Turner v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 578
• Parties: TURNER v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 578

TURNER

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Platte Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

Strong & Mosman for appellant.

R. P. C. Wilson for respondent.

HENRY, J.

This suit originated in a justice's court in Platte county, and is for damages for killing plaintiffs stock by a train of cars passing over defendant's road, in consequence, it is alleged, of a failure to ring the bell or sound the whistle, in violation of section 38, article 2, Wagner's Statutes, volume 1, page 310.

1.PRACTICE: amendment: justice's court.

On a motion in the circuit court to which the cause was appealed, to quash the return of the constable on the writ of summons, and dismiss the suit, the court allowed that officer to amend his return, and overruled the motion.The constable's original return was imperfect and defective, but might have been amended in the justice's court, and we think that when the circuit court became possessed of the cause it also could allow the amendment.The justice had jurisdiction of the cause, if the writ was in fact properly served upon defendant, whether the return of service made by the officer was defective or not.The service in this case was sufficient, and the return only was defective in not stating correctly the manner of service, and no error was committed by the circuit court in permitting the amendment.

2.RAILROADS: signals.

The evidence proved the killing of the stock by defendant's train of cars, but whether the bell was rung or the whistle was sounded as required by the statute, was not so clear from the evidence.The court, for plaintiff, gave to the jury the following instruction:

If the jury believe the horses and colt in question were injured and killed in the public road or highway where the defendant's track crosses it in Lee township, Platte county, Missouri, on or about the 6th day of July, 1879, by the locomotive and cars of the defendant, and that defendant failed to sound a whistle on said locomotive eighty rods from the crossing of said public highway and continue to sound the same at intervals until said highway was passed by the train, or failed to ring a bell within said eighty rods and continue ringing the same until the railroad train crossed said road or highway, they will find for the plaintiff; provided, they further believe that the failure as aforesaid to sound the whistle and ring the bell caused the injury complained of.

The instruction is manifestly erroneous.The statute does not require both the blowing of the whistle and ringing of the bell.Either is sufficient, and yet the instruction is predicated upon a supposed legal duty to do both.By it the jury were told that if defendant failed to blow the whistle, or failed to ring the bell, and if the injury to the stock was caused by such failure to sound the whistle and ring the bell, plaintiff was entitled to recover.The instruction should have been to the effect that if defendant neither sounded the whistle, nor rang the bell, etc., and if the injury was occasioned by such neglect, plaintiff was entitled to a verdict.Van Note v. Hannibal & St. Joseph R. R. Co.,70 Mo. 641.

3. ___: stock running at large: contributory negligence.

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