Hoffman v. Missouri Pacific Railway Co.

Hall, J. The horse got upon the defendant’s railroad track through no fault of defendant, and got upon the railroad track at a point where the defendant was not required to anticipate the presence of live stock. We understand it to be the settled law of this state that in such a case the railroad company’s liability is confined to a failure on the part of its servants to use ordinary care to avoid the injury after having discovered the peril in which the animal was. Wallace v. Railroad, 74 Mo. 594; Young v. Railroad, 79 Mo. 336; Sloop v. Railroad, 22 Mo. App. 593; Milburn v. Railroad, 21 Mo. App. 426; Welch v. Railroad, 20 Mo. App. 480. The instruction given by the court improperly extended the defendant’s liability to a failure on the part of defendant’s servants in charge of the train to avoid the injury after they “learned of the danger in which said colt was, or might have learned of its dangerous ■situation by the use of reasonable diligence.” Moreover, the defendant’s servants, after having ■discovered the dangerous situation of the horse, were not bound, at all hazards and in any event, to avoid an injury to the horse. They were only required to use reasonable care so to do. This the court should have stated in the instructions. The jury might have well found from the evidence that the defendant’s servants ■on the engine saw the horse, but we are unable to say that they did so find rather than that said servants ■could have seen the horse by the use of ordinary care. We cannot say, therefore, that the error in the instruction did no harm. The judgment is reversed and the cause remanded.. All concur.