175 Mo. App. 464 | Mo. Ct. App. | 1913
This case must be reversed for the reason that it originated before a justice of the peace in Poplar Bluff township in Butler county, Missouri, and the allegation is that plaintiff’s cow was killed by defendant in Ash Hill township, in said county, and that these two townships adjoin each other; but there is no proof whatever of this latter- fact. It has been ruled in this State time and time again that under our statute where a suit for killing stock is brought against a railroad in a township other than the one in which the animal was killed, the fact that such townships adjoin is jurisdictional and must be both averred and proven. In this case such fact is averred but not proven. This is error. [Mitchell v. Railroad, 82 Mo. 106, 110 ; Wiseman v. Railroad, 30 Mo. App. 516 ;
The defendant’s objections to the sufficiency of plaintiff’s statement as not stating a cause of action are not well taken. The case originated in a justice court and it is not necessary to decide whether the facts stated are sufficient to constitute a good pleading according to the rules applicable to cases originating in the circuit court. The cases cited by defendant relate to the latter class of cases. After stating that plaintiff owned the cow, and defendant owned and operated a railroad through Ash Hill township in Butler county, it is alleged that on a certain named date the cow strayed on defendant’s track and that “defendant by its agents, servants and employees care-' lessly and negligently run its engine and cars upon and against said cow, at said point in Ash Hill township, Butler county, Missouri, on said 30th day of May, 1912, thereby killing said cow. That the defendant, its servants, agents and employees saw or by the exercise of ordinary care, diligence and caution could have been seen and avoided the killing of said cow.” This, we think, is a sufficient statement under the liberal rules applicable to justice courts. [Windle v. Railroad, 168 Mo. App. 596, 602, 153 S. W. 282, and cases cited.]
• As we understand the case from the meager evidence, defendant’s engine had been standing still some time — perhaps over night; that the cow was lying down close to the track, about thirty or forty feet from the engine; that as soon as the engine first “commenced
What we have said also disposes of the alleged error in admitting evidence that no whistle was sounded or bell rung. The court ruled that plaintiff could not recover on that ground but that it was a proper evidentiary fact as showing no attempt to scare the cow from the track. Defendant cites Coffin v. Railroad, 22 Mo. App. 601, as holding that a railroad is not required to sound the whistle within the limits of an incorporated town, but it is held in that case and in Turner v. Railroad, 134 Mo. App. 397, 402, 114 S. W. 1026, that if the engine was approaching a street or road crossing and within eighty rods thereof in such town, the bell must be rung continuously. As said in the Coffin case, supra, the sounding of the whistle might have served the same purpose as ringing the bell and thus rebutted the inference of the injury being the result of a failure to ring the bell. We cannot see how defendant was injure^ by proving that the whis
Defendant’s criticism of instruction numbered 1, given for plaintiff, is well taken. It submits to the jury the question of defendant’s negligently running its engine upon and against the cow without in any manner instructing them as to what facts, if found, would constitute such negligence. The jury should not in a case like this be allowed to wander without chart or compass in search of a verdict and find negligence on any theory that might be suggested to or imagined by it; but, on the contrary, should be limited and required to find those facts which under the law constitute negligence and which are within the pleadinvs and find support in the evidence. [Sommers v. Transit Co., 108 Mo. App. 319, 324, 83 S. W. 268 ; Casey v. Bridge Co., 114 Mo. App. 47, 65, 89 S. W. 330 ; Nagel v. Transit Co., 169 Mo. App. 284, 288, 152 S. W. 621 ; Allen v. Transit Co., 183 Mo. 411, 81 S. W. 1142 ; Duerst v. Stamping Co., 163 Mo. 607, 63 S. W. 827 ; Miller v. United Railways, 155 Mo. App. 528, 546, 134 S. W. 1045.]
The record is too meager to determine accurately whether defendant’s refused instruction numbered 2 should have been given or not under the rule laid down