Downing v. Missouri, Kansas & Texas Railway Co., 70 Mo. App. 657

Downing v. Missouri, Kansas & Texas Railway Co.

70 Mo. App. 657 | Mo. Ct. App. | 1897

Smith, P. J.

This is an action to recover damages for the negligent killing of stock.

Statement. The petition was in three counts, the first of which alleged that a cow, the property of the plaintiff, was struck and killed by a locomotive and a . * tram of cars of tne defendant on a pub-lie crossing through the negligence of the defendant’s servants in failing to give either of the signals required by section 2608, Eevised Statutes. The second alleged that two horses of the plaintiff were on the track of the pefendant’s railroad where the same crosses one of the *660public streets of an incorporated village, and that defendant’s servants negligently and carelessly ran a train of cars over plaintiff’s horses, killing one and injuring the other, etc. The other alleged that two horses of the plaintiff (the same described in the second count) were'struck, one killed and the other injured, by a locomotive and train of cars of the defendant at a place where the defendant’s railroad crosses a public street in an incorporated village by and through the negligence of the servants of defendant engaged in operating the said train of cars in failing to give either of the signals required in such cases by the statutory provision previously referred to. There was a trial and verdict for the plaintiff on first and second counts, and judgment accordingly, from which defendant has appealed.

ticetcOTfliSJ evidence: credinessls°fwit" I. The defendant complains that the evidence was insufficient to carry the case to the jury on either count. An examination of the evidence, as presented by the record, has not imx , pressed us with the conviction that this-complaint is well founded. There is much conflict in the testimony. It was for the jury to determine the credibility of the witnesses and the weight to be given to their testimony. The jury would have been justified under the evidence in finding either way. If the plaintiff’s witnesses were to be believed, which was for the jury to determine, then there was direct and circumstantial evidence before the jury to warrant the verdict. It would be an unauthorized invasion of the province of the jury for us to undertake to pass upon the credibility of the witnesses or the weight that should be given to their testimony with the view of determining whether the verdict is or is not for the right party. We can not say the account given by the plaintiff’s witnesses of the manner in which the several injuries *661complained of happened is, on its face, so improbable as to entitle it to no consideration. We do not think there was any error in the action of the court in letting the case go to the jury under the evidence.

railroads: idiinafslor crosf-' mg: instruction. II. The defendant objects that the plaintiff’s first instruction was erroneous in expression. It told the jury that the statute required the defendant to blow the whistle at intervals or ring continually, beginning at a distance of eighty rods from the place where its railroad track crosses any public road, and that a failure to sound one of these signals is prima facie evidence of negligence, and that if the jury believe from the evidence that the plaintiff’s cow was killed by defendant’s engine at a public crossing by reason of such negligence of the agents of defendant, to find for plaintiff. The defendant insists that this instruction in effect told the jury that it was the duty of the defendant to both sound the whistle and ring the bell as in Turner v. Railway, 78 Mo. 578, but we do not think such to be its meaning. It, in words too plain to be misunderstood, declares that a negation by the defendant of one of these statutory duties toas prima facie evidence of negligence. Or, in other words, if the defendant sounded the whistle but did not ring the bell that this was prima facie evidence of negligence. The statute does not require both the blowing of the whistle and the ringing of the bell. Either is sufficient. To make a railroad company liable under the statute, section 2608, it must be shown by the party claiming damages that it neither rang the bell nor sounded the whistle, and that by reason .of such neglect damages resulted. Van Note v. R’y, 70 Mo. 641. The instruction in question told the jury that if the defendant failed to give one, not both, of these signals a prima fade case was made out for plaintiff. The jury might have concluded that the defend*662ant rang the bell but did not sound the whistle or vice versa and that under the instruction the defendant was guilty of negligence. The instruction is therefore misleading and should not have been given. The other instructions seem to be well enough in enunciation.

trial practicefinding11 on0on?: bar-III. The defendant further objects that the judgment did not determine the whole case. As already in dicated, ^he injury complained of in the second count was the same as that in the third. The difference was only in the kind of negligence which occasioned the injury. There was but one injury or damage. The verdict was for the plaintiff on the first and second counts. But there was no finding whatever on the third. The defendant contends that this omission was fatal to the judgment, which was in conformity to the verdict. This objection is sufficiently answered by what is said in Hoyle v. Farquharson, 80 Mo. 377, which was to the effect that when there is a petition containing several counts and all of them are submitted to the jury, as here, and there is a verdict for plaintiff on one of said counts, specifying which, there is 'an implied finding against plaintiff on the remaining counts, and the judgment will be a bar to any subsequent suit on the demand contained in the' counts not named in the verdict. Besides this, it appears that the attention of the trial court was not called to the omission of the jury to find on the third count. Marquis v. Clark, 64 Mo. 601.

It results that on account of the error in respect to the giving of the plaintiff’s first instruction the judgment must be reversed and the cause remanded.

All concur.