84 Mo. 119 | Mo. | 1884
This is a common law action for negligently and carelessly running over and killing a cow belonging to plaintiff, valued at forty dollars. On appeal to the circuit court judgment was recovered by plaintiff as below, from which the defendant brings the case here by appeal. It appears from the evidence that on or about the first day of June, 1881, a freight train of the defendant, with some fifteen or twenty cars, with a caboose at the rear end, was in the evening, before dark, going eastward on the defendant’s track, within the corporate limits of the town of Jamison; that the grade descends somewhat on the road leading through the town; that the plaintiff’s cow was on the track of the railroad at a road crossing about two hundred yards or more east of the depot, with her head turned eastward from the train; that, on approaching a read crossing, about two
I. It is urged as error that the court, against the objection of defendant, permitted the plaintiff to prove the existence of the ordinance without any allegation relating to it in his statement. I see no error in this. The plaintiff ’ s cause of action was not founded on the ordinance. The ordinance furnished no cause of action, and for these reasons it was unnecessary to plead it. The existence of the ordinance was only a fact bearing upon the conduct of the managers of the train, and whether the defendant was guilty of negligence at the time and place, resulting in loss to the plaintiff, depends upon all the facts legally bearing upon their action. If defendant was running its train in violation of law at the time, such fact is competent evidence in support of the charge of negligence. Goodwin v. Chicago, Rock Island & Pacific R. R., 75 Mo. 73; Lynn v. R. R., 75 Mo. 167.
II. A witness testified that the cow could have been seen from the depot and, perhaps, from the upper crossing west of the depot, which he says was some four or five hundred yards west of the point at which the cow was killed. Against the objection of defendant, the witness was permitted to say that “if the train had been running at six miles an hour, it could have been stopped after passing the depot, and before striking the cow, but
III. It is contended that the ordinance is void as not being within the power of the town to pass the same. The town was incorporated in 1876. Assuming it to be a town which could become a city of the fourth class by election to that end, the defendant insists that the power to regulate the speed of trains is given to cities of the second and third class by express grant, and that it is, therefore, denied to towns and cities of the fourth class, because it is not expressly granted to them. But towns of this class were in 1876 authorized “ to pass such other by-laws and ordinances for the regulation and police of. such town and commons thereto appertaining, as they
IV. The argument that the ordinance is void as being unreasonable, is without force.
There being no error to justify a reversal, the judgment is affirmed.