Mudd v. Missouri, Kansas & Texas Railway Co.

GOODE, J. (after stating the facts). — The court advised the jury if they found from the evidence the vehicle called by the witnesses an “inspection car” was not a locomotive engine, then it was not subject to the statutory regulation requiring a whistle to be sounded or a bell rung when approaching a road or street crossing in the city of Monroe. The petition counted on a municipal regulation and not on the statute, as the instruction implied. However, we have no doubt the car or engine which frightened the team was a locomotive engine within the meaning both of the city ordinance and of the statute requiring a bell to be rung or a whistle sounded by a [394] locomotive when within eighty rods of the intersection of a railroad and a road or street (R. S. 1899, sec. 1102). The statute and the ordinance were alike intended for the protection of persons and property crossing or about to cross railway tracks. [Evans v. Railroad, 62 Mo. 49.] Every reason for exacting a warning by whistle or bell when an ordinary locomotive draws near a crossing, applied to the inspection car, which was as dangerous to travellers as a common locomotive. Besides, it was, by strict definition, a locomotive engine, being a vehicle moved by a steam engine and designed to run over the track of a railroad from place to place. [Jarvis v. Railroad, 65 N. E. (Ind.) 608; O’Fallon v. Railroad, 171 Mass. 249; Stranahan v. Railroad, 84 N. Y. 308; Webster’s Int. Dict. (1910 Ed), p. 1267, word “Locomotive.”] It is true the name “locomotive engine” is usually understood to signify a steam engine used to draw a car or train of cars along a railroad track (Murphy v. Wilson, 52 L. J. Q. B. 524) and the engine in question drew neither, but being in the middle of the car, propelled it along the track. This unlikeness to an ordinary locomotive should not be held to constitute it an engine of another sort than a locomotive engine within the meaning of the municipal ordinance or the -statute. Plainly such an engine could do the very mischief at a crossing which both the statute and the ordinance were enacted to prevent. In Henson v. Railroad, 110 Mo. App. 595, 85 S. W. 597, this court held a vehicle called a “speeder,” which was like a handcar, and operated by a small gasoline engine underneath the floor of the car, was not a locomotive engine within the intention of section 1106 of the Revised Statutes of 1899; saying the word “locomotive” was used in the section in connection with the word “train” and meant a steam locomotive in common use by railroad companies for the purpose of moving trains and cars. That contrivance was altogether different from the vehicle in question, which, as said, was a car intended to carry passengers and to be [395] propelled over the railroad tracks by a steam engine. Moreover it was equipped with a bell and steam whistle of the ordinary size, to be rung or blown as those on common locomotives are. We hold the court committed error prejudicial to plaintiff in leaving it to the jury to say whether or not the inspection car was a locomotive engine. Counsel for defendant insists plaintiff ought not to be heard to complain of this instruction, because, in the first instruction granted at his request, he made an issue for the jury as to the character of the engine in the last paragraph. Defendant’s counsel reasons that, by the words, “if it did run one” (i. e., a locomotive engine), etc., plaintiff left it to the jury to say whether the inspection car was a locomotive engine, because, as the fact that the defendant ran the inspection car in the city of Monroe at the time alleged, was not disputed, plaintiff’s counsel could only have meant by the words “if it did run one,” to submit the question of whether the in spection car, which was conceded to have been run, was a locomotive engine in the sense of the statute and the ordinance. If it could fairly be said plaintiff invited the submission of this question, his complaint would not be heeded; but we cannot say this is the effect of the first instruction. We grant it was unnecessary to ask the jury to say whether the inspection car was operated over defendant’s track in Monroe City at the time of the accident. But the sense of the words “if it did run one,” when read in connection with the remainder of the instruction, would be strained by holding they made the character of the car a question for the jury. Those words were meant to reiterate the hypothetical fact the jury were required to find in the preceding portion of the instruction, namely, that “defendant’s agents, servants and employees ran a locomotive engine over its track at said point,” etc., meaning not to ask a finding of whether the inspection car was a locomotive engine, but to ask what was, perhaps, an unnecessary finding: — ■ [396] whether defendant ran it at the time and place in question. It is contended all the substantial evidence on the issue tended to prove the bell on the inspection car was rung continuously as it approached the crossing, but this position is untenable. The driver of the team testified unequivocally the bell was not rung nor the whistle sounded until the car was on the crossing, and he did not see the car because he was behind the shanty and it gave him no warning. That testimony was of a positive instead of a negative character, and was for the jury to weigh in comparison with contradictory testimony. Plaintiff voluntarily, and not by compulsion of the court, elected to stand on the first count of the petition. We say nothing about whether the supposed alteration in the disposition of the horses in consequence of their fright is a proper element of damages, as the point had not been briefed and there were items of damages consisting of money paid for repairs to the wagon and harness. The judgment is reversed and the cause remanded. All concur.