Tate v. Wabash Ry. Co.
| Decision Date | 30 January 1911 |
| Citation | 134 S.W. 14,153 Mo.App. 533 |
| Parties | BEN TATE, Respondent, v. WABASH RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. N. D. Thurmond, Judge.
Judgment affirmed.
E. W Hinton for appellant.
(1) The failure to sound the whistle at the whistling post was wholly immaterial in this case, because the boy in charge of the cows actually saw the train as soon as he could have been warned by the statutory signal, and hence the court should have directed a verdict for defendant. Hutchinson v Railroad, 195 Mo. 546; Hutchinson v. Railroad, 161 Mo. 246; McManamee v. Railroad, 135 Mo. 440; McGee v. Railroad, 214 Mo. 533. (2) The plaintiff's son was guilty of contributory negligence as a matter of law in allowing the cattle to get so close to the track that he could not head them, before taking any precautions to observe the train. Nolan v. Railroad, 50 A. 348; Railroad v. Entsminger, 92 P. Rep. 1095; Railroad v. Wheeler, 101 P. 1001; Sanguinette v Railroad, 196 Mo. 466. (3) The circumstances were clearly sufficient to warrant a finding of contributory negligence as a matter of fact, and hence the plaintiff's instructions were erroneous in ignoring that defense which was properly pleaded, and in authorizing a verdict for plaintiff without reference to contributory negligence. Abbott v. Mining Co., 112 Mo.App. 550; Hanheide v. Transit Co., 104 Mo.App. 323; Laughlin v. Gerardi, 67 Mo.App. 372. (4) The plaintiff's instruction on the first count was erroneous in directing a verdict for plaintiff if either of the statutory signals was not given. Turner v. Railroad, 78 Mo. 578; Van Note v. Railroad, 70 Mo. 641; Terry v. Railroad, 89 Mo. 586.
Webster Gordon and N. T. Gentry for respondent.
(1) A failure to sound the whistle at the whistling post and the failure to sound the same at intervals until the crossing was passed, and the failure to ring the bell at all, were the acts of negligence charged in the first count of the petition, and the jury found that the same resulted in the killing of plaintiff's cows. The fact that plaintiff's son, in charge of said cows, saw the defendant's train, at or near the whistling post, is not sufficient to excuse the defendant for its failure to give the statutory signals. (2) The plaintiff's son was not guilty of contributory negligence as a matter of law. Our Missouri courts have never held that a farmer is guilty of contributory negligence in driving cattle along public highways, even when the highway crosses the railroad track. (3) No error was committed by the trial court in failing to give an instruction on the subject of contributory negligence. The trial court does not have to give instructions in a civil case for a party, unless asked to do so. If defendant had desired to have the jury instructed on that subject it was its plain duty to prepare an instruction and ask the court to give it. Having failed to offer any instruction on that subject at the trial, it has waived its right to have the law declare upon said subject. Mere non-direction is not misdirection, as our courts and text-writers have often said. Morgan v. Mulhill, 214 Mo. 462; Booker v. Railroad, 144 Mo.App. 292; 2 Thompson on Trials, sec. 2341 Williamson v. Transit Co., 202 Mo. 373; Marion v. Railroad, 124 Mo.App. 445. (4) Plaintiff's first instruction told the jury that it was the duty of defendant's servants, agents and employees in charge of its locomotive and cars to sound the steam whistle of said locomotive at a point at least eighty rods before reaching the crossing of the public road and to sound said whistle at intervals until said locomotive had crossed said public road or to ring the bell of said locomotive at a point at least eighty rods before reaching the crossing of the public road and to continue to ring the same until said locomotive had crossed the public road. This instruction follows the language of the Kansas City Court of Appeals in referring to our statute. Atterberry v. Railroad, 110 Mo.App. 615; Wasson v. McCook, 70 Mo.App. 397; Kirkpatrick v. Railroad, 71 Mo.App. 268.
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 seventy-five steps, and east about forty-five or fifty 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 miles northeast of the crossing.
On the afternoon of the accident the plaintiff's son, a boy of seventeen, 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...
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