184 Mo. App. 463 | Mo. Ct. App. | 1914
Plaintiff brought suit before a justice of the peace for the negligent killing of a cow at a private railroad crossing on his farm in Linn county. A trial in the circuit court on appeal resulted, in a judgment for plaintiff and the defendant railroad company appealed.
The railroad, which runs north and south over plaintiff’s farm, was enclosed with lawful fences and was crossed by a private farm crossing maintained by defendant for the use and benefit of plaintiff. It is admitted that the crossing, fences, cattle guards and crossing gates were of lawful construction and in good repair. Plaintiff pastured cattle on the land lying west of the railroad and in the mornings and evenings drove them over the crossing to his land east of the road where he had a well and facilities for watering stock. On the evening in question he opened the crossing gates and the cattle at the west gate, being in need of water, crossed over voluntarily to the watering place on the east side. Plaintiff left both gates open and stood on guard until the cattle had slaked their thirst and were in condition to be returned to the pasture when he proceeded to the bam lot to drive them back. While thus proceeding he heard a train coming from the north and, looking up, saw one of his cows on the crossing. The inference is strong that this animal was not at the west gate when the gates were opened but was on her way to the well. The train was a heavy freight train and approached around a curve and through a cut and, according to the testimony of
Plaintiff admits that the stock signals were given but states facts tending to show that the cow was visible to the operators of the engine for a distance of over 1000 feet, and that no effort was made to stop or reduce speed. There is also evidence to the effect that the engineer failed to give the statutory signal for a public crossing some distance north of the cut. This evidence is contradicted by the engineer and fireman but for the purposes of the demurrer to the evidence, which we think should have been given, we shall consider the evidence in its aspect most favorable to the pleaded cause and shall assume that no signal was given for the public crossing, and that when the engine reached the point from which the first view of the private crossing was afforded, the engineer could have seen the cow on the track and avoided the injury by stopping the train. The gravaman of the action is negligence in the operation of the train. Negligence, as has often been said, is a breach of duty which one man owes to another and where there is no duty there can be no actionable negligence. [Coin v. Lounge Co., 222 Mo. 1. c. 507.]
The failure of the engineer tó whistle for the public crossing was no breach of duty towards plaintiff or his property at the private crossing on his land. The statute requiring such signals to be given is intended only for the protection of persons and property at public crossings and the failure to give such signal will not render the company liable for animals
There are circumstances in which an immediate effort to stop the train would be the only safe alternative. Thus in Young v. Railroad, 79 Mo. 336, a panic stricken horse ran towards the track on which a train was approaching. The Supreme Court held that “if, after discovering the horse in motion going toward the crossing, he (the engineer) could have reasonably and safely so far stopped the train as to have avoided the collision and neglected to do so, the defendant was clearly liable. ’ ’
In the late case of Martin v. Railroad, 175 Mo. App. 464, the Springfield Court of Appeals held, in substance, that it was the duty of the engineer seeing an animal on or near the track to take such steps to avoid an injury as the situation appeared to demand of a reasonably careful and prudent man in his position. In that case the engineer neither attempted to stop nor sounded the stock signal. The court said “the jury might rightly find that the engineer or fireman either saw or could with due care have seen the animal on the track or coming on it in time to have avoided
But these cases and others of like import we have examined fall far short of declaring that an engineer seeing a cow on or near, the track a. sufficient distance ahead for the train to be stopped in safety would not be justified in relying at all upon the efficacy of an alarm whistle but must proceed at once to stop the train if he would escape an imputation of actionable negligence. Ordinarily alarm signals are all the means required to clear the track of such animate obstructions and it is only in instances where it appears that such signal would be unavailing that reasonable care would demand a resort to other means. ■
There is nothing in the evidence from which it may be said that a reasonably careful and prudent person in the place of the engineer would have anticipated that the cow would prove refractory and would not leave the track as the shrieking engine bore down upon her. When the futility of the alarm became apparent the train was too close for a saving stop or check in speed to be made. There are no facts and circumstances in evidence that tend to accuse the engineer of conduct at variance with that to be expected of an ordinarily prudent person in his situation. The burden is on plaintiff to show negligence and we must hold that he has failed entirely to discharge that burden. The demurrer to the evidence should have been sustained.
The judgment is reversed.