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

• Citation: 74 Mo. 594
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 October 1881
• 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

[74 Mo. 595]

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

[74 Mo. 596]

such company is, that it...