Welch v. Hannibal & St. Joseph Railway Co.

Hall, J. The only question in this case, which we deem it necessary to determine, is the question as to the correctness of the instruction given by the court for the plaintiff, set out in the above statement. That instruction was erroneous. It was too broad. It improperly extended the liability of the defendant. The defendant’s liability should have been confined, under the facts of this case, to a failure on the part of its servants to use ordinary care to avoid the injury after hav [481] ing discovered the peril in which the plaintiff’s cow was. Young v. R. R. Co., 79 Mo. 341; Wallace, v. R. R. Co., 74 Mo. 597. . The law was properly declared in the instruction number three, given for the defendant. The error in the plaintiff’s instruction was not, however, cured thereby. The inconsistency between the two instructions was itself an error. Henschen et al. v. O’ Bannon, 56 Mo. 289; Goetz v. R. R. Co., 50 Mo. 474; State v. Nauert, 2 Mo. App. 295. Judgment reversed, and cause remanded. All concur.