71 Mo. App. 263 | Mo. Ct. App. | 1897
This is an action which was brought to recover the value of a cow killed upon a public crossing over defendant’s railroad in Cooper county. The plaintiff had judgment in the circuit court and defendant appealed.
The statute, section 2608, requires that a bell shall be placed on each locomotive engine and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road and be kept ringing until it shall have crossed such road, or a steam whistle shall be attached to such engine and be sounded at least eighty rods from the place where the railroad crosses any such road and be sounded at intervals until it shall have crossed such road. It is also further provided in the same section that the railroad company shall be liable for all damages which any person may sustain at such crossing when such bell shall not be rung or such whistle sounded as therein required.
Notwithstanding the negligence of plaintiff in permitting his cow to run at large in violation of the stock law, and but for which she would not have got upon the crossing, yet if the negligence of defendant in
The remark quoted by defendant from the opinion in Campbell v. Railway, 59 Mo. App. 156, was correct as applicable to a case of that kind. The inference is not to be deduced therefrom that railway companies are relieved from the observance of the precautions required by section 2608, supra, in those localities where the stock law is in force.
The defendant’s third and fourth instructions fairly expressed the law applicable to the case, and should have been given and the plaintiff’s first should have been refused.
It results that for the error in giving and refusing of said instructions the judgment will be reversed and the cause remanded.