| Mo. Ct. App. | Jun 15, 1885
Opinion by
This action is based on a statement before a justice, of which the following is a literal copy:
“ David E. Main,
vs.
"Hannibal and St. JosephEailroad Company.
“ Before B. J. Burke, justice of the peace in Lathrop
township, Clinton county, Missouri.
*390 “Plaintiff says defendants are a corporation duly incorporated by the laws of the state of Missouri, and doing business in the name and style of the Hannibal and St. Joseph Railroad Company, and the 'Chicago, Rock Island and Pacific, Railroad Company. Plaintiff says the agents and servants of the Chicago, Rock Island and Pacific Railroad Company, in or about the 15th of' July, while in the employ of said lessees, and while running the lessees’ engine and cars along the line of defendant’s railroad track in the town of Lathrop, in Lathroptownship, in Clinton county, Missouri, negligently run the said lessees’ engine and cars over plaintiff ’ s cow, crippling and maiming said cow by the said negligence of said lessees, to the damage of plaintiff in the sum of fifty dollars. Plaintiff says that said cow was injured by said lessees’ engine and cars while being run by lessees’ agents, in Lathrop township, county and state aforesaid, on defendant’s railroad track. Wherefore plaintiff prays judgment for fifty dollars damage, and for all proper relief.”
It will be noticed the defendant is being sued for the negligence of the employes of the Chicago, Rock Island and Pacific railroad company. As this can only be done under section 790, Revised Statutes, 1879, there should have been some allegation that defendant had leased its road to that company. But if we concede there-is alleged intelligible matter sufficient to constitute a cause of action, even before a magistrate, there is no proof whatever tending to support the statement. There is nothing in the evidence to bring this case within the provisions of section 790. The demurrer to the evidence should have been sustained. The proof falls short of a case against defendant. There was no evidence here of a municipal regulation as to speed of trains in the town of' Lathrop. “Aside from statutory or municipal regulation no rate of speed is negligence per se." Powell v. Ry. Co., 76 Mo. 80" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/powell-v-missouri-pacific-railway-co-8007117?utm_source=webapp" opinion_id="8007117">76 Mo. 80; Wallace v. Ry. Co., 74 Mo. 594" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/wallace-v-st-louis-iron-mountain--southern-railway-co-8006941?utm_source=webapp" opinion_id="8006941">74 Mo. 594. There was. no evidence that the cow was seen in time to have safely stopped the train, or that she was seen at all, or that from the situation of the track and surroundings she might
The injury happening within the limits of the town of Lathrop, under the statement and facts in this case, there is no presumption of negligence from the killing. Wallace v. Ry. Co., supra. In the case of Weymore v. Ry. Co. (79 Mo. 247" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/wymore-v-hannibal--st-joseph-railroad-8007548?utm_source=webapp" opinion_id="8007548">79 Mo. 247), although the killing was in a town, there was an allegation and proof of the lack of a fence where one might lawfully have been erected, thereby putting the case under section 2124, Revised Statutes, 1879. The case is barren of nearly every condition to a recovery on part of plaintiff, as established by repeated decisions of the supreme court of the state.
The judgment is reversed.