Braxton v. Hannibal & St. Joseph Railroad ( 1883 )

Henry, J.

This action was commenced before a justice of the peace by plaintiff to recover damages for the killing of his cow by a train of defendant’s cars. The statement filed contained two counts, one based upon the 38th section of article 2, chapter 37, Wagner’s Statutes, and the other a common law count for negligence. Plaintiff had judgment successively in the justice’s court and in the circuit court, and from the latter this appeal is prosecuted.

The animal in question was killed just before daylight on a public crossing. ' No one witnessed it, except the train men, none of whom were called to testify. The fact of the failure to sound the whistle or ring the bell, as required by statute, was proved, and that the cow was killed on the railroad where it crossed a public road, was admitted. There was also evidence to show that for two or three days prior to the killing of this cow some hay left on the track and on the side of the track at that point by parties who shipped fruit trees over the road, was permitted to remain and was still there when the cow was killed, and that when found she had hay in her mouth.

This was all the evidence in the case, and the court instructed the jury properly as to defendant’s duty under section'38. It also declared to the jury that no negligence on the part of defendant was shown in leaving the hay on the crossing, and that plaintiff was not entitled to recover on the second count of his statement. It also properly refused one asked by defendant, that admitting all the evidence offered by plaintiff’ to be true, the jury should find for defendant. This applied to both causes of action in the statement, and, as we shall hereafter show, should not have been given as to the second count. And for the same reason, the instruction given by the court, with respect to the hay left on the track, was erroneous. The court refused an instruction asked by defendant, declaring that although there was a failure to ring the bell or blow the whistle, as required by the statute, and the cow was killed on the crossing, yet this was not sufficient evidence to entitle the plaintiff to recover. This was probably refused because it had already been declared in the instruction for plaintiff, in which the jury were told, that although they might find that the servants on the train neglected to blow the whistle or ring the bell, yet unless they should find that the striking and killing of the cow resulted from such negligence, they should find for defendant.

1iireAItoK°r1ng: and upon'ltheastatute oattiedamase to The court also refused the following asked by defendant : “ There being no evidence to show that the failure the bell or sound the whistle caused the injury, the verdict must be for defendant on the first count.”

This declared the law as held by this court in Holman v. R. R. Co., 62 Mo. 563, and Stoneman v. R. R. Co., 58 Mo. 503, in which the court said: “ There may have been no connection whatever between the negligent omission and the damage; and the very terms of the statute, under which the suit is brought, clearly indicate that the damage must be the result of the negligence.” That section requires the bell to be rung or the whistle sounded, at least eighty rods from the place where the railroad crosses any traveled public road or street, the bell to be rung continuously, or the whistle to be sounded at intervals until the locomotive shall have crossed such road or street — and also provides, in addition to a penalty to be recovered by an informer, that the company “ shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”

2. -;-. In a suit under this section by one injured in person or property, if the evidence fails to show that the injury resulted from the neglect of the statutory duty, the plaintiff cannot recover,by proving other negligence of the company, which, concurring with that omission of duty, occasioned the injury. Evidence of other negligence or carelessness is irrelevant and inadmissible. In Cary v. R. R. Co., 60 Mo. 209, and Crutchfield v. R. R. Co., 64 Mo. 256, it was decided that in an action under the-43rd section of the Corporation Act, there could be no recovery for an injury resulting from negligence in the management of the train. The reason for that decision* is equally applicable to an action based upon the section under consideration. One cannot base an action upon the statute and recover on a cause of action not alleged. If he cannot prove the connection between the omission of the statutory duty and the injury complained of, and can only establish a right of action by evidence of other negligence, he must resort to his common law action. The evidence with respect to the hay proved only what was admitted, that the cow was killed at the crossing, and under the decisions above cited, this was not sufficient to warrant a verdict for plaintiff.

3_._. ?aw°f or damage to eattie. The court erred in declaring that plaintiff was not entitled to recover on the second count. Under that count he had the right to prove any negligence of the company that contributed to produce the injury complained of, including that of a failure to ring the bell or sound the whistle, as required by the section under which this suit is brought. Goodwin v. R. R. Co., 75 Mo. 75.

The judgment is reversed on account of the refusal of defendant’s instruction last noticed.

All concur, except Norton, J., who dissents.