Fitzgerald v. Chicago, Rock Island & Pacific Ry. Co. , 1885 Mo. App. LEXIS 347 ( 1885 )

Opinion by

Ellison, J.

We think this case, under the statement in evidence, is directly controlled by that of Wallace v. Ry. Co. (74 Mo. 594). “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.” Ib.

We are aware that this statement in the case cited, .is criticised in Weymore v. Railroad Company (79 Mo. 247), but the criticism has only reference, to its application to cases where there is an allegation and proof as to the lack of fencing, although in a town, where the railway company may lawfully fence. In thé case before us there is nothing in the statement 'or proof as to. fencing. There is no proof in this case to show that the defendant’s'servants could have safely stopped the train after discovering the cow. The evidence tends to prove the contrary. The fact of the track being straight and the view up and down for a considerable distance being unobstructed, does not help plaintiff’s-case, for the cow was not'on the track until the instant she was struck. And, according to plaintiff’s witness, the cow could not have been seen by the engineer until he was within the distance of across the room from her, - on account of her being between the elevator and the Wabash depot. It is true this witness states she thinks the engineer, when yet a long way off, could have seen the cow fifty or sixty yards away from the track. But if we are to hold that an engineer is to slow up or stop his train every time he sees cattle fifty or sixty yards off On one side of the track, we would reduce railroading below the speed of the stage coach. There is nothing to show that the cattle were, at the time the engineer might have seen them, approaching the track, standing still, or going from it.

The judgment is reversed and the cause remanded.

All concur.