83 Mo. App. 129 | Mo. Ct. App. | 1900
The plaintiff claims that a horse belonging to him was struck and killed by an engine on defendant’s railroad. The petition contains two counts, one for double damages for the alleged failure of defendant to maintain a sufficient cattle-guard where the animal came upon the track, and the other is based on the alleged negligence of defendant’s servants in running the train, by reason of which it is claimed that the animal was killed.
There was a verdict for the defendant on the first count, and a finding by the jury in favor of plaintiff on the other count. Judgment was entered accordingly, and the defendant has appealed.
It is undisputed that the horse, when discovered by the engineer in charge of the locomotive, was on the railroad track, where it passed through a farm, and the evidence leaves but little doubt that it came upon the right of way over a cattle-guard at the crossing of a public highway. The jury by the verdict on the first count found that the cattle-guard was in good condition and properly constructed. The horse passed over the cattle-guard about eight o’clock at night and walked north along the track a distance of about seventy-five yards, when, upon discovering the approaching train and hearing the sound of the whistle, it turned and ran south and passed over the cattle-guard onto the highway, where the evidence tends to prove it was struck by the locomotive. The testimony of plaintiff also tended to prove that no effort was
3. “The court instructs the jury that if the jury find from the evidence in the cause that the plaintiff’s mare strayed or went upon the defendant’s right of way on or near a public crossing, and that the plaintiff’s mare so being on said right of way, the defendant could by the exercise of ordinary care have discovered said mare in time to have avoided by the exercise of ordinary care the killing of the same, then your verdict must be for the plaintiff on the third count, and you will assess the plaintiff’s damages at the reasonable market value of the said animal at the time of the killing.”
In this instruction the jury were told (in effect) that if the engineer in charge of the locomotive could, by the exercise of ordinary care, have discovered the horse in time to have avoided the injury, then the defendant was liable. Under the facts we think this was an erroneous direction. When and where and under what circumstances persons operating trains are bound to keep a lookout for animals on the track of the railroad, was thoroughly considered by this court in Hill v. Railroad, 49 Mo. App. 520. Our opir’on being in conflict with previous decisions of the Kansas City Court of Appeals (Hoffman v. Railroad, 24 Mo. App. 546, and Welch v. Railroad, 20 Mo. App. 477), the cause was certified to the supreme court, where the opinion of this court was in all
It is suggested, however, by counsel for respondent, that the instruction (if erroneous) was not prejudicial to appellant, for the reason that the evidence showed that the engineer did see the horse in time to have stopped the train so as to avoid the accident. The evidence is that the engineer did not discover the animal until the train was within fifty yards of it. This placed the train about one hundred and twenty-five yards from the cattle-guard. There was no attempt to show that the train under the circumstances could have been stopped within that distance. If there had been any such proof, it might have been met with counter-proof, to the effect that it would have endangered the lives of persons on the train or of property thereon, to have attempted to stop it or check its speed, and that all things considered it was but the exercise of ordinary care or prudence that no such attempt was made. It is plain that these questions of fact have not been tried, and as they bear directly on the liability of defendant, the judgment will have to be reversed.
The defendant is the owner of the railroad in question. There is some evidence that the Wabash Railroad Company runs a train over the road, and that it'killed the plaintiff’s horse. In view of a retrial, we deem it proper to say that the presumption is that the train in question belonged to the defendant.
For the error pointed out the judgment will be reversed and the cause remanded.