Mayes v. St. Louis, Keokuk & Northwestern Railroad

Biggs, J. This case originated before a justice of the peace in Calumet township in Pike county. It appears from the record that the plaintiff sued the defendant for negligently killing his horse and demolishing a delivery wagon, at á public crossing in the city of Clarksville. The plaintiff recovered before the justice and also in the appellate court. At the close of the trial in the latter court the defendant demurred to plaintiff’s evidence. The demurrer was overruled and the defendant excepted. The defendant introduced no evidence. The finding and judgment were for the plaintiff, and the defendant has brought the case here by appeal. v?udY5iinrotice. The judgment in this case will have to be reversed for failure to prove that the horse sued for was killed in the township where the suit was brought. The plaintiff introduced evidence tending to prove that his horse was killed and his delivery wagon demolished by being negligently run over by an engine operated on the defendant’s railroad, and that the accident occurred at a public crossing in the city of Clarksville. He failed to show, either directly or inferentially, that the city of Clarksville was in Calumet township where the suit was brought. This was essential. Section 6126, R; S. 1889; Porter v. Railroad, 66 Mo. App. 623, and cases cited. Proof that the accident happened within the corporate limits of the city of Clarksville is not sufficient. The courts can not take judicial notice of township lines. Blackenstoe v. Railroad, 86 Mo. 492. Cnegu|eMeTjury quest on. Eor the information of the court on a retrial it is proper to indicate our opinion on the other ground of nonsuit. The contention is that under the circumstances it was the duty of the driver of the horse to stop before attempting to make crossing,- and that as he admitted he [143] did not stop, the court should have held him guilty of contributory negligence as a matter of law. The law is well settled that in approaching a railroad crossing a traveler upon the highway must look and listen for the cars. This quantum of care is prescribed as a matter of law. Beach on Neg. [2 Ed.], section 180. But whether he should do more in a given case, — that is, stop the vehicle in which he is. riding, or take other precautions, is a question of fact for the jury, and not of law for the court. We understand this to be the purport of the decisions in this state. Weller v. Railroad, 120 Mo. loc. cit. 648. For the reason stated the judgment of the lower court will be reversed and the cause remanded. All the judges concur.