Van Note v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 641
• Parties: VAN NOTE v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

70 Mo. 641

VAN NOTE

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Geo. W. Easley for appellant.

W. W. Chapel for respondent.

NORTON, J.

This is an action to recover damages for the alleged negligence of defendant in killing plaintiff's cow.Upon trial of the cause in the Caldwell circuit court judgment was rendered for plaintiff, from which defendant has appealed to this court.The evidence offered on the trial tended to prove that the cow was killed at the crossing of a public highway by one of defendant's locomotives, and that as the train approached said crossing the whistle was not sounded until the train approached within from four to six rods of said crossing.There was no evidence offered as to whether the bell was rung or not, nor is there any evidence tending to show that it was not rung.At the close of the evidence defendant offered a demurrer to the same and asked the court to instruct the jury that plaintiff on the evidence could not recover.The instruction was refused, and for this action of the courtdefendant asks a reversal of the judgment.It is provided in section 38, Wag.Stat., 310, that a bell shall be placed on each locomotive, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road, and be kept ringing until it shall have crossed...