Lynn v. Chicago, Rock Island & Pacific Railroad

75 Mo. 167 | Mo. | 1881

Sherwood, C. J.

Plaintiff’s statement charges such facts as entitle him to recover under section 38, page 310, 1 Wagner’s Statutes, that is, for failure by defendant to ring its bell and blow its whistle as in said section provided. The statement also alleges, in substance, that in consequence of such failure and in consequence, also, bf the negligent running of the defendant’s train of cars, the cattle of plaintiff were killed, etc. There was evidence tending to show that defendant failed to comply with its statutory duty as aforesaid, and was also guilty otherwise of negligence resulting in the injury complained of. There was, therefore, no error in refusing the instruction in the nature of a demurrer to the evidence. Nor for the same reason, was error committed in embracing in the instructions given at plaintiff’s request, both the grounds on which he relied for a recovery, since both those grounds constituted but one cause of action, that cause of action being" the killing of plaintiff’s cattle, and the statement setting forth, as the means by which that injurious result was-brought about, the failure of the defendant in its statutory duty and its negligence in other particulars. And it is allowable for a plaintiff' in an action before a justice of the peace to set forth his cause of action in one connected statement, as is done in the present instance. This may be done to meet the exigencies of the trial. If on the trial, he proves, for instance, that the injury complained of arose from the failure of the company to ring the bell and blow the whistle, he makes out his case. If he proves-that the injury was caused by the negligence of the company in running its cars, he also succeeds; and he is entitled to the same measure of success, if he establishes that, the injury was the compound résult of negligence and failure in the performance of a statutory duty.

So far as concerns the instructions, those given on behalf of plaintiff, and those given on behalf of defendant, placed the cause very fairly before the jury, and left the defendant no valid ground of complaint. Therefore, judgment affirmed.

All concur.