45 Mo. 22 | Mo. | 1869
delivered the opinion of the court.
The first question which will be considered is the motion in arrest, made by the appellant, which brings up the sufficiency of the-petition. The action was for negligently killing a cow by the
It has been expressly decided in this court, that a petition against a railroad company, which states that the defendant, while running its locomotive, etc., negligently struck the cattle of the plaintiff, etc., shows a good cause of action at common law. (Garner v. Hann. & St. Jo. R.R. Co., 34 Mo. 235; see also 3 Tiff. & Sm. Pr. 88.) The petition was, I think, sufficient, and the court therefore committed no error in overruling the motion.
As the injury occurred at a public crossing, in the streets of a town, and not where it was incumbent on the, company to erect a fence, there could be no recovery without proof of actual negligence. (Meyer v. N. M. R.R. Co., 35 Mo. 352.) But the question of negligence is peculiarly and exclusively for the jury to determine, and it is hardly necessary to again repeat what has been so often held by this court, that if there is any evidence to .sustain the verdict we will not interfere. It is true the employees of the failroad swore that there was no negligence, but what weight or credibility should be attached to their testimony was for the jury, who heard them detail their evidence and could form a much more accurate opinion than we could pretend to. .It is admitted on all sides that the train was running at full speed ;at the rate of ten or twelve miles an hour, the usual speed of freight trains, and it is questionable whether such a rate at a ■public crossing in a town, where people are continually traveling and stock crossing, ought not of itself to be held negligence. At any rate, this, in connection with other circumstances, was
So far as the evidence is concerned, there is nothing calling for the revisory action of this court, and the only question is whether there was any error in the instructions. The plaintiff asked, and the court gave, but two instructions at his request. The first declared that the defendant, its servants and agents in the control of its train were bound to use reasonable care and diligence in the management of its train to avoid doing injury to stock in the crossing of public streets and highways. The second directed the jury that if they believed, from all the facts and cir-stances proved in evidence, that the defendant, its servants and agents, could, by the use of reasonable care and diligence, have avoided injuring the plaintiff’s cow, they ought to find a verdict for the plaintiff.
The court, on motion of the defendant, gave the following instruction: “The defendant is not liable for damages for the injury or killing of horses, cattle or other animals, by one of its locomotives, engines or cars attached to it on the crossing of the public street in a city or town, unless the employees or agents conducting and managing such locomotive engine or cars attached to it were guilty of negligence.”
I see nothing objectionable in the instruction of the plaintiff, but when coupled with the one given for the defendant, the whole law applicable to the case ivas fully and fairly submitted, and there was no ground left for complaint. Defendant further asked the court to instruct the jury that if the plaintiff voluntarily suffered his cow to go at large in the public streets, with no one to take charge of her, and to stray upon the track at a time when cars were passing, then he was guilty of carelessness, and could not recover for injuries done to the cow, unless such injuries were occasioned through the gross negligence of the agents and employees conducting and managing the locomotive and train. This instruction the court very properly refused. It is the law in England, and in some of the densely populated States in this Union, that the owners of cattle shall keep them inclosed, and if they stray therefrom they are trespassers, and the owners ar§
It is opposed to the policy of the State in its present condition, and whenever it has been attempted to be enforced, it has met with resistance and condemnation. The question was elaborately considered in Gorman v. Pacific Railroad, 26 Mo. 44-1, and it was there held that the owner of cattle is under no obligation to keep them on his own premises.
The counsel for the appellant seems to lay great stress on the assumption that gross negligence should be proved before the defendant could be held liable. The word “gross” has been frequently used by judges in discussing this question, but I deem it wholly unnecessary. In England, it is now the course of adjudication, and definitely decided, that there is no difference between negligence and gross negligence, the latter being nothing more than the former, with the addition of a vituperative epithet. (Gill v. Iron Screw Collier Co., 12 Jur. N. S. 727.) The question is actual negligence, and if the jury found that it is sufficient. Further complaint is made that the court refused the fifth and last instruction asked for by the appellant, because it was offered out of time. The court has a standing rule that all instructions shall be submitted and passed upon before the argument of counsel commences. The other instructions were all passed upon and the respondent’s counsel was addressing the jury, when the appellant desired the last instruction to be given. There was nothing wrong in the action of the court; the rule was proper enough, and that it was adhered to and enforced is not a matter for our intervention. But were it otherwise, it would make no difference in the final disposition of this cause, as the instruction was wholly useless, the substance of it having been previously-given. There is no error in this record, and I advise the affirmance of the judgment.
Judgment affirmed.