Bledsoe v. Missouri, Kansas & Texas Railway Co.

Missouri Court of Appeals

Bledsoe v. Missouri, Kansas & Texas Railway Co.

164 S.W. 183, 177 Mo. App. 153, 1914 Mo. App. LEXIS 44

DecidedFebruary 16, 1914

StatusPublished

This text of 164 S.W. 183 (Bledsoe v. Missouri, Kansas & Texas Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bledsoe v. Missouri, Kansas & Texas Railway Co., 164 S.W. 183, 177 Mo. App. 153, 1914 Mo. App. LEXIS 44 (Mo. Ct. App. 1914).

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Opinion

ELLISON, P. J.

Plaintiff’s action is to recover the value of a mare colt killed by one of defendant’s trains at a road or street crossing in the village of Hartsbnrg, Boone county. The judgment was for plaintiff.

The negligence charged in the petition was that defendant ran its train without either ringing the bell or sounding the whistle, eight rods before reaching the crossing as is required by section 3140, Revised Statutes 1909. The evidence tended to sustain this allegation and that it caused the collision which killed the colt.

An instruction for plaintiff required defendant to either ring the bell or to sound the whistle and defendant contends that the crossing being in the “town” of Hartsbnrg it was not required by the statute to sound the whistle. It is true that by the terms of section 3140 aforesaid, the whistle need not be sounded eighty rods from and on the approach to a crossing “in cities.” [Kennayde v. Railroad, 45 Mo. 261.] But the crossing involved here was not in a city. The petition alleges Hartsbnrg to be a “town;” and the evidence shows it to be a “village” or “town” as those words are known to the statute as distinguished from a city, as defined by the statute, chapter 84, Revised Statutes 1909. The Federal census shows it to be a small place of 175 inhabitants, and it is therefore designated (if not incorporated) as a village. [Sec. 8528.] By the terms of sections 8527, 8528, and 9430, Revised Statutes 1909, construed together, no place of less than 500 inhabitants can be “a city” unless it has existed under a special law and elects to become a city of the fourth class. So, though Hartsbnrg is alleged by plaintiff to have passed ordinances and thereby must have been incorporated, we assume that it was incorporated under the general law (Sec. 9430).as a town or village, as no special law is pretended or in any way asserted.

[155]*155The instructions for plaintiff were unobjectionable, and the evidence to sustain his case abundant. The jury was entitled to draw the inference that if the statutory signals had been given it might have attracted the attention of the animal and caused him to get over the tracks without being struck. [Tate v. Railroad, 153 Mo. App. 533, 537.]

The judgment was for the right party and is affirmed.

All concur.

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ELLISON, P. J.

Plaintiff’s action is to recover the value of a mare colt killed by one of defendant’s trains at a road or street crossing in the village of Hartsbnrg, Boone county. The judgment was for plaintiff.

The negligence charged in the petition was that defendant ran its train without either ringing the bell or sounding the whistle, eight rods before reaching the crossing as is required by section 3140, Revised Statutes 1909. The evidence tended to sustain this allegation and that it caused the collision which killed the colt.

An instruction for plaintiff required defendant to either ring the bell or to sound the whistle and defendant contends that the crossing being in the “town” of Hartsbnrg it was not required by the statute to sound the whistle. It is true that by the terms of section 3140 aforesaid, the whistle need not be sounded eighty rods from and on the approach to a crossing “in cities.” [Kennayde v. Railroad, 45 Mo. 261.] But the crossing involved here was not in a city. The petition alleges Hartsbnrg to be a “town;” and the evidence shows it to be a “village” or “town” as those words are known to the statute as distinguished from a city, as defined by the statute, chapter 84, Revised Statutes 1909. The Federal census shows it to be a small place of 175 inhabitants, and it is therefore designated (if not incorporated) as a village. [Sec. 8528.] By the terms of sections 8527, 8528, and 9430, Revised Statutes 1909, construed together, no place of less than 500 inhabitants can be “a city” unless it has existed under a special law and elects to become a city of the fourth class. So, though Hartsbnrg is alleged by plaintiff to have passed ordinances and thereby must have been incorporated, we assume that it was incorporated under the general law (Sec. 9430).as a town or village, as no special law is pretended or in any way asserted.

[155]*155The instructions for plaintiff were unobjectionable, and the evidence to sustain his case abundant. The jury was entitled to draw the inference that if the statutory signals had been given it might have attracted the attention of the animal and caused him to get over the tracks without being struck. [Tate v. Railroad, 153 Mo. App. 533, 537.]

The judgment was for the right party and is affirmed.

All concur.

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164 S.W. 183, 177 Mo. App. 153, 1914 Mo. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bledsoe-v-missouri-kansas-texas-railway-co-moctapp-1914.

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