Windsor v. Hannibal & St. Joseph Railroad , 45 Mo. App. 123 ( 1891 )

Rombatjer, P. J.

— This is a common-law action, instituted in the circuit court, to recover damages for the negligent killing of plaintiff ’ s cows by the defendant’s locomotive. The plaintiff gave evidence tending to show that his cows were seen on the track, when the train was about a mile and a half off; that thereafter one of the cows left the track and wandered off a slight •distance, but returned to the track when the train came within fifty yards ; that the train was running at a rate of speed oí ten or twelve miles per hour within the limits -of Monroe City, where the accident occurred, and that trains were restricted by an ordinance of the city to a speed of six miles an hour within its limits.

The defendant gave evidence tending to show that the train which killed the cows was a heavy freight train ; that the engineer first discovered the cows grazing near the track when the train was about five hundred feet from them ; that they came on the track when the engine was within forty feet; that the stock ■alarm was immediately given, the engine reversed and the brakes set, and everything done that could be done to bring the train to a halt; that the speed of the train within the city limits on that occasion was less than six miles an hour.

The defendant also gave evidence showing that the law restraining stock from running at large was in force in Monroe county at the date of the accident. The plaintiff himself was called as a witness by the defendant, and testified that he had secured the cows in a barn in the morning, but about an hour before the •accident he saw them standing outside of the barn, within a few feet of the defendant’s right of way, and no fence or obstruction between them and the defend■ant’s track ; that he was a hotel-keeper, was then preparing dinner, and was short of help, and had no time to go out and attend to the cows ; and that he did not .■see them again until after they were killed.

The defendant asked instructions in the nature of a ■demurrer to the evidence both at the close of the plaintiff’s case and at the close of the entire evidence. The court refused these instructions. There was a finding for the plaintiff, and the refusal of these instructions is .among the errors complained of.

That the defendant’s demurrer to plaintiff’s evidence was properly overruled, admits of no controversy. There was evidence tending to show that the train, shortly before the accident, and before it was checked, was running within the city limits at a rate of speed prohibited by ordinance, and inferential evidence at least that this fact contributed to bring about the accident. Although the ordinance was not pleaded, and did not, of itself, furnish a cause of action, its violation was evidence of negligence. Robertson v. Railroad, 84 Mo. 119.

The next question is, whether the court erred in overruling the defendant’s demurrer to the evidence at the close of the defendant’s case. As the credit to be given to the defendant’s witnesses was in the first instance a question for the jury, which the court could not withdraw from their consideration, this question must be answered by determining the effect of conceded facts shown by the defendant’s evidence.

That the law restraining stock from running at large was in force in Monroe county at the date of the accident, is conceded, as is also the fact that the plaintiff knew that his cows were at large and in the vicinity of the track for at least an hour prior to the accident. The plaintiff claims that this is not such contributory negligence as would debar him from recovery as a matter of law, and cites in support Spencer v. Railroad, 25 Iowa, 139, and Fritz v. Railroad, 34 Iowa, 337. But both of these cases were statutory actions for injuries caused by a failure to fence.

In the first case Judge Cole, speaking for the court, says: “ Under the ordinary and well-recognized rules of law it is very clear that, since the.plaintiff was himself guilty not only of negligence, but of the violation of a positive regulation of law, in suffering to let his hog run at large, he could not recover if the action was one at common law.” The liability of the defendant in that case was put upon the ground that the Iowa statute made the railroad absolutely liable for stock injured by a failure to fence, unless the injury was occasioned by the wilful act of the owner. It did not appear in that case whether the hog was running at large, by accident, or by the carelessness of the owner.

So in Fritz v. Railroad, supra, the decision was placed upon the statute, which provided : “Any railroad hereafter running or operating its road in this state and failing to fence its road on either or both sides thereof, against live stock running at large, at all points where said road has a right to fence, shall be absolutely liable to the owner of any live stock injured.” The only contention in that case was whether the words running at large should be confined in their meaning to legally or properly running at large, and it was held that they could not be so confined. But in the case at bar the action is not one under the fencing law. The place, where the animals were killed, is conceded to have been one where the railroad was under no obligation to fence. The fact that the animals were at large with the owner’s knowledge is shown by the plaintiff himself, and, therefore, is also a conceded fact.

In Bowman v. Railroad, 85 Mo. 533, a case similar in its facts to the present, an ordinance of the town of Louisiana prohibited hogs from running at large, and railroad trains from running at a greater speed than six miles an hour within the city limits. Plaintiff’s hog was killed by a train which was running in excess of this rate of speed, and it was claimed that this negligence was the cause of the accident. The supreme court held : “ That, if it be shown that the killing or injury was caused by this illegal rate of speed, then the defendant is liable; and would be liable even though the sow was at large in violation of another ordinance, provided, it be shown that she was so at large without the knowledge and consent of the plaintiff, and, provided further, that the defendant’s employes could by the exercise of ordinary care and prudence have stopped the train so as to prevent the killing.” This case certainly holds impliedly at least that, if the plaintiff knew that his stock was at large, in violation of law he could not recover, at least, not in the absence of a. wilful or wanton injury to the stock, or gross negligence on part of the defendant’s employes.

In Schwartz v. Railroad, 58 Mo. 207, the animal killed was a bull, which it was claimed was running at-large in violation of law. The defendant contended that it was not liable, unless the animal was killed by the gross negligence of its employes, but the court held the animal was not unlawfully at large under the applicatory statute, until after the expiration of three days’ notice served upon its owner, and hence-the defendant’s-claim was untenable. This ruling was affirmed in Owen v. Railroad, 58 Mo. 387. But none of these cases hold that the railroad company is under the same obligations-of care touching cattle, which are on its track in violation of the law prohibiting them from running at large,, as they are in regard to cattle which are on the track where it is neither the duty of the railroad company to-fence, nor the duty of the owner to restrain the cattle..

On the other hand no case can be found in this state,, which goes to the extent of holding that the railroad is not responsible for injury to trespassing cattle, when such injury was caused by the gross, wanton or wilful negligence of its employes. If the plaintiff’s evidence is true, and for the purposes of a demurrer we must assume it to be true, one of these cows never left the track from the time that the train was over a mile from them on a straight and almost level track, with nothing to-obstruct the view up to the time that they were struck; nor was the sx>eed of the train checked at all, but the train passed straight on after striking them without checking its- speed either before or • after. There was, therefore, some evidence of gross or wanton negligence, and the court did not err in refusing to withdraw the case from the jury, even at the close of the defendant’s evidence.

But we are bound to reverse the case for misdirection of the jury by the cpurt. The court submitted the question to the jury, whether the animals were at large with the owner’s consent, when, touching that matter, there was no dispute whatever. The court also charged the jury in sixteen distinct instructions, which are in a great measure inconsistent and irreconcilable, it would seem, on the theory that the defendant was held to the same reasonable care, as if the cattle had been lawfully upon the track, when the court should have charged the jury pointedly that, unless the cattle were injured or killed by the gross or wanton negligence of the defendant’s employes (defining the terms thus used ), there could be no recovery, but if they were injured by such negligence, the plaintiff was entitled to a verdict.

The judgment is reversed, and the cause remanded.

Judge Biggs concurs. Judge Thompson concurs in the result.