This action was begun in a justice’s-court, and tried on appeal in the circuit court, where-plaintiff had judgment, from which defendant prosecutes this appeal.
The statement contained two counts. The first alleged that defendant is a corporation, etc., and that while-running one of its trains of cars through the city of Carthage, in Marion township, Jasper county, it negligently failed to ring the bell, placed on its locomotive engine, at a distance of eighty rods from where it crossed Third street, a publicly traveled street of said city, whereby it-ran down and killed plaintiff ’ s cow at said street crossing.
The second count was based on the negligence of defendant’s agents and servants in running and managing said train of cars, whereby plaintiff’scow was negligently killed, etc.
I. The principal contention of appellant is that the-first count does not state facts sufficient to constitute a cause of action, in that it does not allege that defendant also failed and neglected to sound the steam whistle attached to said locomotive. At the hearing we were of the ©pinion that this objection was well taken, owing to the fact that it was not observed that the injury in question occurred at a street crossing, within the limits of a city. Section 1, page 79, Laws of Missouri, 1881, provides that: “A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the-place where the railroad shall cross any traveled public-road or street, and be kept ringing, etc., or a steam whistle shall be attached to such engine, and be sounded at-*604least eighty rods from the place where the railroad shall moss any such road or street, except in cities, ’ ’ etc.
From this it is plain that the statute does not impose the alternative duty on railroads to sound the bell or ■whistle at street crossings in cities. They are only required to ring the bell. So when the statement alleged the failure to ring the bell it presented a statutory ground •of negligence; and when it made pro.of of this omission it made out a primeo facie case. This presumption defendant was then at liberty to rebut by showing that the failure to ring the bell was not the cause of such injury. 'Statute, supra. ' While we are not prepared to say, as it is not necessary to the determination of this appeal, that proof of sounding the whistle could be regarded, as a matter of law, as a substitute for the ringing of the bell, it may be conceded that evidence of the sounding of the whistle is a fact which should go to the jury to show that the omission to ring the bell probably did not occasion the injury.
The defendant is in no position to .complain in this case, for the court, of its own motion, instructed the jury that if the bell was not so wrung, yet, if they found from the evidence that the whistle was sounded, the plaintiff could not recover on account of the failure to ring the bell.
In this view there was no such conflict in the instructions as was in any degree calculated to mislead the jury to defendant’s prejudice. It, perhaps, got a more favorable submission than the law warranted, but of this it •cannot complain. Crews v. K. C., St. Joe., etc., Ry. Co., 19 Mo. App. 302.
The judgment of the circuit court is affirmed. All -concur.