| Mo. Ct. App. | Nov 9, 1891
This is an action instituted, before a justice of the peace to recover the statutory penalty of $20, under section 2608, Revised Statutes, 1889, for the alleged failure on the part of the defendant to ring the bell or sound the whistle at a public crossing. The justice of the peace before whom the case was tried rendered judgment for the plaintiff; upon appeal to the circuit court, evidence was heard by the court, a trial by jury having been waived, and judgment rendered for the plaintiff, from which the'defendant has prosecuted its appeal.
I. The first point presented for reversal is, that the statement or complaint filed with the justice is insufficient in that it states only that defendant corporation^ “has been operating and running the St. Joseph, St. Louis & Santa Fe railway, from North Lexington,
There is no merit in this contention. If the defendant was at the time in the possession of and runningand operating the railroad in question, it was presumptively the owner; and in the absence of a contrary showing the court would be authorized in holding defendant to be the owner. More than this whether defendant was operating this railroad as absolute owner, lessee, or otherwise,’ it was liable for the violation by it of the provisions of. this statute. It filled the requirement of “owner” under this statute. 1 Rorer on Railroads, p. 553 ; 1 Redfield on Railways [ 6 Ed.] sec. 142; Brown v. Railroad, 14 Mo. App. 580.
II. It is further contended that there was an absence of evidence that the defendant was operating this line of railroad, and, with some show of earnestness, counsel assert that the prosecuting witness gave evidence that some other railroad company than defendant operated the railroad.
The following testimony is quoted : “Q. What road was this train running on ? A. It was this road running here to Richmond, the St. Joseph. St. Louis & Santa Fe, at that time the St. Joseph & St. Louis railroad.” While this language is by itself somewhat ambiguous, it would seem that the court was justified in the understanding that in the last clause of the answer the witness only repeated in an abbreviated form the defendant’ s corporate name, and that he did not mean to say that the offense was committed by some other railroad company. Besides from the other witnesses it may be as well understood that the defendant at that time was running and operating the offending train. If defendant
III. The third and last point made in appellant’s brief is to the effect that plaintiff failed to show that .there was an established public road at the crossing where defendant neglected to ring the bell or sound the whistle. There is no showing in this record for such contention. The evidence is ample to justify plaintiff’s claim of the existence of a public traveled road leading out from the town of Lawson, into Ray county, and crossing’ defendant’s railroad. One witness stated that he had known that highway for about ten or twelve years. Witness Crawley testified, that he knew the road mentioned by other witnesses, and that “it has been a public traveled road for from fifteen to eighteen years. It has been worked that long,” etc. This was a sufficient showing of a “traveled public road” named in the statute. It was not required that it should be shown by the records of the county court that the road had been established by proceedings in that court. 1 Rorer on Railroads, p. 552 ; R. S. 1889, sec. 7847.
Judgment affirmed..