Welch v. Hannibal & St. J. R. Co.

Decision Date23 May 1887
Citation26 Mo.App. 358
PartiesWILLIAM R. WELCH, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
CourtKansas Court of Appeals

APPEAL from Caldwell Circuit Court, HON. B. M. DILLEY, Special Judge.

Affirmed.

The case is stated in the opinion.

THOS E. TURNEY, STRONG & MOSMAN, for the appellant.

I. The court erred in overruling defendant's demurrer to the evidence. The suit is for negligence in running the train in town and switch limits, and the plaintiff, to recover, must prove actual negligence, and that the negligence proved occasioned the injury. Robertson v. Railroad, 64 Mo. 412, and cases cited; Holman v. Railroad, 62 Mo. 562. If the train was running at the rate of fifteen miles an hour, this was not negligence entitling plaintiff to a verdict. Young v. Railroad, 79 Mo. 336. Even where there is an ordinance limiting the rate of speed, and the same is pleaded, it must be shown that the rate of speed occasioned the injury, which cannot be pretended in this case. Bowman v. Railroad, 85 Mo. 533, 538, and cases cited. It was not negligence to fail to ring the bell or sound the whistle, at the place of the accident. Potter v. Railroad, 18 Mo.App. 694. But if the accident had occurred at a railroad crossing, there was no proof that the bell was not rung. Vannote v Railroad, 70 Mo. 641; Cathcart v. Railroad, 19 Mo.App. 113. The evidence is too indefinite to sustain the verdict. Milburn v. Railroad, 21 Mo.App. 426. And it is not aided by the evidence introduced by the defendant. Wallace v. Railroad, 74 Mo. 594; Young v. Railroad, 79 Mo. 336; Fitzgerald v. Railroad, 18 Mo.App. 391.

II. The court erred in rejecting the evidence offered by defendant that the stock law, approved March 27, 1883, had been adopted by Caldwell county at the time of the accident. If true, it was a complete defence to plaintiff's cause of action. Bowman v. Railroad, 85 Mo. 533.

III. The court erred in overruling defendant's motion for a new trial. Cases cited supra.

O. J. CHAPMAN, for the respondent.

I. The court committed no error in overruling the defendant's demurrer to the evidence. The plaintiff made out a good case of negligence, and offered an abundance of evidence from which the jury could infer negligence. No alarm was given until about the time the cow was struck, when she had gone on to the track, from fifty to one hundred and fifty yards ahead of the engine. No effort was made to slacken the speed of the train, and give the cow time to escape. No effort was made to stop the train. The supreme court has frequently determined that, where there is any evidence to establish plaintiff's case, the court cannot withdraw it from the jury. There was undoubted proof of defendant's negligence, and it was for the jury to say whether the injury was the result of such negligence. Haliday v. Jones, 59 Mo. 482; State v. Turner, 63 Mo. 436; Alexander v. Railroad, 63 Mo. 397.

II. Where there is any testimony to support a cause of action, it should be left to the determination of the jury. Walsh v. Morse, 80 Mo. 568. The engineer saw this cow coming on to the track when he whistled for the station, according to his own testimony. He then made no effort to alarm her, or stop his train, or even slacken its speed. It was his duty to do all in his power to avoid the accident, from the time he saw the cow on or near the track, or coming on the track. Kendig v. Railroad, 79 Mo. 207. The engineer ought to have reversed his engine when he first saw the cow. He does not show, or swear, that he did all in his power to prevent the accident.

III. This is a common law action for negligence, and the plaintiff has the right to prove any negligence of the company that contributed to produce the injury, and it is the province of the jury to pass on the case, and say whether the negligence was the cause of the injury. Braxton v. Railroad, 77 Mo. 455; Mapes v. Railroad, 76 Mo. 367; Robertson v. Railroad, 84 Mo. 119.

IV. The court will not interfere where the costs of a re-trial will amount to as much or more than the amount in controversy, unless it clearly appear that the jury have been misled to the prejudice of the appellant. This is what might be called " vexatious litigation" proper. Porter v. Harrison, 52 Mo. 524.

V. This case was here before this court on the very same evidence as now, except as to stock law, and all other questions, having been then passed on, are resjudicata. Adair County v. Owerly, 75 Mo. 282.

VI. The court below committed no error in rejecting the evidence offered by appellant as to the adoption of the stock law, in Caldwell county, at the time of the accident. There was no evidence to base any such evidence upon. Besides, there was no stock law in force at the time plaintiff's cow was killed. The accident occurred November 1, 1883. The question, as to the adoption of the stock law in Caldwell county, was submitted to the voters on the thirtieth day of October, 1883, being the day prior to the accident. By the terms of the law, providing for the adoption of the stock law, before it was properly in force after the vote on the question, the county clerk had to give notice of the result in a weekly newspaper published in the county, and by posting notices in each township in the county, etc. Sess. Acts, 1883, 26.

VII. The evidence shows this cow was not tied or fastened, but could have escaped if alarmed in time. It shows that no alarm was given and no effort made to avoid the accident, until the engine was right on the cow. There was no whistle given for " down brakes," nor engine reversed, nor any effort made to do so, or slacken the speed of the train. This was negligence, and, of course, caused the injury. If the cow had been alarmed in time she would have escaped. She would, no doubt, have escaped injury if the speed of the train had been slackened. Goodwin v. Railroad, 75 Mo. 73.

VIII. The court will not reverse, even if error is committed, where it is manifest that appellant has not been injured, and the verdict is absolutely correct and for the right party. Morris v. Railroad, 79 Mo. 367; Noble v. Blount, 77 Mo. 235.

TURNEY, STRONG & MOSSMAN, in reply, for the appellant.

I. The evidence is not the same now, as when this case was here before. Welch v. Railroad, 20 Mo.App. 477. The evidence admits of no inferences. The evidence, itself, which covers the only issue in the case, must fix the liability of the defendant. The suit is at common law, for an injury in town and switch limits, and there must be proof, not only of the injury, but of negligence causing the injury; and this negligence can not be presumed from the killing, but must be proved like any other fact. Judd v. Railroad, 23 Mo.App. 56; Gourley v. Railroad, 25 Mo.App. 144; Railroad v. Kenney, 41 Mo. 271. The negligence in this case, if there was any, was in failing to do what could be done to save the cow, after she started to go on the track. Kendig v. Railroad, 79 Mo. 207; Welch v. Railroad, 20 Mo.App. 477. We submit that such negligence is not established, even by taking such part of each witness' testimony as is most favorable to the plaintiff, and discarding all the rest. Wallace v. Railroad, 74 Mo. 594; Young v. Railroad, 79 Mo. 336; Lord v. Railroad, 82 Mo. 139; Milburn v. Railroad, 21 Mo.App. 426; Sloop v. Railroad, 22 Mo.App. 593; Flannery v. Railroad, 23 Mo.App. 120; Judd v. Railroad, 23 Mo.App. 56.

II. No notice was required to give effect to the stock law; it took effect from its passage (Laws of Mo. 1883, sect. 1, p. 27, and sect. 11, p. 28). By section 7 of this act, it was provided that its provisions were suspended until a majority of the voters, voting at an election held for the purpose, should decide to enforce the same in their county. In the previous enactments on this subject, notice of the adoption of the law was required, but not by this one. The law, by its terms, was suspended in Caldwell county until the close of the polls on the thirtieth of October. On the thirty-first it was unlawful for cattle to run at large in that county, and on the first of November the animal sued for was killed. " A statute is to operate from the very day it passes, if the law itself does not establish the time. * * * The rule is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time." 1 Kent's Commentaries [7 Ed.] p. 505, and cases cited; Rev. Stat., 1879, sect. 3149; Sess. Acts 1883, p. 28, sect. 11.

PHILIPS P. J.

This is an action for damages for the killing of plaintiff's cow, by defendant's locomotive. The action is at common law for single damages. The imputed negligence is the carelessness of defendant's servants in running and managing the train of cars. The accident occurred within the town of Breckenridge, Caldwell county.

Plaintiff recovered judgment heretofore in the circuit court, and on appeal, taken by the defendant, to this court, the judgment was reversed, on account of an error in the instruction given on behalf of plaintiff. (20 Mo.App. 477). On the re-trial the instruction given for plaintiff is in accord with the ruling of this court, and is unobjectionable. Plaintiff again recovered judgment, and defendant has appealed.

I. The first contention of defendant is, that there was not sufficient evidence to entitle plaintiff to the opinion of the jury. We have carefully examined the evidence, as presented by the appellant; and whatever may be the opinion of this court as to the weight of the evidence, we are satisfied there was ample evidence to warrant the trial court in submitting the question of negligence to the jury. They are the sole judges of the weight of evidence and the credibility...

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