Tate v. Wabash Railway Co.

153 Mo. App. 533 | Mo. Ct. App. | 1911

ELLISON, J.

Defendant’s train struck and killed two of plaintiff’s cows at a place where its road crosses a public highway, and he brought this action for damages. The judgment in the trial court was in his favor.

The following are the facts, substantially as stated by defendant:

The plaintiff lived on a farm on the east side of and adjoining the railroad, about a mile from the village of Hallsville. At this place the railroad runs in a general northeast and southwest direction. There is a county road about a quarter of a mile to the west of, and nearly parallel with it.

Another public road, referred to in the evidence as a lane, runs from the first county road in a general easterly direction across the railroad to the plaintiff’s farm.

According to the witnesses, the cross road runs east, then makes a “jog” south for about seventy-five steps, and east about forty-five or fifty steps to the crossing.

In going east toward the crossing, the view of the lailroad to the north was somewhat obstructed by corn at the time of the accident, but from the jog south there was a clear view for at least a half miles northeast of the crossing.

On the afternoon of the accident the plaintiff’s son, a boy of seventeen, was bringing the cows home toward the crossing, from a neighbor’s pasture. After he turned south, and while he was in the “jog” he noticed a train up at the whistling post, coming south toward the crossing. He then got over the wire fence and attempted to get ahead of the cows, but did not succeed. The cows went onto the crossing immediately in front of the train and were instantly struck and killed. The train was late and running at a high rate of speed, variously estimated at from forty to fifty miles an hour. The engine was running backwards.

A number of witnesses for the plaintiff testified that the bell was hot rung and that the whistle was first sounded after the train had passed the whistling post and reached a willow tree some hundred and thirty yards from the crossing.

At this point the brakes were applied, and the speed somewhat slackened, but not enough to do any good. The defendant did not introduce any proof.

We are satisfied with the trial' court’s view of the demurrer to plaintiff’s evidence. The case was properly submitted to the jury. The case, as made by the evidence, cannot fairly be likened to that of an individual crossing a track. Of course, there are instances where one’s acts in driving cattle could be illustrated by the duty one owes when himself crossing; but this is not one of them.

We think the only question in the case was that of negligence on the part of the defendant in regard to signals, and in this regard we are not impressed with the argument in defendant’s behalf. If the signals had been given as required by statute, it might have attracted the attention of the cows and have prevented them, in one way or another, from going upon the track; or it may have caused them to get over without being struck.

The only question presented looking towards a reversal of the judgment is in regard to an instruction which seems to have required the defendant to have sounded doth the whistle and the bell. If either signal is given, it is all the statute requires. [Turner v. Ry. Co., 78 Mo. 578; Van Note v. Ry. Co., 70 Mo. 641; Terry v. Ry. Co., 89 Mo. 586.] The case cited by plaintiff, Atterberry v. Ry. Co., 110 Mo. App. 608, does not sustain the instruction. Sometimes a slight change in wording makes a great difference in meaning, and care should be taken when intending to inform a jury that only one of two duties is required, not to tell them that both must be performed. In this case plaintiff’s first instruction clearly enough informed the jury that it was dedefendant’s duty to sound the whistle, or to ring the bell. Then, in the second instruction, by changing the form of the statement, the jury were directed to find for plaintiff if they believed from the evidence that defendant failed to do either of these duties. This was the language, omitting parts not applicable: “If the jury believe from the evidence that . . . the servants of defendant in charge of the locomotive and cars neglected to sound the steam whistle of said locomotive at a point . . . or that said servants neglected to ring the bell of said locomotive at a point . . . then the jury should find for the plaintiff . . .” Thus the jury were told that if they believed the defendant neglected either of those duties, it was liable.

But the question remains: Was there any harm done defendant in view of the undisputed evidence that neither of the duties was performed as required by the •statute? We have already said that defendant did not introduce any evidence, while that for plaintiff established, by abundant affirmative testimony, that the whistle was not sounded and the bell was not rung.

In such condition of case, we think the technical error ought not to disturb the judgment, and it will accordingly be affirmed.

All concur.