Summerville v. Hannibal & St. Joseph Railroad, 29 Mo. App. 48

Summerville v. Hannibal & St. Joseph Railroad

29 Mo. App. 48 | Mo. Ct. App. | 1888

Ellison, J.

This action was instituted under section 809, Revised Statutes, as amended by acts of 1881, for killing plaintiff ’ s cattle at a public crossing. The negligence charged is the failure to ring the bell or to sound the whistle, in the manner required by the statute. Under the rulings of our Supreme Court the onus is on plaintiff to prove that both these acts were neglected; if either is performed it is sufficient. The evidence that the bell was not rung is altogether of a negative charac*52ter. No witness was closer to the train than one hundred rods, more than a quarter of a mile. None of them are shown to have been listening for the bell, or that there was anything specially occurring to call their attention to it. They simply did not hear the bell. One witness said, “No, of course, I didn’t listen for it; but I think I would have heard it, if it had rung.” The only other witness on this subject was the engineer of the locomotive which struck the. cattle, and he, too, was called by the plaintiff. He testified that the bell was rung continuously; that the engine had a steam appliance attached which kept the bell ringing all the time the engine was in motion. The evidence of this witness was in fact not contradicted; the other witnesses do not pretend to say the bell was not rung. One of them says he thinks if it had been he would have heard it, but he was more than a quarter of a mile away, his attention was not called to it, and no fact or circumstance is shown making it probable he would have heard it, had it been rung. W e see no way for this case to escape the ruling made in Cathcart v. Railroad, 19 Mo. App. 118, and'authorities cited.

The judgment must, therefore, be reversed and the cause remanded.

All concur.