Lord v. Chicago, Rock Island & Pacific Railway Co.

82 Mo. 139 | Mo. | 1884

Philips, C.

This action was begun in a justice’s court, in Clinton county, based on the following statement:

“ Plaintiff’ states that on or about the 5th day of December, 1880, defendant did, in Lathrop township, in the county of Clinton, State of Missouri, by its agents, and engines and cars, negligently strike, beat, bruise, wound and kill one four-year-old cow, the same being the property of plaintiff, and reasonably worth the sum of $35, for which he asks judgment, with his costs in this suit expended.” Judgment for plaintiff, from which the defendant appealed to the circuit court, with a like result. Erom that judgment he prosecutes this appeal.

On the trial of said cause, the plaintiff, to sustain the issues upon his part, offered evidence tending to prove that his cow, of the value of $35.00, was struck and killed in the village of Lathrop, and about 150 yards south of the north line of the section upon which said town is located, by a passenger train of the defendant, going north, after dark, on the evening of September 5th, 1880; that on the north line of Lathrop, about 150 yards north of where his said cow was struck and killed, there was a public crossing, and there was also another public crossing, about 150 yards south of where said cow was killed. Plaintiff against the objection of defendant, introduced evidence tending to show that the train in question did not stop at the station at Lathrop, but passed through at the rate of twenty or twenty-five miles an hour. This was all the evidence. "Whereupon the defendant demurred to the evidence, which the court overruled, and the court, sitting as a jury, found the issues for the plaintiff’ and entered up judgment accordingly.

There was not evidence to support this verdict, and the court should have sustained the demurrer to the evidence. Neither the law of the land, nor the general statutes prescribe any rate of speed at which a railroad may run over its own right of way. The law exacts of those in charge of the trains running through towns and populous districts a greater degree of caution and circumspection than through the country, and this because of the greater peril to life and limb, both of the passengers entrusted to their safety and to the people presumably frequenting the passways oyer a railroad running through a town or city. But “the rule is that the company shall fix its own rate of speed as regards others than passengers, and the above are exceptional cases, each standing upon legislative enactment, or its own peculiar circumstances.” Maher v. Railroad Co., 64 Mo. 276. No rate of speed is per se negligence, in the absence of statutory or municipal regulation. Sherm. & Rod. Neg. 478; Goodwin v. Railroad Co., 75 Mo. 73; Wallace v. Railroad Co., 74 Mo. 594; Bell v. Railroad Co., 72 Mo. 50, 61; Powell v. Railroad Co., 76 Mo. 80.

There was no necessary connection between the fact proved and the injury sought to be attributed thereto. There was no evidence that cattle were in the habit of frequenting this district of country, or that the servants of the railroad company knew of any such fact, if it did exist. There was no evidence that those in charge of the train saw the cow before or after she was killed, or that they might, with the exercise of due care, have seen her in time to prevent the injury. In short there was nothing shown by the plaintiff, save the injury and the passing of the train at the rate of twenty or twenty-five miles an hour, over a tract of land inside of a village midway, between public thoroughfares 900 feet apart.

There is no authority to support such a verdict, and it was the duty of the trial court to have so told the jury.

The judgment of the circuit court is, therefore, reversed and the cause remanded.

All concur, except Norton and Sherwood, JJ., absent.