73 Mo. App. 643 | Mo. Ct. App. | 1898
This suit was begun before a justice of the peace on the following complaint:
“Plaintiff states that defendant is a corporation organized under the laws of Missouri, and is now engaged in operating a railroad through Ohio and St. John townships in Mississippi county, Missouri.
“That heretofore, to wit, on or about the 8th day of August, 1896, in St. John township, Mississippi county, Missouri, and in an adjoining township to Tywappity township, in which the suit is . brought, defendant, by means of his engines and cars operated by its agents and employees, carelessly and negligently ran said engine and cars against and killed one horse of the value of one hundred dollars of the property of the plaintiff, thereby killing said mare and damaging plaintiff in the sum of one hundred dollars, and that at the place where said mare came upon the road and was killed was at the Edwards crossing, and that defendant’s agents and employees, operating its said cars negligently ran its train at a greater rate of speed, and negligently failed to sound its whistle or sound its bell, and that in consequence thereof plaintiff’s mare
An appeal was taken from a judgment in the justice’s court to the circuit court, where on atrial denovo before the court without a jury, plaintiff recovered a judgment for $80, from which the defendant duly appealed to this court.
The evidence is all one way; that the plaintiff’s mare was struck and killed by defendant’s locomotive at Edwards crossing mentioned in the complaint, which was a public crossing. There was no evidence that the animal was run upon and killed by the actual negligence of the defendant’s employees. The negligence substantially charged, and the only negligence plaintiff attempted to prove, was a failure on the part cf the engineer or fireman having in charge the engine, to ring the bell or sound the whistle on approaching Edwards crossing. The recovery therefore was had upon section 2608, Revised Statutes of 1889. The engineer in charge of the locomotive and his fireman both testified that the bell was rung and the whistle was sounded as required by the statute, and one of plaintiff’s witnesses testified that he heard two short sounds of the whistle. On the other hand, plaintiff and sis of his witnesses, all of whom placed themselves in a position where they could and probably would have heard the whistle if sounded and the bell if rung, say that neither was done.
There was evidence both ways. It was conflicting, and this court is not authorized in such circumstances to disturb the verdict of the triers of the fact, whether such verdict was rendered by the jury or by the trial judge, sitting as a jury. Rennick v. Walton, 7 Mo. 292; Glasgow v. Moore, 9 Mo. 843; Paddleford v. Dunn, 14 Mo. 517; O'Connell v. R’y, 106 Mo. 482; Henry v. R’y,