Milburn v. Hannibal & St. Joseph Railway Co.

Philips, P. J. — The important question for determination is, whether the court erred in admitting the evidence touching the presence of blue grass and water on or near the defendant’s track, and in giving the instruction referring to this fact. It is quite manifest that the negligence imputed to defendant, as the cause of the injury, was the negligent and careless running of the train by defendant’s servants. This was the sole issue, and the evidence, of course, should have been limited to this inquiry. Under this issue, it was competent for plaintiff to have introduced ■evidence of any fact tending to show this negligence; such as that the bell was not rung, or the whistle sounded .after the cow was' discovered on the track, nor other effort made to avoid the collision, or that the train was running at a careless and reckless rate of speed at such time and place. But no negligence was imputable to defendant, under this complaint, for permitting grass and water at or near its track. There was no necessary or [431] reasonable connection between this fact and the allegation of carelessness and negligence in running the train. It was competent, perhaps, for plaintiff to show the simple fact that cattle were in the habit of congregating at that point, provided the evidence went further and showed that this engineer knew of such fact; as the proof would bear upon the question of negligence in running the train at too great a rate of speed, if there was any competent proof of such speed. The only evidence •on the part of the plaintiff as to the rate of speed was, that “the train was running pretty fast.” The defendant’s •evidence was that it was running only at the rate of six •or eight miles an hour. The plaintiff’s proof was too indefinite and intangible to support a verdict predicated on such fact. It is sufficient to say that the law applicable to the facts of this case is covered by the ruling in Young v. H. & St. J. Ry. Co. (79 Mo. 336). On the facts of this ■case the right of recovery must turn upon the single question: whether or not the engineer was guilty of culpable negligence, after discovering the cow on the track. If he was not, the plaintiff has no cause of action. As the evidence to support this issue on. plaintiff’s part was meagre, it at once becomes apparent that the evidence respecting the grass and water attracting cattle near defendant’s road probably performed an important part in influencing the verdict of the jury. The direct reference to “ the presence of grass and water on or near •defendant’s right of way,” mads in the first instruction, was well calculated to convey to the mind of the jury the impression that defendant had been somewhat remiss in its duty in permitting this grass and water to so remain to entice cattle hither. It may have swung the verdict in plaintiff’s favor. It should not have been given. II. The second instruction is faulty in predicating negligence on the part of the engineer on the fact, if he saw or might have seen, by diligence, the cow near the [432] track. This warranted the jury in inferring negligence from the fact that it was the duty of the engineer to stop his train, or to slacken its speed, or sound the alarm, merely because he saw, or might have seen, the cow grazing near the track. This is not the law. Young v. Ry. Co., supra. Trains could not make the necessary headway, and form the necessary connections, if they had to slacken the speed whenever they saw cattle grazing near the road; while the sounding of the whistle or bell might alarm the beasts, and likely have the effect of sending them in the very path of danger. Peoria Ry. Co. v. Champ, 75 Ill. 578. The other judges concurring, the judgment is reversed and the cause remanded.