18 Mo. App. 483 | Mo. Ct. App. | 1885
Opinion by
1. The charter of Kirksville is a private act, but it was pleaded by its title and date of passage. Being so pleaded, the court had to take judicial notice of its provisions. It was not necessary, therefore, for the plaintiff to introduce it in evidence. Section 3549 of Revised Statutes; State ex rel. v. Odle et al., 42 Mo. 212 ; Apitz v. R. R. Co., 17 Mo. App. 419.
2. It was not negligence on the part of defendant to leave the car, loaded with hay in the afternoon, on the side track during the following night. The evidence on this point shows the loading of the hay in the afternoon and the leaving of the loaded car on the side track during the following night. This did not constitute negligence. Schooling v. The St. Louis, Kansas City and Northern Railway Company, 75 Mo. 519.
3. The only negligence, shown by the evidence to have been committed by the defendant in running its train, was in running said train within the limits of Kirksville at a rate of speed greater than five miles per hour. But whether such illegal and negligent speed was the cause of the cow being killed, there was absolutely no evidence. There was no evidence from which it could have been inferred that said illegal speed was the cause
There was no evidence of any other negligence on the part of defendant.
For these reasons, the circuit court should, as asked by defendant, have instructed the jury to find for defendant.
The judgment of the circuit court is reversed.