McCormick v. Kansas City

Gill, J. — One of the trains of the defendant, at a public road crossing, ran over and killed three colts belonging'to the plaintiff; and for the damage thus occasioned, the plaintiff instituted this suit, alleging that the cause of such killing was the failure of defendant’s servants to ring the bell or sound the whistle eighty rods from said crossing as required by section 2608, Revised Statutes, 1889. On a trial by jury in the circuit court plaintiff had a verdict’ and judgment for $150, and defendant appealed. [112] I. The main objections urged by defendant’s counsel, in effect, go to the sufficiency of the evidence to warrant a verdict for the plaintiff — in other words, that the court below ought to have peremptorily instructed the jury that the plaintiff could not recover. In the first place it is claimed that there was no proof, worthy of consideration, that the bell of the engine was not rung, nor the whistle sounded, and that, in face of the positive statements of the engineer and fireman that the bell was rung, the jury was not justified in finding the contrary. We cannot agree with the learned counsel as to this contention.. Although the testimony of the several parties who were several hundred feet away (but who saw the train passing, and testified that they heard no bell nor whistle) may be considered of such a negative character as to be entitled to little, if any, weight, yet the testimony of the boy who was present at the crossing, and who testified unequivocally that no bell was rung nor whistle sounded, makes such a showing for the plaintiff’s case that we must abide the finding of the jury, and conclude, therefore, that there was a failure to ring the bell or sound the whistle. In this regard, the plaintiff’s case is made much stronger than was that of the plaintiff in the Summerville case, 29 Mo. App. 48, or the Cathcart case, 19 Mo. App. 113. In this connection, too, we recall the contention of defendant’s counsel at the oral argument, to the effect that, before the testimony of any witness can be considered of any importance in an issue of this kind, it must appear not only that the witness was' present, but that he was giving special heed to what was going on — that he was giving his attention direct at the time as to whether or not the alarm signals were given. "We think counsel expresses his position too strongly. If the boy was present at the crossing, was conscious, and in the exercise of his ordinary senses, and would swear [113] that lie heard no such signals, then as he was in a position to hear if such signals had been given, the triers of the fact would be entirely justified in the conclusion that no such sounds were made, since if they had then such witness would have heard them. From the position and surroundings of this witness there was a reasonable presumption that he would have heard these signals if they had been given, and in such a case as that the evidence is entitled to much probative force; and so was the ruling of this court in the Cathcart case, 19 Mo. App. 118. Again, it, is said, the demurrer to the evidence ought to have been sustained, because, even admitting that the statutory signals were not given as the. train approached the crossing, yet that such' failure was not the cause of the injury. This, too, was a question for the jury; they found the issue against the defendant, on evidence fully sustaining their conclusion, and we cannot, therefore, disturb the judgment on that account. The plaintiff’s testimony was to the effect that,, as the train approached the crossing, these colts were' just on the west side of the track where they had stopped to pick grass. The engine came up under cover of a fence which concealed the crossing, and gave no alarm until it got to the very “edge of the road;" and it was then by escaping steam the colts were suddenly alarmed, and in their confusion, and trying to escape' the engine then bearing down on them, they sprang the wrong way, and, instead of escaping danger, jumped immediately in front of the engine, and were killed. Now, the statute required that at least eighty rods before getting to this crossing the engine’s bell or whistle should have been rung or sounded, and continuously, too, until the crossing was reached. The jury then might have well concluded that if one of these [114] statutory alarms Lad been given eighty rods away, and at intervals repeated till the crossing was reached, then the colts would have escaped, and that, therefore, the failure to give one of such signals caused the plaintiff’s loss. The only remaining point worthy to be noticed relates to the objection to plaintiff’s first instruction, and, which it is claimed, imposed on the railroad company the duty, not only to ring the bell, or sound the whistle before getting to road crossing, but that said instruction required the company to do both — ring the bell midi sound the whistle. If the instruction could be so construed, then clearly it would be faulty, as it has been repeatedly decided by this court that the railroads are only required by this statute to give one of these alarms. However, we have lately had before us the construction of an instruction in almost the exact language of that now in question, and we have held that the instruction was not subject to the criticism here offered. Brady v. Railroad, 47 Mo. App. 519. We then dismiss this point by a simple reference to that case. The judgment of the circuit court is affirmed. All concur.