18 Mo. App. 391 | Mo. Ct. App. | 1885
Opinion by
We think this case, under the statement in evidence, is directly controlled by that of Wallace v. Ry. Co. (74 Mo. 594). “The injuries occurring, as they did, within the corporate limits of a city, it. devolved ..on plaintiff- in order that 'he might recover, to show that the actual negligence of the railroad company caused such injuries.” Ib.
We are aware that this statement in the case cited, .is criticised in Weymore v. Railroad Company (79 Mo. 247), but the criticism has only reference, to its application to cases where there is an allegation and proof as to the lack of fencing, although in a town, where the railway company may lawfully fence. In thé case before us there is nothing in the statement 'or proof as to. fencing. There is no proof in this case to show that the defendant’s'servants could have safely stopped the train after discovering the cow. The evidence tends to prove the contrary. The fact of the track being straight and the view up and down for a considerable distance being unobstructed, does not help plaintiff’s-case, for the cow was not'on the track until the instant she was struck. And, according to plaintiff’s witness, the cow could not have been seen by the engineer until he was within the distance of across the room from her, - on account of her
The judgment is reversed and the cause remanded.