Coatney v. St. Louis & S. F. Ry. Co.

• Decision Date: 19 June 1899
• Citation: 151 Mo. 35,51 S.W. 1036
• Parties: COATNEY v. ST. LOUIS & S. F. RY. CO.
• Court: Missouri Supreme Court

51 S.W. 1036

151 Mo. 35

COATNEY v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri.

June 19, 1899.

APPEALABLE ORDERS — SETTING ASIDE A NONSUIT — RAILROADS — KILLING PERSONS ON BRIDGE.

1. An order setting aside a nonsuit is appealable under Rev. St. 1889, § 2246, authorizing an appeal from "an order granting a new trial," under section 2130, defining a "trial" as "a judicial examination of the issues between the parties, whether they be issues of law or fact."

2. A man, partly intoxicated, attempted to cross a railroad bridge which foot passengers had been using for many years. It was misty and dark, and the track curved, so that a headlight of an approaching locomotive would not throw light on the bridge until the train had nearly reached it. A train crossed the bridge, after giving the proper signals of its approach, and struck the man, and killed him. Held, in an action by the man's wife, that a demurrer to the evidence should be sustained, as no negligence of the railroad company was shown.

Gantt, C. J., and Burgess, J., dissenting.

In banc. Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Action by Martha A. Coatney against the St. Louis & San Francisco Railway Company. From an order setting aside a nonsuit, defendant appeals. Reversed.

L. F. Parker and J. T. Woodruff, for appellant. Cloud & Davis, for respondent.

BRACE, J.

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 by 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 (Sess. Acts, p. 70), section 2246, Rev. St. 1889, providing for an appeal only in cases 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 an appeal to the court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause. * * *" In Ready v. Smith, 141 Mo. 305, 42 S. W. 727, 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 v. Missouri Pac. Ry. Co., 50 S. W. 278, 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 1891 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. Railway Co., 123 Mo. 157, and 27 S. W. 613, 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 statute of 1891. Applying the reasoning of that case, it is obvious, we think, that as an order setting aside a nonsuit is not final, and, as the statute has not made it appealable in terms, it must be held that an appeal cannot be prosecuted therefrom, and the appeal in this case must be and is dismissed." This was all that was said on the question now at issue, and the reasoning falls far short of covering that issue. It may be conceded that an appeal would not lie under the general clause, and that one of the purposes of the law was "to allow an appeal from certain orders which, up to that time, had been held to be merely interlocutory, and not final." But this was not, by any means, the whole scope of that legislation; for, in addition, it expressly provided for an appeal "from an order granting a new trial," and "from any special order after final judgment in the cause," — the bearing of which upon the question seems not to have been considered in that case. Now, an order setting aside a nonsuit is an order after judgment, and is therefore not "an interlocutory order." Its effect and purpose is to set aside a judgment that would otherwise be final in that case, and to grant a new trial thereof. Therefore it is an "order granting a new trial." So that, with these unquestionable characteristics of an order setting aside an involuntary nonsuit staring us in the face, when the subsequent case of State v. Missouri Pac. Ry. Co. came on for determination in division No. 1 we held: "The right of appeal from an order sustaining a motion for a new trial was given by an act of the general assembly approved April 18, 1891. In that act no mention is made, by that name, of an order sustaining a motion to set aside an involuntary nonsuit, but such an order is necessarily comprehended in the words `order granting a new trial.' The proceeding which results in a ruling that enforces a nonsuit is as much a trial as the proceeding which results in a verdict, and the judgment which follows an involuntary nonsuit is as final a disposal of the case in which it is rendered as is the judgment that follows a verdict in such case. The effect of the judgment on the cause of action involved is not the same in both cases, — the cause of action being extinguished in the judgment on a verdict, but surviving the judgment on the nonsuit; but, so far as the suit itself is concerned, it is as completely ended in the one case as the other. What is a `trial'? Our statute answers the question. Section 2130, Rev. St. 1889: `A trial is the judicial examination of the issues between the parties, whether they be issues of law or fact.' The proceeding in this case, then, amounted to a trial, although it culminated on an issue of law, and the effect of sustaining the motion to set aside the nonsuit is nothing more than granting a new trial of that issue. Defendant, therefore, had a right to this appeal." 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 (Bank v. Gray, 146 Mo. 568, 48 S. W. 447; McClure v. Campbell [Mo.] 49 S. W. 881), 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 cannot 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 v. Missouri Pac. Ry. Co. 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 5th 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 of 30 miles per hour, without sounding 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...