Taylor v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 386
• Parties: TAYLOR v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 386

TAYLOR

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Francois Circuit Court.--HON. J. H. NICHOLSON, Judge.

AFFIRMED.

Thos. J. Portis for appellant.

The defendant's demurrer to the evidence should have been sustained. The facts of this case bring it within the rule announced in Braxton v. R. R., 77 Mo. 455.

No brief for respondent.

MARTIN, C.

This is a common law action against the defendant for negligently running over and killing a cow and a heifer belonging to plaintiff on the 13th of October, 1879, at a highway crossing. It was commenced before a justice of a peace, thence taken by appeal to the circuit court in which a verdict and judgment in favor of plaintiff were rendered in the sum of $30, from which the defendant appeals. At the close of the plaintiff's case the court overruled a demurrer to the evidence. The defendant submitted no evidence. The only question presented to us for determination in the abstract and brief of defendant is, whether the evidence was sufficient to justify the court in permitting the issues to go to the jury. To dispose of this question it will be necessary to rehearse the evidence bearing upon the liability of defendant.

William R. Cloud testified: “Know the plaintiff who lived on October 13, 1878, right where the railroad crosses Caledonia road; know the cattle described in the complaint; they were her's; they were knocked off the railroad on October 13, 1878; one was killed and the other died from the injuries; this was at night; I was awake at the time--between one and two o'clock; was giving medicine to my daughter and bound to be awake at that time; it was a passenger train that killed them; saw the cattle the morning before; next morning saw one of them on the left side of the road and the other on the right--not far off from the Caledonia road; the fence where the cattle-guard was broken was on the right side of the track; from every appearance, they were standing or lying close to the cattle-guard when they were struck; have lived near the road for twelve months; that night the train was faster than I ever heard before; it went like a dart; I never saw it.”

The defendant objected to the evidence concerning the speed of train because excessively fast running is not averred in the petition and no rate of speed, however great, constitutes negligence, which objections were overruled, and it excepted.

The plaintiff then asked: “Was a bell rung or whistle blown before approaching the crossing?” To which the defendant objected because this was not alleged as a ground of action and was immaterial, etc., which objections the court overruled, and the defendant excepted. The witness answered: “Could have heard the bell if it had been rung or heard the whistle if had blown; don't expect the train passed there at night while I lived there but what I heard it; this night I heard no bell or whistle. The cow was worth $20 and the heifer $10; I don't know the usual rate of trains; I have an idea of the speed of the night express; it was running faster that night than I ever heard it; the cow was knocked off between thirty and fifty feet from the cattle-guard. There were two or three places where she struck the ties leaving hair on them. She was left some five or six feet from the track when thrown off the track. The other was knocked about one-half as far as the cow. She didn't stop on the way. It was a light night. Heard the cattle come up about one o'clock in the night. This occurred about two o'clock. I heard the train at Loughboro. When the train came to the bridge it seemed to be coming very fast, and when it crossed the bridge I knew it was faster than usual. This was a public road leading from Farmington to Caledonia.”

Cross-examined: “My house was on the side of the railroad on this side between 30 and...