Klein v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts). I. Instruction No. 2, given for plaintiff is erroneous for the reason it assumes the dog was on the track sometime before he was run over. That he was sitting on the track, is contradicted by the defendant’s witness, a police officer, who testified that the dog plunged under the car in front of the hind trucks; and the motorman testified that he did not see the dog at all. The instruction wholly ignores this evidence. It is also erroneous in that it does not state the proper measure of plaintiff’s damages, which is the actual value of the dog. Plaintiff’s evidence shows that he prized the dog very highly and took pleasure in its company and was proud of the smart things it would do. In view of this evidence, the jury might (under the instruction) very well have taken into consideration, in estimating the damages resulting to- plaintiff, his loss of the dog’s company and the deprivation of the amusement and pleasure the dog afforded, as well [697] as the dog’s pecuniary value. We think the instruction is also erroneous for the reason it declares that it was the duty of the motorman to keep a watch for dogs on the track. We are unwilling to give our assent to this doctrine. In this State, a steam railroad company,' in running its cars at places where its tracks are not fenced and where cattle are liable to stray upon its track, is under the duty to keep a reasonable lookout for such animals and to use reasonable care to avoid injuring them. (Hill v. Railway, 49 Mo. App. 520, affirmed in 121 Mo. 477, 26 S. W. 576) but dogs, while declared to be personal property by statute, and are, in a sense, domestic animals (Wilcox v. State, 101 Ga. 563; Hurley v. State, 30 Texas App. 333) are, in their nature and habits, not at all like cattle running on the range. Dogs, when at large are always on the watch for their own safety. They are quick in motion, active and swift, and m alert that they ordinarily avoid contact with running trains and cars, hence, there is no reason to apprehend that a dog, seen at some distance, on a railroad track in front of a car would remain on it and be run over, and unless there is something about the dog’s actions and movements, or his inaction, to indicate to the motorman that he is either unable to get off the track or oblivious to the approach of the car, the motorman is under no> duty to stop the car to avoid injuring him. On the other hand, if the motorman has good reason to believe that the dog will not or cannot, for any reason, get off the track in time to avoid being run over, he is under the duty to use ordinary care to frighten the dog off, or check or stop the car to avoid hurting him. Defendant’s refused instruction is in accord with these views and should have been given. 2. We do not think that because “Sport” wore a collar, showing that his master had paid a license tax on his head, that the dog thereby was entitled to the freedom of the city. His collar conferred upon him no greater privileges than are enjoyed by other dogs not thus decorated, except to exempt him from the raids of the [698] dog-catcber, and tbe instruction, that plaintiff’s dog was licensed to roam at will upon the streets, alleys and vacant lots of the city, was misleading, if not erroneous. The judgment is reversed and the cause remanded. All concur.