69 Mo. 215 | Mo. | 1878
On the 25th day of August, 1875, plaintiff filed a statement before M. H. Lewis, a justice of thb peace, Prairie township, in Schuyler county, complaining, among other things, that defendant, in June, 1875, ran its train of ears upon one of plaintiff's cows by its carelessness and
It was agreed by counsel for plaintiff and defendant that the injury complained of occurred on the line of defendant’s railroad, within that portion of the town of Green-top, a duly incorporated town in Schuyler county which is laid off into blocks, lots and streets, the plat of which town is duly executed and acknowledged, showing that it is so laid off as before stated, and that said plat was on file in the proper office previous to the date of the injuries complained of; the cow was struck and crippled by a heavy through freight train going south, moving at the rate of six miles per hour, at a point about half way up a heavy grade about one mile long, and that the cow was struck in the night.
Defendant asked the following instructions, of which those numbered one and four were given, and three, five and sixrefused: 1. The court declares that the killing and crippling of plaintiff’s stock having occurred within that part of the town of Greentop platted and laid off on both sides of defendant’s road into blocks, lots, streets and alleys, the plaintiff cannot recover, unless he proves by a preponderance of the testimony that the defendant was guilty of actual negligence in killing and crippling the stock sued for. 3. If the court finds from the testimony that plaintiff's cqw was crippled by a heavy through freight train moving south, and at a point about half way up a heavy grade about one mile in length, and between fifty and one hundred yards south of a sharp curve, and when so striking said ców said train was moving at the rate of six miles
It was held in the case of Wier v. St. Louis Iron Mountain R. R. Co., 48 Mo. 558, and also in Lloyd v. The Pacific R. R. Co., 30 Mo. 199, that notwithstanding the provisions of Wag. Stat., sec. 5, p. 520, the law will not presume negligence on the part of a railroad company from the killing of stock within the corporate limits of a town or city. The benefit of this principle was given defendant to the fullest extent in the first instruction, and as the question of negligence was properly submitted therein, at the request of defendant, we are absolved from making an investigation as to whether there was any negligence authorizing it to be given..
We have been cited to several authorities from other States to sustain the objections to the action of the court in refusing the third, fifth and sixth instructions. The question involved in them as to whether the speed of the train at the time the stock -was killed, was to be considered as an elément of negligence having bben passed upon by this court in the case of McPheeters v. The Hannibal & St. Jo. R. R. Co., 45 Mo. 22, where a cow was killed at a public crossing within the corporate limits of the town of Palmyra, we deem it unnecessary to look for a rule elsewhere upon that subject. It was observed by Judge Wagner, in that case, ‘ that the train was running at full speed,
Judgment affirmed,
Aeeirmed.