86 Mo. 104 | Mo. | 1885
— This action is to recover the value off two cows killed by defendant’s train of cars at a public-crossing. Plaintiff had judgment, from which defendant has appealed.' The petition contains two counts,, one for killing a cow- on the fourteenth, and the other1 for killing a cow on the twenty-third of June, 1881. The killing of the cow on the fourteenth occurred about sundown, and the other in the forenoon of the twenty-third, about nine o’clock. Both cows were killed by1 regular passenger trains.
The evidence for plaintiff tended to prove that the-cows could have been seen, by one on the engine, from the whistling post south of the crossing, and at any point between that post and the crossing, a distance off eighty rods. That both trains were going north and running very fast, and in neither instance was the speed of the train checked. Plaintiff also testified that on the-fourteenth of June, 1881, he walked into his field and saw the cow standing on the crossing two hundred yards-from him. • That he started off across his field, and went twenty or thirty rods and came back to the place-he started from, and the cow was still standing on the-crossing. This was about five or six o’clock. That-when he got back to the place he started from he heard the train, which was the regular evening passenger-train. He testified, as to the cow killed on the twenty-third, that he was about two hundred'yards from the-crossing, and saw the cow on it, and a few minutes after saw the train coming north, about one-half mile off, about 9 o’clock, A. m. That he stood and looked at the cow. That his boys were ploughing about half-way between him and the cow. His son testified that he was
Oharkey, for plaintiff, testified that he was at Mil-'burn’s house when the cow was killed on the fourteenth ; that plaintiff was at the house just before it occurred. 'That witness spoke.of the cow being on the crossing in plaintiff ’ s hearing. He, plaintiff, then went north into the field from the house, to a point nearly west of the •crossing. “ It was a good little bit after that till the •cow was killed.”
Defendant asked an instruction in the nature of a •demurrer to the evidence, which was overruled. This is .a peculiar case. The plaintiff’s cattle habitually stood upon this crossing in the evening. He saw both cows on the crossing before they were killed. When the first •one was killed his attention was called to the fact that .she was on the crossing a little before the train going north was due. He was then at his house in a southwesterly direction from the crossing, and instead of going toward the crossing, he went north to a point west of the crossing. His own testimony shows that if he had made such an effort as a prudent man, desiring to .save the cow, would have made, he could have driven her from the crossing before the train reached it. He made no effort whatever to get her off of the track. Prom the point where he first saw the cow he walked a distance, in going and returning to it, greater than the •distance the cow was from that point, and when he returned she was still on the crossing. This is his own testimony, and he states no emergency to prevent his going to the cow. With respect to the second cow he was two hundred yards from her when he first saw her •on the crossing, and a few minutes after he heard the train coming. His boys were midway between him and
Contributory negligence was not pleaded, but when the plaintiff, in making out his case, clearly establishes-that the injury he complains of was as much the result of his own negligence as that of the party of whose negligence he complains, can he recover? The ground of his complaint is that the injury was occasioned by the negligence of the defendant, and if Ms-proof shows that his own negligence directly contributes to produce the injury, he disproves the case alleged. Buesching v. Gas. Co., 73 Mo. 229. If the cows were killed intentionally a different question would be presented, but while the petition alleges that they were ki11p.il carelessly, recklessly, and wilfully, there is no-evidence of a wilful killing, and three members of the court, Sherwood and Black, JJ., and myself, are of the opinion that plaintiff failed to make proof of negligence against the company. For aught that appears the whistle was sounded, and the bell rung on the engine to frighten the cattle from the track. Plaintiff offered no proof that this statutory duty was not performed by the train men. If they failed to make use of those signals of warning, it was negligence, but it was for plaintiff to prove such negligence. It was not a fact peculiarly within the knowledge of the train men. Proof that the speed of the train was not checked, and that the cattle could have been seen eighty rods off, does not establish negligence. It is not shown that they were seen, or, if not, that it was owing to the negligence of the train men. But, be this as it may, and even conceding that there was ample proof of negligence against the defendant, yet it is but negligence against negligence, and where both parties are guilty of negligence contributing directly to produce the injury, there can be no recovery.
The instructions as to plaintiff’s contributory negligence very fairly submitted that question to the jury, but the error Was in submitting it at all. The case .■should have been withdrawn from them at the close of plaintiff’s testimony. The judgment is reversed.