Dailey v. L. & E. Ry. Co.

• Decision Date: 24 May 1918
• Citation: 180 Ky. 668
• Parties: Dailey v. Lexington & Eastern Railway Company.
• Court: Kentucky Court of Appeals

180 Ky. 668

Dailey v. Lexington & Eastern Railway Company.

Court of Appeals of Kentucky.

Decided May 24, 1918.

Appeal from Fayette Circuit Court.

A. S. MOORE and J. W. RAWLINGS for appellant.

BENJAMIN D. WARFIELD and SAMUEL M. WILSON for appellee.

OPINION OF THE COURT BY JUDGE HURT. — Reversing.

The appellant, Thomas S. Dailey, instituted this action against the appellee, Lexington & Eastern Railway Company, to recover damages for an injury sustained by him, which he claims was caused by the gross negligence of the engineer of one of its trains, while in the operation of the train. At a trial of the action, he recovered a verdict in the sum of five thousand dollars, in damages and a judgment in accordance therewith. The court sustained a motion for a new trial and set aside the verdict and judgment upon the ground that there was not a sufficiency of evidence to sustain the verdict. To this order of the court, granting a new trial, the appellant objected and saved an exception, and, at the same time, procured an order of the court directing the official stenographic reporter to make a transcript of his notes taken in the action and to file same in the office of the clerk of the court after same was certified by the court to be correct. Thereafter, and within sixty days from the time the order granting the new trial was made, he prepared and presented to the court a bill of exceptions embracing the proceedings upon the trial and including the bill of evidence, which was approved and so endorsed by the court and ordered to be made a part of the record. The action coming on again for trial, at the conclusion of the evidence offered by appellant, the court sustained a motion to peremptorily direct the jury to find for the defendant and upon this verdict rendered a judgment directing the petition to be dismissed. In due time, the appellant filed grounds for a new trial, which were overruled, and he then prayed and was granted an appeal to this court. Within due time, he prepared and presented his bill of exceptions covering the proceedings at the last trial, which was approved and filed and made a part of the record. Upon this appeal having brought up a transcript of the entire record, he seeks a reversal of the judgment against him upon the last trial and asks that the order setting aside the first verdict and judgment be reversed and that a judgment be rendered in his favor, in accordance with the first verdict, instead of the latter judgment.

(a) The appellee now moves this court to order the bill of exceptions relating to the first trial to be stricken from the record to be considered upon this appeal, upon the ground, that when the order setting aside the first verdict was made, appellant did not pray nor was he granted an appeal, and did not secure an order to be made, at that time, granting him time, within which to prepare and present a bill of exceptions, and has not, in this court, secured an appeal from the order setting aside the verdict at the first trial, and did not in the circuit court, when he moved the court to grant him a new trial, after the last judgment, accompanying it with a motion to substitute the first judgment for the latter one.

(1) It is plain, however, that an appeal can not be taken from an order in a common law action, granting a new trial. It is not a final order in the action, which either determines the rights of the parties, or, touching the cause of action stated in the pleadings, grants or denies any relief. It is a well settled rule, that an appeal can be prosecuted, only, from a final order or judgment upon the merits of the case or the rights of the parties. Kentucky Statutes, section 950, subsection I, authorizes appeals to this court from final orders or judgments, only, of inferior courts. Perkins v. Ogilvie, 148 Ky. 309; Rodes v. Yates, etc., 151 Ky. 162; Maxwell v. England, 115 Ky. 783; Trade Discount Co. v. Cox, 143 Ky. 516; Harrison v. Stroud; 150 Ky. 797; Com. v. L. & N. R. R. Co., 16 R. 484; Ferguson v. Matson, 20 R. 1702. So, all the appellant could do, when the order granting the new trial and setting aside the verdict and judgment on the first trial was made, was to object to the order, save an exception and prepare a bill of exceptions, so that upon a final review of the case it could be determined, whether the trial court erred in setting aside the verdict and judgment. The order granting the new trial was only one of the steps taken in the prosecution of the action to its final determination, and is subject to review by this court upon appeal from the final judgment, if a bill of exceptions has been made of the proceedings upon the first trial, so as to enable this court to determine whether the order granting the new trial should have been made.

(2) The court in which this action was pending, was a court of continuous session and one which has the same power over its judgments for sixty days after their rendition as circuit courts, which have stated terms, have over their judgments during the term. Section 1016, Kentucky Statutes, prescribes the time within which a bill of exceptions must be prepared and presented for approval in courts of continuous session. It provides, that bills of exceptions must be prepared and presented within sixty days after the making of the order excepted to, but that the exceptions taken during the trial need not be noted of record nor reduced to writing, unless by order of the court, until after the trial, and that, within sixty days after the judgment becomes final, the party excepting shall, unless further time be given him, present his bill of exceptions, but, further time may be given to prepare a bill of exceptions, but not beyond one hundred and twenty days after the judgment becomes final. It will be observed, that this statute does not make any provision for obtaining an order granting time within which to present the bill of exceptions, except when a greater time than sixty days is sought to be had after the order granting or refusing a new trial. The sixty days time is given by the statute within which to present a bill of exceptions and it has been held that the court is without power to restrict the party by an order to less time than sixty days. Connelly v. Adams, 19 R. 1084.

So, it seems, that a party does not have to ask any time within which to present his bill of exceptions, if he desires to do so, within the sixty days prescribed by the statute.

(3) The contention that this court can not review the action of the trial court in granting the motion for a new trial, because no motion was made in the lower court to substitute the judgment upon the first trial for the judgment upon the last, is equally untenable. When the last judgment was rendered, it was at a time, which was more than sixty days after the order granting the new trial was made, following the first trial, and the circuit court would have been without power to have then set aside its order granting the new trial. Such a motion would then have been vain and could not avail any purpose. For the reasons heretofore stated, it was not necessary upon this appeal to have prayed an appeal from the order granting the new trial, following the first trial, as it was not an order from which an appeal could be prosecuted, and for the further reason that being a mere step in the course of the action to its final determination, the appeal from the final judgment brings up for review all of the alleged errors pending the action. Ross v. Kohler, 163 Ky. 583; Smith's Admr. v. Louisville Ry. Co., 174 Ky. 784; Perkins v. Ogilvie, 148 Ky. 309; Richards v. L. & N. R. R. Co., 20 R. 478. The motion of appellee is therefore overruled.

(b) This makes necessary to determine whether the court abused its discretion and was in error in setting aside the verdict and judgment upon the first trial. The facts, upon which the action was based, are, that the appellant was a brakeman in the employ of the appellee in the operation of its freight train from Jackson to Lexington, but, at the time of receiving the injury complained of, he was engaged, with the other members of the train crew, in switching certain cars in the yards of the company at Lexington. On the day of the injury appellant came with a freight train from Jackson to Lexington. The crew consisted of Kinniard, the engineer; Thomas, the fireman; Higgason, a brakeman; Chandler, the conductor, and the appellant in his capacity as brakeman. The train arrived at Lexington about two o'clock in the afternoon and after it was put away in the yards, the crew were set to work switching cars and changing box cars from one side track to another in the yards. Leading off from the main track was a side track called No. 14, and leading off from No. 14 were various other spurs used as side tracks, among which were Nos. 8, 7, 6 and others. The conductor, Chandler, directed the appellant to take the crew and to remove thirteen or fourteen box cars from track No. 7 and to attach to them a box car on track No. 8, and then to shove the entire number of box cars into track No. 7. The appellant, as brakeman, opened the switch into track No. 7 and the engine was let into that track and coupled to the several box cars there and pulled them out on to the main track and the main lead track No. 14, when the appellant went to and opened the switch and signaled the engine to push the cars into track No. 8, which, when done, the car, desired there, was coupled to the others and the entire number of cars were then pulled out on to the main switch and proceeded past the switch stand at No. 7 track, until the last car was past that switch stand at a distance of two or three car lengths. The appellant then opened the switch at track No. 7. The cars were attached to the front end of the engine, instead of its rear, which set the faces of the engineer and fireman toward the rear end of the train. The engineer was upon the opposite side of the...