Weltch v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 08 May 1915
• Docket Number: No. 1444.,1444.
• Citation: 176 S.W. 261,190 Mo. App. 213
• Parties: WELTCH v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

176 S.W. 261

190 Mo. App. 213

WELTCH v. ST. LOUIS, I. M. & S. RY. CO.

No. 1444.

Springfield Court of Appeals. Missouri.

May 8, 1915.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Action by George Weltch against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Anthony & Davis, of Fredericktown, for appellant. Joseph W. Caldwell and Homer F. Williams, both of Marble Hill, for respondent.

STURGIS, J.

This is an action to recover damages under section 3140, R. S. 1909, for killing plaintiff's horse. The horse was killed by defendant's locomotive coming in collision with it at a public crossing. The allegation of negligence is that defendant failed to ring the bell or sound the whistle as the freight train in question approached such crossing. The truth of this allegation stands admitted on this appeal, and in fact defendant introduced no evidence to the contrary. The defendant's insistence is that plaintiff's evidence shows that such failure on defendant's part was not the cause of the collision, and therefore a demurrer to the evidence should have been sustained. For the same reason defendant says the court erred in giving instructions submitting the case to the jury on the theory that plaintiff could recover because of defendant's negligence in this respect.

The facts show that at the place of the injury the public road crosses the railroad track at right angles, with fences and cattle guards on either side. As the train approached this crossing, making the noise usual in going up a slight grade, the horse in question was quietly grazing on the commons a little outside of the railroad right of way and near the edge of the public road. The land was unfenced, except the right of way, and the horse was feeding near the corner of the railroad fence, where it turns towards the cattle guards, some 50 or 60 feet from the point on the crossing where it was struck and killed. The horse continued to graze quietly until the engine was 75 to 100 feet of the crossing, and then without apparent cause, except that it then first heard the train, suddenly started in a run at an angle somewhat away from the train, but towards and across the track. The train and horse met on the crossing, the horse having traveled one-half to two-thirds of the distance covered by the train. No alarm by bell or whistle was given at any time.

Defendant argues that, as the horse was outside the limits of the"right of way in a place of safety and not in the danger zone, as it might or might not have been frightened by ringing the bell or sounding the whistle, as it might or might not have run away from the track as well as towards it, and might have been scared into danger rather than out of it, it is therefore purely conjectural that the giving of such alarms as the train approached the crossing would have caused the animal to have acted different than it did. From this it is ingeniously argued, not exactly that plaintiff must adduce evidence to show that the failure to give the statutory signals caused the injury, but rather, and what amounts to the same thing, that the whole evidence must show that the striking of plaintiff's horse by the engine was caused by the negligent failure to give the statutory signals. We think, however, this is a misconception of the force and effect of our statute on this subject. The statute (section 3140, supra), after requiring one of the statutory signals to be given while the engine is traversing the 80 rods next before reaching a public road crossing and fixing a penalty for neglect in so doing, provides:

"And said corporation shall also be liable for all damages which any person may hereafter sustain at such crossing when such hell shall not be rung or such whistle sounded as required by this section: Provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury."

Under this statute a case of liability is made by proof of damage occurring at a crossing and a failure to give the required signals. The plaintiff is not required to prove, nor does the whole evidence in the case have to show, a causal or resultant connection between the failure to give the signals and the damage sued for. The burden is cast on defendant to show that such failure was not the cause of the injury. This is a matter of defense, and it is none the less a defense because here, as in many, if not all, defenses, if the evidence adduced by plaintiff establishes the defense, then plaintiff cannot recover. The ordinary cases of negligence where plaintiff is required to show that his injury results from the...