Brooks v. Union Depot Bridge & Terminal R. Co.

• Decision Date: 29 January 1923
• Docket Number: No. 14572.,14572.
• Citation: 258 S.W. 724,215 Mo. App. 643
• Court: Missouri Court of Appeals
• Parties: BROOKS v. UNION DEPOT BRIDGE & TERMINAL R. CO.

258 S.W. 724

215 Mo. App. 643

BROOKS v. UNION DEPOT BRIDGE & TERMINAL R. CO.

No. 14572.

Kansas City Court of Appeals. Missouri.

January 29, 1923.

Certiorari Denied May 22, 1923.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by S. J. Brooks against the Union Depot Bridge & Terminal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus Crane and Kenneth McC. De Weese, both of Kansas City, for appellant.

Gamble, Trusty & Pew, of Kansas City, for respondent.

ARNOLD, J.

This action for damages for personal injuries has twice been tried in the court below. At the first trial plaintiff had judgment and defendant filed its motion for a new trial, supported by affidavits, which said motion was sustained by the court, upon the following grounds, set forth in writing at the request of plaintiff:

"(1) Because the court erred in not sustaining the demurrer by the defendant offered at the close of plaintiff's testimony.

"(2) Because the court erred in not sustaining the demurrer by defendant offered at the close of all the testimony in the case.

"(3) Because the court erred in giving the jury instruction numbered 1 for and on behalf of plaintiff.

"(4) Because the court is satisfied that mistake has been committed by witness testifying on behalf of the plaintiff with reference to the matter to which reference is made in the affidavits filed in support of defendant's motion for a new trial; and is also satisfied that an improper verdict or finding, and the finding or verdict in this case was occasioned by such matters; and that the defendant has a just defense thereto; to which further findings and assignments by the court the plaintiff at said time excepted and still does except."

Plaintiff then filed a motion to set aside the order and judgment granting a new trial, and upon the denial of same by the court plaintiff perfected his appeal to this court.

Before the case was reached here, plaintiff dismissed his appeal and asked for a setting and trial anew in the circuit court. Defendant objected to the impaneling of the jury at the beginning of the new trial, and also objected to further proceedings therein and to the further introduction of evidence, for the reason that on the record as made plaintiff was not entitled to proceed further, in that the reasons assigned by the court (at the request of plaintiff) for sustaining defendant's motion for a new trial, coupled with the subsequent appeal therefrom by plaintiff, were equivalent to a judgment in defendant's favor, and prevented plaintiff from proceeding further until such judgment was reversed. The objections were overruled and the trial proceeded, resulting in a verdict and judgment for plaintiff. Defendant appeals.

Defendant, a corporation, owned and operated a street car line beginning in the north Dart of Kansas City, Mo., crossing the Missouri River over the Armour-Swift-Burlington Bridge, running north to North Kansas City, in Clay county, Mo., making practically a circle therein, and returning by way of said bridge to Kansas City, Mo.

At the time of the injury in question plaintiff was working as a locomotive engineer for the Chicago, Burlington & Quincy Railroad Company in what is known as its Murray Yards in North Kansas City. In order to reach his place of work, plaintiff used the street, car line above described. On June 9, 1918, he became a passenger on one of defendant's ears in Kansas City, Mo., and was transported thereon to the regular stopping place at the intersection of Fourteenth street and Burlington avenue in North Kansas City. When the car stopped, plaintiff alighted therefrom at the landing provided on the east side of the north-bound track. It was about 10:45 p. m., "daylight saving" time then in use, or 9:45 standard time. Plaintiff attempted to cross the two tracks lying west of him on his way to the Murray Yards, located some distance west of the car tracks, and reached by crossing some intervening fields. At the point where plaintiff alighted, defendant maintains two parallel tracks on Burlington avenue; the west tracks being used for south-bound cars, and the east for those north-bound. At or near the intersection with Fourteenth street, said tracks turn eastward into Fourteenth street.

Plaintiff, in his petition, states that after waiting for the car to pass, from which he had alighted, he attempted to cross the tracks, going in a northwesterly direction toward an "umbrella shanty" maintained by defendant on the west of the tracks near the street intersection, and that while thus proceeding his foot caught at one of the points where the rails of said track running east into Fourteenth street break out of the west or south-bound track; that because of getting his foot so caught he fell, and thereby "the bones, ligaments, muscles, tissues, nerves and vessels of his left ankle and leg in and around the ankle and foot were broken, torn, lacerated and injured," etc.

The evidence tends to show that the switch point, or frog, in which plaintiff's foot is alleged to have been caught, is immovable and unblocked. The testimony further tends to show that at the intersection of the streets above mentioned, the defendant company maintains an electric light on the north side of a trolley pole, for the purpose of furnishing light to its patrons, but that on the occasion in question no light was burning.

The second amended petition on which the case was tried charges that defendant negligently failed (a) to keep said place lighted or to have warning lights or barricades at said place; (b) carelessly and negligently maintained tracks, switches, and frogs in a dangerous and not reasonably safe condition for the use of persons and passengers walking thereover; (c) failed to give plaintiff any warning of danger; (d) failed to block the switch into which plaintiff's foot is alleged to have slipped; and alleges that the acts of negligence, above enumerated, operated concurrently to cause said injuries.

The answer is a general denial and contains pleas of contributory negligence and assumed risk. The reply is a general denial.

The court submitted the case to the jury, over defendant's objections, overruling its request for a peremptory instruction in its favor, and the jury returned a verdict for plaintiff for $3,000. After unsuccessful motions for a new trial and in arrest of judgment, defendant appeals.

It is urged, as grounds for reversal, that—

"The court erred in refusing to sustain defendant's objection to the impaneling of the jury and to further proceedings on the second trial, for the reason that the action of the court in sustaining defendant's motion on the first trial and the reasons given therefor were equivalent to a judgment in defendant's favor, that they made a finding in favor of defendant res adjudicate and prevented further proceedings until such judgment in defendant's favor was reversed on appeal."

Supporting this position, defendant argues that the motion for a new trial was sustained upon points of law, not of fact, arising upon the proof; that it, therefore, disposed of the case on the merits, as fully as a directed verdict would have done, and therefore was a final judgment, binding and conclusive unless reversed on appeal. In this connection, defendant cites Buckles v. Railroad (C. C.) 53 Fed. 566, loc. cit. 567, citing Black on Judgments, vol. 2, § 691:

"`Regard is now had less to the form of the proceeding, and more to the subject and condition of the decision. Further, there is a distinction to be noted between orders made upon motions respecting collateral questions arising in the course of a trial and final orders affecting substantial rights, and from which an appeal lies. The latter...