98 Mo. App. 142 | Mo. Ct. App. | 1903
This case, briefly stated, is that the plaintiff was the owner of a threshing machine engine which, while on a certain farm crossing over defendant’s railway track, was negligently struck and demolished by one of its passing trains. The plaintiff had judgment and defendant appealed.
The defendant objects that the petition does not state a cause of action, in that it does not allege that the engineer, in charge of the locomotive pulling the train which collided with the plaintiff’s threshing machine engine, was warned in sufficient time or at a sufficient distance to stop the train and avoid the injury, or that he saw, or by the exercise of reasonable care could have seen, the threshing machine in time to stop the' train and avoid the injury. This objection is not well taken for two reasons, the first of which is that the petition embraces in its allegations the very matters which the defendant, strangely enough, claims are omitted therefrom; and the second is that even if the allegations were omitted, as claimed by defendant, in respect to the allegation of negligence it would still be sufficient since it is therein clearly and distinctly alleged that the collision which occasioned the injury was caused by the negligence of the engineer and other employees of defendant while engaged in managing and conducting the locomotive and train of ears drawn thereby. The general allegation of negligence, under the decisions of the appellate courts of this State, is all that is required in a case of this kind. Hilz v. Railroad, 101 Mo. 36; Hanlon v. Railroad, 104 Mo. l. c. 391; Hill v. Railroad, 49 Mo. App. 520; Hurley v. Railroad, 57 Mo. App. 675.
Nor was it error to give the plaintiff’s first instruction which told the jury that if the signals given by plaintiff to defendant were in sufficient time to have enabled it to stop the train so as to avoid the injury, to find for plaintiff. It was not, as the defendant contends, broader than the allegations of the petition. But
•The evidence was ample to warrant the giving of plaintiff’s instruction submitting the issue of - negligence. The defense of contributory negligence was fairly submitted by the defendant’s seventh instruction. It is full and explicit in expression as to that defense.
No error is seen in the instruction for plaintiff which told the jury that if it found for plaintiff and that his engine was injured by the collision and thereby rendered valueless as an engine, so that it could not by repair be made as good as it had béen before the injury, then to allow plaintiff as damages the reasonable cash value of the engine at the time and just before the injury, less the reasonable cash value after the injury, or, if it found the engine could be restored to as good condition by proper and necessary repair as it was before the injury, then to allow plaintiff the reasonable cash value of making the repair, together with the reasonable cash value of the use of such engine during the time it would necessarily and reasonably take to make such repairs, etc. Johnson v. Holyoke, 105 Mass. 80; Gillett v. Railway, 8 Allen 560. There was no departure from the theory of the petition.
No merit is discovered in any of the objections urged by defendant for the reversal of the judgment,, which must accordingly be affirmed.'
