85 Mo. 611 | Mo. | 1885
This suit was brought to recover damages for killing a horse and breaking a wagon, by a train of defendant’s carson a public road crossing, alleged to have been occasioned by the failure of defendant to construct and maintain a good and sufficient crossing over its road. Plaintiff obtained judgment for $129.60, from which the defendant has appealed.
The evidence on the trial tended to show that the crossing in question was, at the time of the accident, and for some time previous had been out of repair, and in bad condition, and that in consequence thereof, plaintiff’s horses, hitched to a loaded wagon, which plaintiff was driving over the crossing, stalled with the wagon on
The court, we think, under the evidence, was justified in submitting the case to the jury. The court gave two instructions, one to the effect that if the accident was occasioned by the failure of defendant to keep the crossing in repair, they would find for plaintiff the amount of damage sustained, with six per cent, interest; the other to the effect that if plaintiff negligently went upon the crossing without looking or listening for the approach of the cars, and might, by ordinary care, have seen or heard the train in time to have avoided the accident, the jury would find for defendant.
There was no error in refusing the instructions asked by defendant, inasmuch as those given fairly submitted the issue, except in the particular hereinafter noted, to the jury. It is insisted that error was committed in refusing an instruction of defendant’s to the effect, that they could not find for defendant on the grounds of failure to ring the bell, or sound the whistle, or for the negligent management of the train. While there was no evidence that defendant omitted, or failed to ring the bell, or
The first instruction given by the court is erroneous-in this, that it authorized the jury to allow six per cent, interest on the damages, and but for the remittitur of $9.60 which plaintiff has entered in this court, the judgment would be reversed. DeSteiger v. H. & St. J. Ry. Co., 73 Mo. 33, and cases there cited. The lowest estimate placed by the evidence on the value of the horse killed, was one hundred dollars, and the lowest estimate-for damage to the wagon was twenty dollars, and as the remittitur of the above sum cures the error in the instruction, the judgment will be affirmed in all respects, except as to the sum of $9.60 remitted, and plaintiff and appellee will be adjudged to pay the costs of this appeal which are hereby adjudged against him. Miller v. Hardin, 64 Mo. 545; Wade v. Mo. Pac. Ry. Co., 78 Mo. 362.