30 Mo. App. 248 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action was commenced before a justice of the peace to recover damages for killing the plaintiff’s cow. A trial in the circuit court resulted in a verdict and judgment for the plaintiff for fifty dollars, the value of the cow as shown by uncontroverted evidence. In the statement originally filed there was a statutory count, and also a common-law count grounded on negligence. The
Against repeated objections of the defendant, the court allowed witnesses for the plaintiff to testify that, on the train of the defendant which struck, and killed the plaintiff’s cow, neither the bell was-rung nor the whistle sounded within eighty yards of the crossing, as required by section 806, Revised. Statutes. There was no error in this ruling. Our Supreme Court has held in several cases that, where an animal is killed by a railway train at a highway crossing' and the owner brings an action at common law without referring to the statute, the statutory negligence may be given in evidence. Goodwin v. Railroad, 75 Mo. 73; Schneider v. Railroad, 75 Mo. 296; Robertson v. Railroad, 84 Mo. 121.
The evidence adduced at the trial tended to show that the plaintiff’s cow was killed by a freight train of the defendant at a highway crossing in the western part, of the town of Shelbina; that the train approached the’ crossing on a down grade, running, according to some of
*253 “ 2. Negligence is tlie lack of suck care and caution as men of common sense and prudence generally exercise under like circumstances, and if the collision of defendant’s engine with plaintiff’s cow could have been avoided by the exercise of reasonable care and prudence-on the part of defendant’s employes, the verdict should, be for plaintiff.”
Outside of the possible failure to give the statutory signals, we see no evidence that the employes of the-defendant were guilty of a lack of such care and caution as men of common sense and prudence generally exercise-under like circumstances, or that the collision of the engine with the plaintiff’s cow could have been avoided by the exercise of reasonable care and prudence on the part of defendant’s employes. On the contrary, the defendant was clearly entitled on this phase of the case to the following instruction, which it requested and which the court refused:
“3. There is no evidence in this case tending to show any neglect or failure of duty of defendant’s-servants in running said train after the cow mentioned came upon the crossing mentioned, nor after they became aware of her peril.”
We must add that this case, upon the question-whether there was general evidence of negligence outside of the statute, is clearly distinguished from White v. Railroad, 20 Mo. App. 564, where we held that there-was such evidence to take the case to the jury, though we regarded the case as a very close one. There the evidence tended to show that the engineer might, by keeping the proper lookout, have seen the cow approaching the crossing at a distance of two or three hundred yards ; but there was no such evidence in this case. There also no effort was made to stop the train, while-here such an effort was made.
We must hold that the giving of the former of the-above instructions by the court was error, and that the attention of the jury should have been confined to the-
Upon this second branch of the case, we are unable to concur in the views put forward by the learned counsel for the defendant. It was the rule under section 806, Revised Statutes, prior to the amendment of 1881, that a railroad company could not be held liable for the killing of an animal at a highway crossing upon the mere ground that its employes had failed to observe the statutory signals, unless there was evidence from which a jury might reasonably infer that the failure to .observe such signals was the proximate cause of the accident, and that, in the absence of such evidence, it was the duty of the judge to direct a verdict for the defendant. Holman v. Railroad, 62 Mo. 562; Stoneman v. Railroad, 58 Mo. 503; Craycroft v. Railroad, 18 Mo. App. 487. But in several cases our Supreme Court qualified this doctrine by holding that where the animal was in such a situation that it might ham escaped if the statutory signals had been given, the question whether the failure to give the statutory signals was the proximate cause of the accident was a question for the jury. Goodwin v. Railroad, 75 Mo. 75; Alexander v. Railroad, 76 Mo. 497; Turner v. Railroad, 78 Mo. 578. In the leading case announcing this doctrine (Goodwin v. Railroad, 75 Mo. 73, 76) Henry, J., speaking for the court, said: “ Where nothing is shown, in an action based upon the section above referred to (Rev. Stat., sec. 806), except the omission of the duty enjoined and the injury, it has been held by this court that it is the duty of the trial court to declare, as a matter of law, that the plaintiff cannot recover.” Stoneman v. Railroad, 58 Mo. 503; Holman v. Railroad, 62 Mo. 562.
In the case at bar, however, other facts did appear, which justified its submission to the jury. The cow was not fastened, or in any manner confined, or unable to escape, if the signals had been given. The engineer ion the locomotive saw it step upon the track. These
Before any of the three cases last named had been decided, but long after the causes of action therein arose, the legislature passed an act amendatory of section 806, Revised Statutes (Acts of 1881, p. 79), so as to make the last sentence read as follows: “ And said corporation shall also be liable for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung, or such whistle sounded, as
These observations show that, in the case before us, the trial court committed no error in giving the following instruction:
“3. If the jury believe, from the evidence, that plaintiff’s cow was killed in the public traveled highway, where the track of defendant’s railroad crosses such highway in Salt River township, in Shelby county, Missouri, on or about the — day of August, 1885, by the locomotive and cars run by defendant; and that neither*257 the whistle on said locomotive was sounded eighty rods from such crossing, and was continued to be sounded at intervals until said locomotive passed said crossing ; nor was the bell attached to said engine rung eighty rods from said crossing, and continued to be rung until the engine had passed said crossing, then they will find for plaintiff; provided, they further find that the failure to sound said whistle or ring said bell caused the injury complained of.”
Applying the principles of the cases above cited, it must be held that, even without the aid of the statute of 1881, the question was for the jury ; since, if the statutory signals had been given the animal might have been frightened away so as not to have come upon the track, as she was not fastened nor her movements in any way impeded. But under the act of 1881, it was for the jury alone to say whether the prima-faeie case of negligence created by the statute was overcome or rebutted by the evidenciary facts before them. Instructions in substance not dissimilar to the above were approved in Alexander v. Railroad, 76 Mo. 496.
We, therefore, see no error in this second branch of the case; but, for the error of submitting the case to the jury upon the general theory of negligence and not confining them to the negligence denounced by the statute, the judgment of the circuit court is reversed and the cause remanded.