Perse v. Atchison, Topeka & Santa Fe Railroad

Ellison, J.

This action is based on common-law negligence of the defendant in running upon and killing plaintiff’s horses. The result of the trial was a verdict for plaintiff. The defendant’s road was properly fenced, and, the animals having escaped onto the track through a gate left open by one of plaintiff’s neighbors, defendant was in no way to blame for the accident, unless after seeing the animals upon the track its servants could, by reasonable exertion having regard to the safety’ of the train, have stopped before overtaking them.

Defendant’s servants were under no obligation or duty to look out for stock at that place. Their sole obligation, in this respect, being confined to making reasonable effort to avoid the accident, after discovering the danger. Jewett v. Railroad, 50 Mo. App. 547 . Such is the condition of plaintiff’s case at the outset, and, in view of the evidence which follows, it is apparent that he should not recover. There is an utter failure of proof of negligence, and in the absence of any being imputed by law none exists. The train was a freight train going at the speed of twenty-five miles an hour. The time was four o’clock A. m., on May 22. It had been raining and was. wet and foggy. The place was in a “cut,” where there is a curve in the track. No one saw the accident but the trainmen, and their testimony, considered alone, fully establishes that it was not possible to avoid the collision after discovering the horses.

There is nothing in the evidence for plaintiff, having a tendency to inculpate defendant. Plaintiff had gotten up before daylight, and was out from home hunting wolves. He was off the track two hundred and fifty yards or more sitting on a stump in the brush near by a wagon road. He saw the headlight of the engine as it entered the “cut,” and heard the engine give three, *174 four or five blasts which he calls a stock signal. But at the same time says, “They generally give four blasts when they go into that cut.” He did not know at this time that his horses were on the track, and his statement that this was a stock signal, instead of the usual cut signal, was, of course, mere conjecture.

Further analysis of the evidence is unnecessary since, from a consideration of its entire scope, it is apparent no case was made, and the judgment will, therefore, be reversed.

All concur.