BLAND, P. J.
This case was here on appeal by defendants at the March term, 1897, when it was reversed and remanded (70 Mo. App. 395). On retrial plaintiff again recovered a judgment, from which defendants appealed.
The charging part of the complaint is as follows: “That on the 2d day of September, 1895, in said Yan Burén township, the defendants by their agents and servants while running its engines and cars upon the said railroad did negligently, wantonly, carelessly, run-over, strike, maim and kill, to wit, one cow, of the value of fifty dollars, to plaintiff’s damage in the sum of fifty dollars, for which plaintiff asks judgment and for his costs.” The cow was killed in the town of Ritchie on the line of the St. Louis & San Erancisco Railroad and within [486]*486the switch limits in said town and at a point where the road is not fenced and where the defendants were not required to maintain a fence. The town of Ritchie at the date of the accident had from two hundred and fifty to three hundred inhabitants and was located on the north side of the railroad track, which ran east and west at that point. On the south side of the track was located a mill and elevator. A highway leading from the town to the mill and points south, crossed the track near the station house which was built between the main and switch track. There was but the one public road crossing at Ritchie, and from the evidence it was very much used by teamsters to reach the mill and elevator from the-north and by people traveling south. McDonell Martin, a witness called by the plaintiff, and the only witness who saw and testified to the position of the cow, relative to the track and train just before and at the time of the accident, states,, in substance, that he was walking from the town to the mill, where he worked; that about the time he stepped on the track he heard the engine whistle for the station, looked and saw the train coming from the west over a quarter of a mile away; that a couple of yearlings were on the track; these he drove-off; at the same time he saw plaintiff’s cow feeding along near-the track, “but had no idea that she would go on the track,” and did not drive her away, but when the train got within forty or fifty feet of where she was feeding, she came onto the track, and he tried to drive her off, but found he could not do so without exposing himself to danger; that just as she got on the track the engine whistled to scare her off, but instead of jumping off she turned up the,track and ran east from thirty to-forty feet, where she was caught by the engine and carried some distance and thrown off. Plaintiff testified that he did not see his cow go on the track, but saw her as she ran up the track toward the crossing, and that she was struck and thrown off at the crossing. Other witnesses for plaintiff saw the cow after she was struck by the engine and before she was thrown [487]*487off, all of whom testified that the cow was carried some distance on the pilot of the engine before she was thrown off and killed. The evidence for both parties establishes the fact that the engineer whistled for the station one half a mile •away, and again sounded the whistle just before the cow was struck. The evidence of the engineer and fireman is that the required statutory signals, when approaching a public crossing, were given. The evidence for plaintiff and his witnesses ■on this point was of a negative character, the witnesses stating that if the signals were given, they did not observe them, or had forgotten them. The evidence is that the engineer could have seen the cow from a quarter to a half of mile west of Ritchie, and that the train was running at a speed of from twenty-five to thirty miles per hour, and that it did not stop at Ritchie; that the train was a heavy one and made up of car loads of live stock, and it is conceded that it was physically impossible to have stopped or checked the train and prevented the injury within the distance the cow was of the train when she went onto the track. At the close of all the evidence the defendants moved the court to instruct the jury that under all the evidence the plaintiff could not recover; this instruction was refused. As was said by this court when the case was here on former appeal: “The action is for common law negligence. It'is not brought under the statutes (R. S. 1889, secs. 2611-4428), giving double or single damages for injuries to stock. It is therefore necessary, in order to recover, for plaintiff to show that the actual negligence of the defendant caused the killing of the cow.” To the same effect is Turner v. Railroad, 76 Mo. 261. “The omission to discharge any duty imposed by law upon common carriers, in the management of their vehicles, in transporting persons or property, is evidence of negligence,” says the supreme court; Goodwin v. Railroad, 75 Mo. 73; and “the fact that a railroad company’s trainmen failed to ring a bell or sound the whistle as the train approached the crossing of a public road, may bo given in [488]*488evidence in a common law action against the company for negligently hilling plaintiff’s steer at the crossing, without being especially pleaded.” Braxton v. Railroad, 77 Mo. 455. If, therefore, the plaintiff’s cow was killed at the crossing and neither of the statutory signals were given as the train approached the crossing and the killing resulted from such failure, then there was evidence of negligence, which it was proper to submit to the jury. Alexander v. Railroad, 76 Mo. 494; Holman v. Railroad, 62 Mo. 562; Wallace v. Railroad, 74 Mo. 594. But there is nothing shown in this case, but a possible omission of the duty to give the signals and the injury; this is not sufficient to make out aprima facie case for the plaintiff. Stoneman v. Railroad, 58 Mo. 503; Barr v. Railroad, 30 Mo. App. 248; Alexander v. Railroad, and Homan v. Railroad, supra.
Liability fixed. The evidence is undisputed that the cow did not go on the track at the crossing, and it is clear from all the evidence that she was not on the track at the crossing when she was overtaken and thrown onto the pilot of the engine. She was not at the crossing when the collision of the engine with her occurred; she did not undertake to pass over the track at the crossing; therefore the obligation to give the statutory signals did not apply to her situation. The statute is designed for the protection of persons and domestic animals passing over or about to pass over a public crossing, when trains are approaching, and damages for failure to give the signals are given for injuries resulting therefrom which are inflicted at the crossing, and not damages generally which may accrue to cattle running at large that come upon the track at points other than at public crossings and are injured; the place where the animal got on the track, not where killed fixes the liability. Moore v. Railroad, 81 Mo. 499; Snider v. Railroad, 73 Mo. 465; Fraysher v. Railroad, 66 Mo. App. 573; Ehret v. Railroad, 20 Mo. App. 251; Brassfield v. Patton, 32 Mo. App. 572.
[489]*489The evidence is nncontradicted that it was impossible to bave stopped the train in tiine to bave prevented tbe injury after tbe cow got on tbe track, and to establish actual negligence it must be assumed tbat tbe cow was in a perilous condition before sbe went upon tbe track, and tbat tbe engineer, saw, or by tbe exercise of due care could bave seen, ber peril in time to bave stopped tbe train and avoided the injury; but there is not a ray of proof to support such an assumption.
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BLAND, P. J.
This case was here on appeal by defendants at the March term, 1897, when it was reversed and remanded (70 Mo. App. 395). On retrial plaintiff again recovered a judgment, from which defendants appealed.
The charging part of the complaint is as follows: “That on the 2d day of September, 1895, in said Yan Burén township, the defendants by their agents and servants while running its engines and cars upon the said railroad did negligently, wantonly, carelessly, run-over, strike, maim and kill, to wit, one cow, of the value of fifty dollars, to plaintiff’s damage in the sum of fifty dollars, for which plaintiff asks judgment and for his costs.” The cow was killed in the town of Ritchie on the line of the St. Louis & San Erancisco Railroad and within [486]*486the switch limits in said town and at a point where the road is not fenced and where the defendants were not required to maintain a fence. The town of Ritchie at the date of the accident had from two hundred and fifty to three hundred inhabitants and was located on the north side of the railroad track, which ran east and west at that point. On the south side of the track was located a mill and elevator. A highway leading from the town to the mill and points south, crossed the track near the station house which was built between the main and switch track. There was but the one public road crossing at Ritchie, and from the evidence it was very much used by teamsters to reach the mill and elevator from the-north and by people traveling south. McDonell Martin, a witness called by the plaintiff, and the only witness who saw and testified to the position of the cow, relative to the track and train just before and at the time of the accident, states,, in substance, that he was walking from the town to the mill, where he worked; that about the time he stepped on the track he heard the engine whistle for the station, looked and saw the train coming from the west over a quarter of a mile away; that a couple of yearlings were on the track; these he drove-off; at the same time he saw plaintiff’s cow feeding along near-the track, “but had no idea that she would go on the track,” and did not drive her away, but when the train got within forty or fifty feet of where she was feeding, she came onto the track, and he tried to drive her off, but found he could not do so without exposing himself to danger; that just as she got on the track the engine whistled to scare her off, but instead of jumping off she turned up the,track and ran east from thirty to-forty feet, where she was caught by the engine and carried some distance and thrown off. Plaintiff testified that he did not see his cow go on the track, but saw her as she ran up the track toward the crossing, and that she was struck and thrown off at the crossing. Other witnesses for plaintiff saw the cow after she was struck by the engine and before she was thrown [487]*487off, all of whom testified that the cow was carried some distance on the pilot of the engine before she was thrown off and killed. The evidence for both parties establishes the fact that the engineer whistled for the station one half a mile •away, and again sounded the whistle just before the cow was struck. The evidence of the engineer and fireman is that the required statutory signals, when approaching a public crossing, were given. The evidence for plaintiff and his witnesses ■on this point was of a negative character, the witnesses stating that if the signals were given, they did not observe them, or had forgotten them. The evidence is that the engineer could have seen the cow from a quarter to a half of mile west of Ritchie, and that the train was running at a speed of from twenty-five to thirty miles per hour, and that it did not stop at Ritchie; that the train was a heavy one and made up of car loads of live stock, and it is conceded that it was physically impossible to have stopped or checked the train and prevented the injury within the distance the cow was of the train when she went onto the track. At the close of all the evidence the defendants moved the court to instruct the jury that under all the evidence the plaintiff could not recover; this instruction was refused. As was said by this court when the case was here on former appeal: “The action is for common law negligence. It'is not brought under the statutes (R. S. 1889, secs. 2611-4428), giving double or single damages for injuries to stock. It is therefore necessary, in order to recover, for plaintiff to show that the actual negligence of the defendant caused the killing of the cow.” To the same effect is Turner v. Railroad, 76 Mo. 261. “The omission to discharge any duty imposed by law upon common carriers, in the management of their vehicles, in transporting persons or property, is evidence of negligence,” says the supreme court; Goodwin v. Railroad, 75 Mo. 73; and “the fact that a railroad company’s trainmen failed to ring a bell or sound the whistle as the train approached the crossing of a public road, may bo given in [488]*488evidence in a common law action against the company for negligently hilling plaintiff’s steer at the crossing, without being especially pleaded.” Braxton v. Railroad, 77 Mo. 455. If, therefore, the plaintiff’s cow was killed at the crossing and neither of the statutory signals were given as the train approached the crossing and the killing resulted from such failure, then there was evidence of negligence, which it was proper to submit to the jury. Alexander v. Railroad, 76 Mo. 494; Holman v. Railroad, 62 Mo. 562; Wallace v. Railroad, 74 Mo. 594. But there is nothing shown in this case, but a possible omission of the duty to give the signals and the injury; this is not sufficient to make out aprima facie case for the plaintiff. Stoneman v. Railroad, 58 Mo. 503; Barr v. Railroad, 30 Mo. App. 248; Alexander v. Railroad, and Homan v. Railroad, supra.
Liability fixed. The evidence is undisputed that the cow did not go on the track at the crossing, and it is clear from all the evidence that she was not on the track at the crossing when she was overtaken and thrown onto the pilot of the engine. She was not at the crossing when the collision of the engine with her occurred; she did not undertake to pass over the track at the crossing; therefore the obligation to give the statutory signals did not apply to her situation. The statute is designed for the protection of persons and domestic animals passing over or about to pass over a public crossing, when trains are approaching, and damages for failure to give the signals are given for injuries resulting therefrom which are inflicted at the crossing, and not damages generally which may accrue to cattle running at large that come upon the track at points other than at public crossings and are injured; the place where the animal got on the track, not where killed fixes the liability. Moore v. Railroad, 81 Mo. 499; Snider v. Railroad, 73 Mo. 465; Fraysher v. Railroad, 66 Mo. App. 573; Ehret v. Railroad, 20 Mo. App. 251; Brassfield v. Patton, 32 Mo. App. 572.
[489]*489The evidence is nncontradicted that it was impossible to bave stopped the train in tiine to bave prevented tbe injury after tbe cow got on tbe track, and to establish actual negligence it must be assumed tbat tbe cow was in a perilous condition before sbe went upon tbe track, and tbat tbe engineer, saw, or by tbe exercise of due care could bave seen, ber peril in time to bave stopped tbe train and avoided the injury; but there is not a ray of proof to support such an assumption. If Miller who stood within twenty feet of tbe cow and saw ber grazing along tbe right of way bad no “idea” tbaf tbe cow would go upon tbe track, until sbe was on it, bow can it be inferred tbat tbe engineer, on a swiftly speeding engine which be was running, with tbe duty to look ahead and to closely observe tbe track to see if it was clear and at a much further distance from tbe cow than Miller, saw, or could by the exercise of ordinary diligence bave seen, a peril tbat Miller from bis more advantageous situation failed to see, or even to perceive sufficient evidences of to arouse bis bare suspicion tbat peril was present.' According to the evidence tbe cow was feeding close to tbe track parallel with tbe track not approaching it; ber situation was not one which would compel ber to come upon tbe track, nor was there anything in ber movements tbat indicated tbat sbe would presently go upon tbe track. In such circumstances tbe engineer was not required to slacken bis speed or to stop bis train to await tbe movements of tbe cow. Young v. Railroad, 79 Mo. 366; Boyd v. Railroad, 105 Mo. 372; Grant v. Railroad, 25 Mo. App. 227; Milburn v. Railroad, 21 Mo. App. 426.
Speed: negligence. It is contended tbat tbe train was run at a reckless or negligent speed. In tbe absence of a statute (and we bave none in this state), regulating tbe speed at which trains may be run, no rate of speed at which they are run is negligence per se. Powell v. Railroad, 76 Mo. 80; Maher v. Railroad, 64 Mo. 267; Morris v. Railroad, 79 Mo. 366. Whether tbe train in this [490]*490instance was run at a reckless or negligent rate of speed, was a question of fact to be made out by tbe evidence and found by tbe jury, but tbe jury were not instructed on this point, and therefore did not pass on it, and tbe question is not in tbe record; but as some point seems to be made of it we will give our views of tbe subject. < There was some evidence, tending in a slight degree, to prove that on account of tbe almost constant use of tbe crossing by tbe public at tbe time of day tbe train passes, tbe rate of speed was negligent and bad the injury occurred at tbe crossing an instruction on this theory might have been proper, but tbe rate of speed under the facts in tbe case was immaterial, for it is well known from observation that a heavyfreigkt train could not be stopped in a space of forty or fifty feet, if running even at a moderate rate of speed, and as we have seen there was no duty on tbe part of tbe engineer to make an effort to stop tbe train until tbe cow was in a condition of peril; this did not occur until she walked on tbe. track, only forty or fifty feet ahead of tbe engine. On no theory of law applicable to tbe facts can the plaintiff recover, and we reverse tbe judgment.
Judge Bond concurs; Judge Biggs dissents.