Welsch v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 451
• Parties: WELSCH v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 451

WELSCH

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

Supreme Court of Missouri.

October Term, 1880.

Appeal from Marion Circuit Court.--HON. JOHN T. REDD, Judge.

REVERSED.

Geo. W. Easley for appellant.

Anderson & Boulware for respondent.

NORTON, J.

This is a suit for damages to plaintiff's horses and wagon, alleged to have been sustained at a crossing of a public highway in Marion county, by reason of defendant's negligence. The negligence averred was: 1. In not having a flagman or watchman at the crossing; 2. In not sounding the whistle or ringing the bell as required by statute; 3. That the servants and agents of defendant in charge of said train, so carelessly and negligently propelled the same, and made such great noise and shrieks by blowing the steam whistle attached to the locomotive, that the horses were frightened and ran away, etc. The answer was a general denial. On the trial plaintiff obtained judgment for $350, from which defendant has appealed.

The evidence tended to show that where the Palmyra and Lagrange road crossed the railroad, near the highway bridge across North river, the highway is cut out of the side of the rock bluff, gradually descending from the top of the hill, which is twenty-five or thirty feet high, till about twenty feet from the railroad, where it reaches the level of the railroad and crosses it at grade, that this road cut out of the side of the rock bluff, was “very rugged and uneven,” and wagons going along there make a great deal of noise; that from the top of the hill, nor down to the level of the railroad, in fifteen or twenty feet of the track, a train could not be seen; that plaintiff, about half past ten o'clock in the day, knowing that a passenger train was due at that hour, stopped, looked and listened for a train, but neither seeing one nor hearing the customary signals of an approaching train, drove his wagon and team forward and discovered a train about fifty yards from him as his horses stepped on the crossing; that plaintiff got across the track, and his horses becoming frightened by the sharp sounding of the whistle ran off and fell over the bluff of the river, killing themselves and destroying the wagon and harness; that from the location of the road, the intervention of the bluff and the noise made by the wagon, it was difficult to hear either bell or whistle. The evidence was conflicting as to whether either the bell was rung or whistle sounded. The evidence also tended to show that the defendant had kept a watchman or flagman at the said crossing up to within about eighteen months before the injury complained of occurred, and that plaintiff knew that for that length of time there had been no watchman at the crossing. Upon this state of facts the court gave, over defendant's objection, the following instruction:

If the jury find from the evidence that the public highway running north from the city of Palmyra, from a point some two or three hundred yards before it reaches the point where it is crossed by the railroad, to within a few feet of the south end of the bridge across North river, is constructed by cutting into the side of the bluff, leaving the bed of the highway uneven and rocky, and if the jury further find that persons traveling on said highway, going north toward said crossing and bridge, in wagons or other vehicles, by reason of the noise made by such vehicle, and the intervention of the bluff between the point on said...