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

• Decision Date: 31 October 1883
• Citation: 79 Mo. 336
• Court: Missouri Supreme Court
• Parties: YOUNG v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

79 Mo. 336

YOUNG

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

Supreme Court of Missouri.

October Term, 1883.

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

REVERSED.

Geo. W. Easley for appellant.

Thos. L. Anderson for respondent.

PHILIPS, C.

This is an action for damages for killing the respondent's horse in the city of Palmyra, Missouri, through the alleged negligence of defendant's servants and employes in running and managing one of its freight trains.

The evidence on plaintiff's behalf tended to prove that the town of Palmyra is an incorporated city; that plaintiff's horse was grazing beside the track of the railroad, about eighteen or twenty feet distant; that the engineer could have easily seen the horse when approaching with his train from three to five hundred feet off; that just beyond where the horse was grazing--some ninety feet--there was a public road crossing over the railroad track. On approaching this crossing the engineer gave the usual road crossing signal. On approaching, the horse ran down the ditch alongside the track, which ditch was three or five feet deep. The horse ran toward the road crossing which was his point of egress from the ditch. There was no apparent effort on the part of the engineer to check the speed of the train, which was running from ten to fourteen miles an hour, until the horse reached the crossing and attempted to cross the track where he was killed.

Defendant's evidence, through its engineer, was to the effect that the engineer had frequently seen this horse grazing at or about this point, and that he never knew him before to run along aside the track at the approach of the train and attempt to cross the track; that he first saw the horse on the occasion of the injury about 300 feet off, as he approached with a freight train; that the horse remained grazing until he ran within thirty feet of him, when he ran as described; that he instantly gave the signal for applying the brakes, which was done; and that he reversed the engine and used every effort to avert the disaster; that owing to the character of grade at the point, he was under necessity to run at the rate of speed stated; that he made no effort to check the train when he first saw the horse because he apprehended no danger until his movement to cross the track.

On behalf of plaintiff the court declared the law to be: “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 horse, it ought to find a verdict for plaintiff.”

On its own motion the court gave the following instructions:

1. It was the duty of the employes of the defendant having the management of the locomotive and train to use a reasonable degree of care and skill in the management of said locomotive and train with the purpose of preventing injury to plaintiff's horse, and if from all the facts and circumstances proved, the jury find that the defendant's employes failed to use a reasonable degree of care and skill in the management of said locomotive and train, such failure was negligence, and if the jury further find that the injury to plaintiff's horse was caused by such negligence on the part of defendant's employes in the management of the locomotive and train, the verdict should be for plaintiff, assessing the damages at a sum equal to the actual value of the horse.

2. Unless the jury find from the facts and circumstances proved, that the employes of the defendant having the management of the locomotive and train did fail to use a reasonable degree of care and skill in the management of said locomotive and train, for the purpose of avoiding injury to plaintiff's horse, the verdict should be for defendant.

The defendant asked a great many instructions, among which are the following, which the court refused:

5. If the jury believe from the evidence that the horse was quietly grazing beside the track and fifteen or twenty feet from it when the engineer first saw it, yet the engineer was not bound to stop his train until the animal was in danger of being struck, and if the jury find from the evidence that the engineer did all he could to stop his train and avoid the injury after knowing of the danger of the animal, they will render their verdict for defendant.

6. If the jury believe from the evidence that when the engineer first saw the horse it was quietly grazing beside the track, and some fifteen or twenty feet from it, then this was not sufficient to require the engineer to stop his train or take any precaution to avoid an unexpected danger, and if the jury find that the engineer did all he could to stop his train and avoid striking the animal after knowing of its danger, they should find for defendant.

The jury returned a verdict in favor of plaintiff for...