Riley v. Wabash, St. Louis & Pacific Ry. Co.

18 Mo. App. 385, 1885 Mo. App. LEXIS 345

Opinion

Opinion by

Ellison, J.

This is an action commenced before a justice of the peace for killing a cow belonging to plaintiff’s intestate. The injury occurred within the limits of Missouri City. Plaintiff obtained judgment before the magistrate and in the circuit court, and defendant appeals, alleging as ground of complaint, that the evidence does not show in what township the animal was killed; that the court ■erred in permitting an ordinance of Missouri City in relation to speed of trains to be introduced over its -objection; that the rules of -defendant in regard to the speed of trains were admitted against defendant’s objection ; that the instructions were erroneous. The objections are not deemed good. It appears from the abstract furnished by appellant that ‘‘the place where the cow was killed was in Missouri City, in Pishing River township, in Clay county, Missouri.” In the case of Robertson against this -defendant, decided by the supreme court (not yet reported), it is expressly held, an ordinance as to rate of speed may be introduced, though not pleaded in a case alleging negligence generally, and where the plaintiff’s cause of action was not founded on the ordinance.- • -

We are of the opinion it was not error to permit the introduction of defendant’s rules so as to show they were being violated by the speed of the train. It was competent to go to the ' jury on the question of negligence charged against defendant. The instructions presented the case to the jury, and we see nothing in the conduct of the trial “materially affecting the merits of the action.”

All concurring,

the judgment is affirmed.