Midgett v. St. Louis & San Francisco Railroad

BLAND, P. J. (after stating the facts). — 1. The instruction does not, as contended by defendants, authorize the jury to find for plaintiff, if they were satisfied from the evidence that the bell was not rung and the whistle sounded at least eighty rods before the train reached the crossing. The instruction told the jury it was defendants’ duty to do one or the other, and if they neglected to do either to find for plaintiff. 2. The court refused the following instructions asked by defendants: “1. "The court instructs you that even though you believe from the evidence that the engineer did not sound the whistle or ring the bell of the locomotive for a distance of eighty rods from the crossing, and continue the same at intervals until the train had passed over the crossing; yet, if you further believe from the evidence that this failure did not cause the injury, you will find the issues for the defendants. “2. You are further instructed that even though you may believe from the evidence that the engineer failed to sound the whistle or ring the bell before the animal got. upon the track, yet, if you may further believe from the evidence that after the animal came upon the track he used such care as a reasonable man would have used in the same situation to prevent the injury, you will find for the defendants.” Proof of the failure of defendants’ servants to ring the bell or sound the whistle made out a prima facie case for plaintiff, but the defendants had a right to rebut this prima facie case by showing that the failure to ring the bell of sound the whistle was not cause of the injury. [544] [R. S. 1899, sec. 1102; Persinger v. Railroad, 82 Mo. 196; Crumpley v. Railway, 111 Mo. 152, 19 S. W. 820; Lloyd v. Railway, 128 Mo. 595, 29 S. W. 153, 31 S. W. 110; Atterbury v. Railroad, 110 Mo. App. 608, 85 S. W. 114.]_ The evidence shows that the cow did not stop on the crossing, but walked upon it and was struck and killed. The statute (sec. 1102, supra) raised the presumption that if the whistle had been sounded or the bell rung, the noise would have frightened the cow from the crossing and she would have escaped injury. As said by Philips, C., in Kendrick v. Railroad, 81 Mo. 1. c. 532, “The Legislature has imposed this duty on the railroad companies, presumably because the known tendency of such noise is to frighten stock away, and the statute should stand for a reason.” In the same case and on the same page, it is said: “It is true, there was evidence pro and con, as to whether the sounding of the whistle or the ringing of the bell would likely have attracted the attention of the hog and caused it to have moved from the track. But this evidence was incompetent and immaterial.” In Kelly v. Railroad, 88 Mo. 534, it was ruled: “In an action against a railroad for injuries to plaintiff’s team by one of its trains by reason of the failure to ring the bell of the locomotive within eighty rods of the crossing, evidence to show connection between such failure to ring the bell and the injury to the team is irrelevant and unnecessary.” Opinion evidence, as to whether unfettered stock would or would not have been frightened by the noise of the whistle or bell, is inadmissible in an action brought for injuries to stock caused by a violation of this statute. But if there are unusual conditions or. surroundings for which the railroad company is not responsible, or if the stock injured is under excitement not caused by -the company and which might have caused said stock to be oblivious to, or unheedful of the noise of the whistle or bell, such facts, we think, may be shown for the purpose of re [545] butting plaintiff’s prima facie case arising from a skewing that the whistle was not sounded or the bell rung. Plaintiff’s cow was a milch cow and at the time she was killed (five o’clock p. m.) was on her way home to her calf, and hence was less likely to be turned from her path by the sounding of the whistle or the ringing of the bell than would stock under ordinary circumstances. On this evidence we think defendants were entitled to their refused instruction numbered 1, as it tended in a measure to rebut plaintiff’s prima facie case. For the reason defendants’ instruction numbered 2 ignores the negligence of defendants in failing to ring the bell or sound the whistle, it was properly refused. For error in refusing instruction numbered 1, the judgment is reversed and the cause remanded.