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

• Decision Date: 31 October 1881
• Citation: 74 Mo. 594
• Court: Missouri Supreme Court
• Parties: WALLACE v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

74 Mo. 594

WALLACE

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

Supreme Court of Missouri.

October Term, 1881.

Appeal from Butler Circuit Court. -- HON. R. P. OWEN, Judge.

REVERSED.

Action to recover single damages for killing and wounding plaintiff's colts. The evidence tended to show that the colts were struck by a freight train of defendant's cars, and one of them killed and the other wounded; that the train was running about twelve miles an hour; that the colts were running in front of the train and were dashing from one side of the track to the other; that no noise was made to scare them; that the train could have checked up in 100 yards, and that the colts could have been seen by the engineer 300 yards. It was admitted that this occurred within the corporate limits of the city of Poplar Bluff, near the defendant's coal-shed and depot. A demurrer to the evidence having been overruled, the defendant excepted and offered evidence tending to show that a freight train such as plaintiff's witnesses stated the one injuring his animals to have been, and running at the rate stated by them, could not have been stopped in time to prevent such injury. The court instructed the jury as follows: If the jury believe from all the facts and circumstances proved in evidence, that the defendant, its servants and agents, could by the use of reasonable care and diligence, have avoided injuring plaintiff's colts, they ought to find for the plaintiff and assess the damages, etc.

Smith & Krauthoff with W. R. Donaldson for appellant.

As the injuries which constitute the basis of this action, were occasioned within the limits of an incorporated city, plaintiff can only recover upon proof that they were the result of actual negligence on the part of the railroad company. Lloyd v. Railroad Co., 49 Mo. 199; Swearingen v. Railroad Co., 64 Mo. 73; Robertson v. Railroad Co., 64 Mo. 412; Edwards v. Railroad Co., 66 Mo. 567. The simple fact that the company killed the animals upon its track is no evidence of negligence. Wier v. Railroad Co., 48 Mo. 558; Calvert v. Railroad Co., 34 Mo. 242; 1 Redf. on Railways, (5 Ed.) pp. 485, 486, 501. There being no obligation upon the defendant to fence its road at the point where these animals were injured, imposed by the statute, it devolved upon plaintiff to show that they were properly and lawfully upon defendant's track, or that the injuries resulted from defendant's negligence, after the discovery by it of the presence of such animals on its track. None of the cases go further than to require that a company shall, after discovering such animals, use ordinary care to prevent injury to them. All the owner has a right to ask of such company is, that it will not run its locomotives and trains in an unreasonable and dangerous manner. Shearm. & Redf. on Neg., § 454; 1 Redf. on Railways, 485; Pierce on Railroads, 403, 406. The act of an owner in permitting his stock to go at large in a city or in the neighborhood of a railroad track, with no one to take charge of it, is such contributory negligence as to defeat a recovery by him for injuries occasioned on a railroad track. 1 Redf. on Railways, pp. 490, 496; Pierce on Railroads, pp. 425, 428, 429; Bowman v. Railroad Co., 37 Barb., 516; Railroad Co. v. Skinner, 19 Pa. St., 298; Railroad Co. v. Lawrence, 13 Ohio St., 66. Negligence is not proved by evidence that the train causing the injuries was running at an unreasonable rate of speed, or without proper care in other respects. 1 Redf. on Railways, p. 490, and cases cited in note 14; Shearm. & Redf. on Neg., §§ 477, 478; Pierce on Railroads, p. 406; Railroad Co. v. Lawrence, 13 Ohio St., 70.

W. J. Davison and Belch & Silver for respondents.

There was evidence tending to show negligence on the part of the defendant (1) in not ringing the bell or making a noise to frighten the colts from the track; (2) in running at too great a speed; (3) in view of the testimony that there was a plain view of the track three hundred yards above the culvert, the jury could draw the inference that the agents of the company did see the colts, and willfully neglected to check the train in time and to avoid injury to the colts, or (4) that the agents neglected to keep a proper outlook on the track, by means of which the colts could have been seen and the injury averted. Speed of trains should be diminished in running through villages and towns. Isabel v. Railroad Co., 60 Mo. 475; Meyer v. Railroad Co., 2 Neb., 319; Lafayette, etc., v. Adams, 26 Ind. 77. In those states where, by the common law, cattle may run at large, as is the case in this State, a railroad is liable for injuries to them while straying upon their tracks, if caused by want of ordinary care on the part of the company. Shearman & Redf., Negligence, (3 Ed.) § 475; Gorman v. Railroad Co., 26 Mo., 441.

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