Wallace v. St. Louis, Iron Mountain & Southern Railway Co.
74 Mo. 594
Mo.
1881
Check Treatment
Sherwood, C. J.

The demurrer to the evidence, was well taken. The injuries occurring, as they did, within the corporate limits of a city, it devolved on plaintiff, in order that he might recover, to show that the actual negligence of the railroad company caused such injuries; (Lloyd v. Railroad Co., 49 Mo. 199; Swearingen v. Railroad Co., 64 Mo. 73;) as in cases like the present one, the law raises no inference of negligence from the mere fact of the animal being killed on the railroad track. Wier v. Railroad Co., 48 Mo. 558; Calvert v. Railroad Co., 34 Mo. 242. We find no evidence in this record which, in the light of the authorities already cited, shows the defendant to be liable, since it does not appear what distance the colts were in advance of the train when first seen upon the track, nor that after they came upon the track they could have been seen by the agents of defendant in time to prevent the accident.

As a matter of law, no rate of speed at which a train is being run constitutes negligence per se. Maher v. Railroad Co., 64 Mo. 267. The circumstances of each particular case must be considered; negligence is altogether a relative term, and the question in cases of this sort is whether, when the stock is discovered on the track, the company could, without imperiling the persons or property entrusted to it for transportation, avoid injury to the stock. Whenever, in such circumstances, the injury can be avoided after the danger is discovered, then the company will be j ustly chargeable with culpable negligence, and not before. Pryor v. Railroad Co., 69 Mo. 215. Nor does the failure to ring the bell or sound the whistle constitute negligence per se; there must appear to be some necessary connection between the failure and the injury. Holman v. Railroad Co., 62 Mo. 562. It follows from the foregoing that the *598instructions in behalf of the plaintiff’were faulty in failing to tell the jury that defendant was liable if it failed to use proper diligence and endeavors to avoid the injury after discovering the animals on the track. The case of Gorman v. Railroad Co., 26 Mo. 441, is not analogous to this one. There the accident occurred where the company had failed to fence its track, and where it is held that if the road is not fenced, as required by law, it matters not that the highest care is exercised by the agents of the corporation. Judgment reversed and cause remanded.

Hough and Henry, JJ., concur;- Norton, J., in the result; Ray,. J., absent.