19 Mo. App. 312 | Mo. Ct. App. | 1885
This case originated before a justice of the peace where plaintiff had judgment and defendant appealed. In the circuit court, the plaintiff, to maintain the issues on his part, introduced evidence tending to prove that the bell was not rung, nor the whistle sounded as required by law, on the train mentioned in his statement^ as it approached the crossing and ran over the steer in controversy. That the steer was killed on defendant’s railroad on the crossing of a public highway, in Gomer township, Caldwell county, Missouri, by a train on defendant’s railroad; that the steer was worth thirty-five dollars ; that the steer was on the crossing with about forty or fifty others, and that none of the others were injured. The evidence further showed that the steer was about four years old, a strong, healthy animal, with good ears and eyes, and free from all defects.
The evidence further showed that the train was a passenger train behind time and running at a higher rate of speed than usual. It was proved that plaintiff
This was all the evidence offered. The plaintiff prayed the court, sitting as a jury, to declare the law to be as follows :
“ 1. The court, sitting as a jury, declares the law to be that the court is to determine, from all the circumstances connected with the killing of plaintiff ’ s steer, whether said steer was killed at the time and place alleged, in consequence of the defendant’s failure to ring its bell or blow its whistle on the engine.”
“2. That it is the duty of the defendant, when approaching a crossing of a public road, to ring their bell or sound the whistle on their engine for at least eighty rods before they reach such crossing continuously, and if the court finds the defendants did not perform their duty in this case, and that in consequence of such failure to perform their duty, the steer was killed, the court will find for plaintiff for the value of his steer.”
Which declarations or instructions were given as •asked.
The defendant prayed the court to declare the law to be as follows:
.“Under the statement and evidence, the plaintiff cannot recover, and the finding must be for the defendant.”
Which declaration of law the court refused to give.
The court, sitting as a jury, found for the plaintiff.
This case, or one between the same parties, involving the same questions with one in addition, was before the supreme court and is found in 76 Mo. 494. The sufficiency of the proof to entitle plaintiff to recover is there decided, with the exception that plaintiff omitted to prove his ownership of the steer. For failure to make this proof, and for this reason only, the case was reversed and remanded. On trial again the proof "of ownership is made and the case with that addition is submitted with the same instructions as before, and as
Affirmed.
