72 Mo. App. 243 | Mo. Ct. App. | 1897
There was also an ordinance of said town prohibiting the running of trains within the corporate limits at a rate of speed exceeding six miles per hour. The evidence tended to show that if defendant’s servants in charge of the engine had been on the lookout for cattle they could have discovered the cow in time to have averted striking her. The court gave for plaintiff the following instructions:
“If the jury believe from the evidence that the servants and agents of defendants in charge of ■ its engine and train, by the exercise of ordinary care could have discovered the danger to plaintiff’s cow in time to have avoided any injury to her by the exercise of ordinary care, and that they negligently and carelessly failed to avoid such injury, and in consequence thereof ■they struck and mortally wounded said cow with said engine, then the jury will find for the plaintiff in the sum of the reasonable value of said cow, less the amount plaintiff may have received for her hide; the whole not to exceed the sum of forty dollars.”
But it will be noticed that the place where the servants must keep a lookout with a view of discovering animals is a place where animals are liable to stray upon the track. If the place is such that it is not reasonable to anticipate that animals may be upon, or come upon the track, the railway company is only liable for negligent failure to avert the injury after its servants have actually discovered the danger. This is clearly shown to be the law in Hoffman v. R’y, 24 Mo. App. 546, and Jewett v. R’y, 38 Mo. App. 48, and authorities cited. The Hill case, supra, but confirms this view as will be seen by the foregoing quotation. See, also, Hill case, 66 Mo. App. 184. It was a mistake to include the Hoffman case just cited, as reason for certifying the Hill case to the supreme court, since under the facts in the Hoffman case it declared the law as then and now understood.
The judgment will be reversed and the cause remanded.