Wasson v. McCook

Bond, J. This is a suit against the receivers of a railroad company alleged to have been operating the corporation in their charge on the second of September, 1895, in Van Burén township, Newton county, Missouri, and to have negligently killed plaintiff’s cow, of the value of $50. The action was brought before a justice, where a judgment by default was taken, and defendant appealed to the circuit court, where plaintiff filed an amended statement identical with the original, except that the value of the cow was alleged to be $75. On the trial in the circuit court plaintiff recovered judgment for $52.50, from which this appeal was taken. The evidence tended to prove that the cow was killed by being struck by an engine within the switch limits of the town of Eitchey, a village of about two hundred inhabitants; that at the time of the accident the cow was crossing the track where the main street of the town intersects it; that the train was going at a speed of thirty or thirty-five miles an hour; that it whistled at the post, and again before the cow was struck. Plaintiff in his cross-examination describes the occurrence as follows: “ Q. Now where was this cow? A. Before the train approached ? [396] “Q. Yes, sir. A. I did not see the cow until just before the train struck her. “Q. What was she doing when you first saw her? A. She was going up onto the track. “Q. Now, how far away were you? A. I was about one hundred and fifty feet. “Q. How far was the engine from the cow at the time that you saw her go up onto the track ? A. About forty or fifty feet. “Q. Then the first time that the cow got onto the track the engine was only forty feet from her? At that time, and then it was that they whistled? A. I guess so. Q. They whistled as soon as the cow got onto the track, did they not? A. Yes, sir.” Plaintiff also testified that the engineer and fireman did nothing to stop the train, but threw the throttle open and swung themselves out on each side of the car. There was evidence tending to show that the cow was worth the amount recovered. Rwiiedat|tbiick mSnSiawne|bgence' The law applicable to the cause of action and facts shown in this record is simple and well settled. The action is one for common law negligence. It is not brought under the statutes (R. S. 1889, secs. 2611-4428) giving double or single damages for injuries to stock. It is therefore necessary, in order to recover, for plaintiff to show that the actual negligence of the defendant caused the killing of the cow. Wallace v. R. R., 74 Mo. loc. cit. 597. No presumption of negligence can arise in this case from the mere fact of the killing, nor can it be said, as a matter of law, that the rate of speed of the train was negligent, since there was no proof that it exceeded any limit prescribed by adequate authority. Mahner v. R. R., 64 Mo. 267. As the place of the collision was a public crossing defendant [397] was only required, in addition to its statutory duties as to the ringing of the bell or sounding a whistle (R. 8. 1889, see. 2608), “to keep a reasonable lookout with the view of discovering any animals that may so stray upon its track in time to prevent running over and killing or injuring them.” Hill v. R. R., 49 Mo. App. loc. cit. 534; affirmed in 121 Mo. 477. If this was done and no animal appeared in a position of peril at the crossing until the train had reached forty or fifty feet of that point, the conclusion must follow that defendants are not guilty of negligence, unless by due care they could have stopped the train and prevented the accident after the cow was so discovered, or failed to comply with the statute requiring the bell to ring or the whistle to be sounded. The train in question was a through one, and there is no appliance known to science or in use by which it could have been cheeked within this distance. Boyd v. R. R., 105 Mo. 371. As to the failure to ring the bell or sound the whistle the law is, that such omission when accompanied by the killing of stock at a crossing makes a prima facie case of liability. Keim v. R. R., 90 Mo. 314; Persinger v. R. R., 82 Mo. 196. It was competent, however, for defendants to show that their failure to comply with the statute in this respect did not cause the injury under the facts attending the accident, and if the jury so found, their verdict should have been for defendants. Rcare°:rinstluclI0n' Instruction number 1 given for plaintiff, imposed the duty of “great care, diligence, and watchfulness” for stock when approaching the crossing. This was erroneous. Defendants were only required to exercise reasonable or ordinary care. [398] Evidence: instruction. [397] Instruction number 5 for the plaintiff told the jury they must find for him if the cow was killed by “gross [398] and wanton negligence.” It is sufficient to say that there is no evidence in this record warranting such direction. It was therefore erroneous. Instruction. Instruction number 12 asked by defendant which should read, that if the engineer was unable, by reasonable diligence, to see the animal until the train, going at thirty miles an hour, was within forty feet of her, and that he could not then stop the engine before the collision, should have been given, with the proviso that the collision was not caused by defendants’ failure to ring the bell or sound the whistle, as prescribed in the statute. The judgment will.be reversed and the cause remanded. Judge Bland concurs, Judge Biggs dissents.