151 Mo. 35 | Mo. | 1899
This is an action brought by the plaintiff, the widow of James Coatney, deceased, to recover $5,000 •damages for the death of her husband, which she alleges, in her petition, was caused by the negligence of the defendant, ■On the trial, at the close of plaintiff’s evidence, the court instructed the jury that under the pleadings and evidence the plaintiff was not entitled to recover. Thereupon the plaintiff took a nonsuit with leave; and judgment was rendered in favor of the defendant for costs. In due time plaintiff filed her motion to set aside the nonsuit, on the • ground that the court ■erred in sustaining the defendant’s demurrer to plaintiff’s •evidence, which motion coming on to be heard was by the ■court sustained, the nonsuit set aside and “plaintiff granted a new trial” to which action of the court the defendant excepted •and appealed.
In due course, the case reached this court, and was assigned to Division No. 2, where the plaintiff filed her motion •to dismiss the appeal, on the ground “that there is no judgment from which an appeal will lie.” Whereupon the case was transferred to the Court in Banc for determination, b}’ Division No. 2 on its own motion. ■ On the hearing in banc •the motion to dismiss was taken with the case, and presents the first question to be determined.
(1) By an Act of the General Assembly approved April 18, 1891 (Laws 1891, p. 70), section 2216 of the Revised Statutes of 1889, providing for an appeal only in eases •of “final judgment or decision,” was repealed, and a new section enacted in lieu thereof, providing that “any party to •a suit aggrieved by any judgment of any circuit court, in ■any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to the court having appellate jurisdiction from any order granting a new trial, or in
In Ready v. Smith, 141 Mo. 305, a case coming under the operation of this law, and decided in Division No. 2 on the 9th of November, 1897, it was held that an appeal does not lie from an order setting aside a nonsuit, and reinstating the case, while in the subsequent case of State ex rel. Cass County v. Railroad, 149 Mo. 104, a like case also governed by this law,, decided by Division No. 1, February 15, 1899, it was held, without mention of the former case, that an appeal does lie-from an order setting aside a nonsuit and granting a new trial. It was in view of, and to remove the conflict between these cases, that this case was transferred, to the Court in Banc.
The law of 189,1 was set out in the opinion in Ready v. Smith, but most of the opinion was devoted to the discussion and decision of the question whether or not an appeal would lie under that provision of the law giving an appeal from “any final judgment.” The question as to whether an appeal would lie under any other provision of the law was disposed of summarily in the following language: “It will be noted that an order or judgment setting aside a nonsuit is not enumerated in the statute as an order from which an appeal may be taken. If permitted, then it must be under the general clause allowing an appeal from “any final judgment.” .... The act of 1891 was before this Court in Banc for interpretation in Greeley v. Railroad, 123 Mo. 157, and it was pointed out that it was the purpose to allow appeals from certain orders which up to that time had been held to be merely interlocutory and not final in their nature, and the appeal in that case was dismissed because an order appointing a receiver was not mentioned among those orders mentioned by the
When it is considered in connection with this reasoning, that the very essence of an involuntary nonsuit is, that it be the product of adverse rulings which cover the case and preclude a recovery as has frequently been decided [Green County Bank v. Gray, 146 Mo. 568 ; McClure v. Campbell, 148 Mo. 96], it becomes so palpably evident that a judgment on such a nonsuit is the consummation of a trial of the case, and that the setting aside of that judgment and granting another trial upon the issues' thereof is “granting a new trial” within the meaning of the statute, that we can not hesitate to give our assent to the conclusion reached. Hence the decision in Ready v. Smith on this subject will be overruled, and the ruling in State ex rel. v. Railroad, followed; and the motion to dismiss the appeal in this case will be denied. *
(2) Plaintiff’s cause of action as stated in the petition is as follows:
“That near said city of Granby there is on said railroad a bridge spanning a stream which the defendant has permitted the public to use as a footway crossing for over twenty years continuously and undisputedly, and as such had become a public traveled crossing of said railroad. That on the 5 th*41 day of October, 1890, the plaintiff’s husband, James Coatney, was, at a time when no regular trains were crossing said bridge, lawfully crossing the same, using all the care possible under the circumstances, when a special train of cars drawn by a locomotive carelessly and negligently approached said bridge and crossing from the west, when said Coatney was midway on said bridge and crossing, at the unusual speed on 80 miles per hour, without sounding the whistle or ringing the bell on said locomotive at a distance of 80 rods or any other distance from said crossing, or another crossing 100 yards west thereof, and, without checking or attempting to check the speed of said train, although said James Coatney was in plain view of said employees and agents of defendant in charge of said train for the distance of 80 rods, then and there carelessly and negligently struck and killed the said James Coatney, who was at the time making every effort in his power to get out of the way of said train.”
The answer of defendant was a general denial and a plea of contributory negligence.
As the only ground for setting aside the nonsuit was the alleged error of the court in sustaining the demurrer to the evidence, it is perhaps as well to let the evidence speak for itself. As furnished in the abstract of the appellant of which no complaint is made, it is as follows:
T. J. Reynolds testified that he resided in Granby in October, 1890, and knew James Coatney, and had known him eight or ten years; saw Coatney on Sunday, October'5, 1890, and went fishing with him and Will Broen on that day. “We started between 1 and 2 o’clock, and went down on the south side of the creek; crossed the second bridge and came back to the Skinner Lake, and had our net in, I believe, twice before we crossed the bridge and came back to the lake and lost Coatney there, some way, I can’t tell how; we went to a spring there is up there and waited for a while and he never come. Will Broen was with me, and went back to look for
On' cross-examination the witness testified that he, Broen and Coatney met that afternoon and decided to go fishing. Coatney had a pint of alcohol, Broen had half a pint and witness had the seine. Had seen Coatney take a drink in the morning and at the time they started could tell that he had been drinking some. They started out and went down on the south side of Shoal Creek to the second bridge. There they crawled through the barbed wire fence and got on the railroad track, went along the railroad to the second bridge
Will Broen testified that he knew Coatney in his lifetime; that Coatney was a miner and witness worked with him; that on the day in question he, Eeynolds and Coatney went fishing. On reaching Shoal Creek they fished a little, went down the creek, crawled through the railroad fence, got ou the railroad, walked across the second bridge and started home by way of Granby City, taking the railroad east by way of the first bridge. They left Coatney on the railroad between the two bridges. “He was following along behind. I told him to come on, that he would get wet if he did not come on. It was kind of misting rain and he did not come. He was walking along and says, T am coming.’ ” On reaching a spring half way between the bridges they missed Coatney, and witness went back to a point where he could see to the second bridge, to look for him, but could not find him, and he and Eeynolds then went on to Granby. That he had used the bridge to cross Shoal Creek five or six years; that they took a pint and a half of alcohol with them that afternoon, and drank it, taking the last drink at Skinner Lake. “Do not know how many drinks I took on that drunk. I had so many it was too hard to count them.” That Coatney kept the pint bottle and it had about a half pint in it.
Anton Stanka testified, that he was in Granby City on the day Coatney was killed; that the regular passenger train due there at 5:56, was late and he waited until after 6 o’clock and started home before its arrival, going down the railroad by way of the first bridge; that there is an approach to the bridge from the east of a trestle about ten or twelve feet high, which is about 200 feet long; that the bridge proper is about 100 feet long. After he crossed the bridge and got away from the railroad about one and a fourth miles he heard the
On cross-examination witness testified: “The track commences to curve to the south about two rails west of the-bridge, and then curves to the north, and an engine approaching it from the west would get within sixty feet before-it struck the straight track, until it did come within sixty feet of the bridge the train would be on a curve, and the headlight would not shine around the curve, but would throw the light straight ahead.
Joseph Zehr testified that on the day Coatney was killed' at the bridge, he lived in Granby City, which is a way station on the Erisco railroad, consisting of a depot, section houses, a mill and another house or to, the town of Granby being about a mile south of Granby City. The distance from the bridge to the depot is about twelve telegraph poles, and from the depot to witness’s house is about five telegraph poles. These poles are 180 feet apart. "Was in the house and heard' the train about three miles west of the bridge where Coatney was killed. “I heard it give three whistles for the crossing.
On cross-examination witness testified: “It was dark when I saw the object. Didn’t know whether it was killed or not. Didn’t go to see until I heard of the accident. I was at the house three hundred yards from the bridge. There were some trees between the house and bridge near the trestle a little to the north. The bridge has upright iron sides and iron •over the top. Do not know that a headlight would throw shadows on bridge in the direction train was coming. Thought it was a man but did not go down to see. An inquest was held that night.” Witness knew the purpose was to find out how deceased came to his death. Was present. Did not tell the coroner or any other person about what he had seen. “It was not my business to tell them until I was called on to do so.”
On cross-examination the witness said “my brother Joe did not say anything about having seen the object while at the-house that evening, nor on the way down there after we heard Coatney was killed.”
Wm. Lambert testified that he is a brother of plaintiff and lived in Granby at the time Coatney was killed. Saw him in the morning of that day and he was perfectly sober. Saw him on the bridge that night after he was killed. The-lower part of the body was on the inside of the rail and his-head and shoulders on the outside of the south rail. Everybody used the bridge that went across there. Could safely say that he had seen the bridge used by people crossing hundreds of times.
J. T. Martin testified: Had seen persons cross bridge-ever since it was built. Did not think one could see straight through from the public road. Might a little past the road.
S. O. Hart, justice of the peace, testified that he acted as coroner and held the inquest over Coatney’s body. At the place of the accident found hundreds of pieces of flesh and bones scattered on the trestle of the bridge. Had seen people cross there frequently. The road begins to curve to the south at the west end of the bridge and after one gets out several, hundred feet can not see through the bridge. The railroad fence begins on each side of the track right up to the west end of the bridge.
J. M. Lambert testified that the plaintiff, Mrs. Coatney, was his daughter. That he saw Coatney on the morning of the day he was killed before he started out fishing. “I supposed he had. been taking a little to drink but he talked with all his wits. He talked as well as he ever did in his life and walked straight.”
"We have carefully scanned this testimony but have failed to find in it any evidence tending to prove that the servants of the defendants were guilty of any negligence contributing to the death of the plaintiff’s husband. We do find in it abundant evidence that the proximate cause of his •death was his own negligence, superinduced by an intoxicated condition willfully brought on himself, and we do not find any evidence tending to prove that the defendant’s servants willfully, wantonly or recklessly ran him down and killed him, when by the exercise of proper care, they might have ■avoided it. Consequently, we find no ground therein upon' which a recovery by the plaintiff could be predicated. Counsel for plaintiff has furnished us no brief showing any such ground and as the evidence may well speak for itself, and a ■discussion of it in the light of settled, principles and adjudicated cases would be not only a thrashing of old straw and as ■the exercise itself, would consist merely in setting up men of
The court erred in setting aside the judgment on the nonsuit and in granting the plaintiff a new trial and its order to that effect will be reversed and the cause remanded with direction to -set the same aside.