plaintiff's son, a boy of 17, was bringing the cows home toward the crossing from a neighbor's pasture. After he turned south, and while he was in the "jog," he noticed a train up at the whistling post, coming south toward the crossing. He then got over the wire fence and attempted to get ahead of the cows, but did not succeed. The cows went onto the crossing immediately in front of the train, and were instantly struck and killed. The train was late and running at a high rate of speed, variously estimated at from 40 to 50 miles an hour. The engine was running backwards. A number of witnesses for the plaintiff testified that the bell was not rung, and that the whistle was first sounded after the train had...