Ravenscraft v. Missouri Pacific Railway Co.

Philips, P. J.

This action was begun in a justice’s •court. On appeal in the circuit court recovery was had by plaintiff on the second count of the statement, which is as follows:

“ Plaintiff, for another and further cause of action, states, that, on or about the.twenty-fifth day of January, 1885, the said defendant, while running its engine and train of cars over its said road, in said Polk township, by its agents, servants, and employes, and by the carelessness and negligence in the management of its said engine and cars, carelessly and negligently, with said engine and train of cars, • struck, run over and killed two fine brood sows, the property of plaintiff, and killed one of them outright, of the value of twenty dollars, to plaintiff’s damage in the sum of twenty dollars, and badly crippled and injured the other, to the damage of plaintiff in the sum of ten dollars, whereby, plaintiff sustained damages in the sum of thirty dollars, for which he asks judgment.”

*621 Plaintiff’s evidence tended to show the following-state of facts: That the hogs escaped from his inclosure, and went to the point of injury, on or near defendant’s track. This was in the town of Straslburg. The-collision occurred about midway between the depot and the public road-crossing, which is about forty feet east of the depot. The collision did not occur at the public-road-crossing. Defendant’s trains were not in the habit-of stopping at this station. The one in question made no stop. It ran, probably, at the rate of twenty miles an hour at this point and time.

Against the objection of defendant, the plaintiff was-permitted to prove that, after sounding the usual signal of approach to said' station, the defendant did not sound the bell, or -the whistle, on its engine in passing this-point. Plaintiff was also permitted, over the objection of defendant, to introduce evidence tending to show that corn was suffered to remain on the track at this point, whereby such stock would be attracted thereto. The-evidence showed that, as the train approached the station, these hogs were near the track, and passed, presumably, on to the track just as the engine approached.

At the conclusion of plaintiff’s evidence, the defendant interposed a demurrer to the evidence, which was refused. The court, thereupon, at the plaintiff’s instance, gave the following instructions to the jury:

“1. The court instructs the jury that if they believe, from the evidence, that plaintiff’s hogs, mentioned in the first count of his petition, came upon the track of' defendant’s railroad, on or about the-day of October, 1884, and were killed by defendant, through the negligent management of .its road and cars, or either of them, or by the negligence or carelessness of defendant, in any manner, then you will find for the plaintiff.”

“2. If the jury believe, from the evidence, that plaintiff’s hogs, mentioned in the second count of this petition, came upon the track of defendant’s railroad, at- *622 a public road or street, and were killed, and that defendant did not ring the bell on its engine, at a distance of at least eighty rods from the place where the railroad crossed said road or street, and did not keep said bell ringing until it had crossed said road or street, or that defendant did not sound the steam whistle on said engine, at least eighty rods from the place where the railroad crossed said road or street, and failed to sound said whistle at intervals until its engine crossed said street, ■and that defendant allowed its said road to be strewn with grain and corn, so as to attract animals on its said road, or that said hogs were killed by the carelessness or negligence of defendant, in the management of its .said road, or engine and cars, then you will find for the plaintiff.”

The jury found for the plaintiff, on said second count, and for the defendant on the first.' Defendant has appealed.

I. The action being one at common law, the plaintiff was not required to aver more than general negligence. “An allegation specifying the act, the doing of which caused the injury, and averring generally that it was negligently and carelessly done, will suffice.” Mack v. Railroad, 77 Mo. 232 . But where the pleader, in such case, sees fit to specify the grounds of negligence, he will be confined in his proofs to the facts thus specified. Waldhier v. Railroad, 71 Mo. 514 ; Schneider v. Railroad, 75 Mo. 296 . In the count on which the plaintiff recovered, the imputed negligence is specifically declared to be “carelessness and negligence in the management of its said engine and train of cars.” Under this allegation, it was competent for plaintiff to show that defendant failed to ring the bell or sound the whistle, provided such omission contributed to the injury complained of. Schneider v. Railroad, supra; Goodwin v. Railroad, 75 Mo. 73 .

But the chief trouble to the plaintiff is, that the hogs were not injured at the crossing of any public high *623 way. It is by reason of the statute that negligence is imputable to the defendant for failure to sound the signals, or one of them; and this pertains only to injuries occurring at the crossing of a public highway. Laws, Mo., 1881, sect. 1, p. 79. The engineer was not required to ring the bell, or sound the whistle, on merely discovering the hogs near his track. Flannery v. Railroad, 23 Mo. App. 126 ; Sloop v. Railroad, 22 Mo. App. 696 ; Milburn v. Railroad, 21 Mo. App. 430 ; Lord v. Rail road, 82 Mo. 142 ; Young v. Railroad, 79 Mo. 336 . If the engineer discovered the presence of the hogs in such relation to his track as to have indicated, to a watchful and prudent person, in his situation, that they were about to, or would, likely, enter upon the track in front of his engine, it would have been his duty, after discovering the fact, to put forth every reasonable effort •consistent with the safety of his train and the passengers, to avoid the collision. The evidence in this case did not show the inculpatory fact to make out a cause of action -on this ground.

II. It was incompetent, under the allegations of the second couut, to make any proof respecting the presence of corn on the railroad track. This was clearly outside of the imputed negligence, which. was limited to the manner of running and managing thé train.

III. The instructions, aside from the error in submitting to the jury the fact respecting the corn being on the track, are faulty in leaving it to the jury to find, in a general way, what constitutes negligence. The court skould declare the law, and the jury should find the facts, it is true; but it is the province and the duty of the court to tell the jury whether a given state of facts would constitute negligence, under the pleadings. Goodwin v. Railroad, supra; Camp Point M'f’g Co. v. Ballou, 71 Ill. —; Woolery v. Railroad, 5 West. Rep. 667.

The other judges concurring,

the judgment of the circuit court is reversed and the cause remanded.