65 Mo. 230 | Mo. | 1877
This was an action in the Common Pleas court of Cass county to recover damages against defendant for the killing of a mare belonging to him by a train of cars passing over defendant’s road. The petition alleges that defendant carelessly and negligently ran its cars, engines and locomotives over the said mare, and that the point on said road where it occurred was not at the crossing of any public road or highway, and was at a point where the road ran through uninclosed prairie lands, and was not fenced. The facts as disclosed by the evidence, and not controverted, are that the mare was killed on defendant’s road, about 40 rods from a crossing of a public highway which the train was approaching. That at that point the road ran through uninclosed prairie land and ■was not fenced. The court permitted plaintiff to prove that the whistle was not blown nor the bell rung on the train, and against defendant’s objection admitted evidence in regard to the speed of the train. The court, at the instance of plaintiff, declared the law to be as follows: “ Krst, that the defendant, its servants and agents in the control of its train, .were bound to use reasonable care in the management of its train to avoid doing injury to stock on its road, and if the court, sitting as a jury, should believe from all the evidence and circumstances proved in evidence, that the defendant, its servants and agents, could by the use of reasonable care and diligence have avoided killing plaintiff’s mare, it ought to find a verdict for plaintiff; second, although the court may find from the evidence
We shall not attempt to consider all the errors presented by this record and discussed in the appellant’s brief. The action was evidently based on the 43rd Sect., Art. 2 of the corporation act, and all that plaintiff' had to do to make out his case, was to prove that the mare got on the track, at a place on the road where it ran through uninclosed prairie land, and not at a public crossing, and that the sides of the road there were not fenced. Evidence of carelessness in running the train was irrelevant and inadmissible, as was also the evidence to prove that the accident occurred within eighty rods of a public crossing, and that the whistle was not blown, or the bell rung. The suit was. under Sec. 43, Art. 2 of the corporation act, and yet the instructions, ignoring the cause of action alleged in the petition, presented the case, the first instruction as an action for negligently killing the mare, and the second as an action under Sec. 38, Art. 2 of the corporation act. The •evidence and instructions should have been confined to the
Reversed.