Harlan v. Wabash, St. Louis & Pacific Ry. Co.

Opinion by Hall, J. 1. The charter of Kirksville is a private act, but it was pleaded by its title and date of passage. Being so pleaded, the court had to take judicial notice of its provisions. It was not necessary, therefore, for the plaintiff to introduce it in evidence. Section 3549 of Revised Statutes; State ex rel. v. Odle et al., 42 Mo. 212 ; Apitz v. R. R. Co., 17 Mo. App. 419. 2. It was not negligence on the part of defendant to leave the car, loaded with hay in the afternoon, on the side track during the following night. The evidence on this point shows the loading of the hay in the afternoon and the leaving of the loaded car on the side track during the following night. This did not constitute negligence. Schooling v. The St. Louis, Kansas City and Northern Railway Company, 75 Mo. 519. 3. The only negligence, shown by the evidence to have been committed by the defendant in running its train, was in running said train within the limits of Kirksville at a rate of speed greater than five miles per hour. But whether such illegal and negligent speed was the cause of the cow being killed, there was absolutely no evidence. There was no evidence from which it could have been inferred that said illegal speed was the cause [487] of the cow’s death. As to how the cow was killed there was no evidence. The circumstances under which the-cow was killed were not in proof. No one seems to have seen the cow killed. As to this point, this case is within the rule laid down by the supreme court ih the cases of Holman v. R. R. Co. (62 Mo. 562), and Stoneman v. R. R. Co. (58 Mo. 503). There is nothing in this case to bring it within the rule established in the cases of Goodwin v. R. R. Co. (75 Mo. 75;) Alexander v. R. R. Co. (76 Mo. 497), and Turner v. R. R. Co. (79 Mo. 580), and followed by this court in the case of Apitz v. R. R. Co., supra. There was no evidence of any other negligence on the part of defendant. For these reasons, the circuit court should, as asked by defendant, have instructed the jury to find for defendant. The judgment of the circuit court is reversed. Judge Philips concurs. Judge Ellison' does not sit, having been of counsel for defendant.