47 Mo. App. 519 | Mo. Ct. App. | 1892
In this suit the plaintiff alleged that the defendant ran its train of cars over a public crossing without either ringing a bell or sounding a whistle, whereby a cow of the plaintiff of the value of $35 was run over and killed. The plaintiff had judgment, to reverse which the defendant appealed. The defendant challenges the judgment on the sole ground that the trial court erred in instructing the jury that: “If you shall believe from the evidence .that on or about the eighth day of August, 1889, in Central township, Barton county, Missouri, at the crossing of a traveled public road, the defendant’s engine and train of cars struck and killed a cow belonging to the plaintiff; and if you shall further believe from the evidence that a bell was not rung on said engine or train at a distance of at least eighty rods from the place where defendant’s railroad crossed the traveled public road where said cow was struck, and kept ringing until the engine attached to said train crossed said public road; and that a steam whistle on said engine was not sounded at least eighty rods from the place where said railroad crossed said
The defendant’s specific objection to this instruction is that it informed the jury that in approaching the public crossing it was the duty of the defendant to both ring the bell and sound the whistle. The statute manifestly does not enjoin the performance of any such dual duty, nor do we think the instruction so directed the jury. We must think the defendant’s insistances arise out of a misconception of the import of the language of the instruction. In Hafferty v. Railroad, 82 Mo. 90, where a like question arose on an instruction which told the jury that, “if they were satisfied by the evidence that the defendant neglected to cause the bell to be rung, and further neglected to cause the whistle to be sounded at eighty rods before reaching the crossing, etc., and that the killing of the plaintiff’s mule was caused by such negligence, they should find for the plaintiff,” Mr. Justice Sherwood, than whom there is no more accomplished verbalist on any judicial bench, in disposing of the question remarked, “that if the latter part of the instruction, which in effect has been stated by us, were in the alternative, telling the jury that if defendant failed to sound the whistle or failed to ring the bell, then it would be similar to the on,e given in the Thomas case in 78 Mo. 578.”
An instruction such as that would have based liability on the failure to give either signal, while the instruction in controversy only bases liability on the entire failure to ring the bell, and the entire failure to sound the whistle. In a word, the failure to ring the bell and the failure to sound the whistle must have concurred in order to have cast liability on defendant. Nothing short of such entire failure in both of these
The defendant further objects that the instruction already quoted was erroneous in employing the words, “ unless you are satisfied from the evidence,” etc. In the first part of the instruction are found also' the words, “if you shall believe from the evidence,” etc. The terms “believe” and “satisfied” are parallel and are used interchangeably. They imply no more than that, if the jury shall be convinced by the preponderance of the evidence of the truth of the basic facts constituting the plaintiff’s alleged cause of action, they should find for him. Whatever may have been decided in other jurisdictions, we think that in this state these terms have been used interchangeably by the trial courts in their instructions to juries, and have by such judicial usage acquired an equivalent meaning. And this usage has been repeatedly sanctioned by the revisory courts of this state. Proctor v. Loomis, 35 Mo. App. 486; Berry v. Wilson, 64 Mo. 164; Wise. v. Railroad, 85 Mo. 185; Lemon v. Chanslor, 68 Mo. 342.
The judgment must be affirmed.
