Williams v. Atchison, T. & S. F. Ry. Co.

Decision Date31 March 1911
Citation233 Mo. 666,136 S.W. 304
PartiesWILLIAMS v. ATCHISON, T. & S. F. RY. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Anna High Williams against the Atchison, Topeka & Santa Fé Railway

Company. From an order granting a new trial after verdict for plaintiff, she appeals. Affirmed.

A. F. Smith, Boyle & Howell, and Guthrie, Gamble & Street, for appellant. Thos. R. Morrow, Cyrus Crane, James P. Gilmore, S. W. Sawyer, and Jno. H. Lathrop, for respondent.

GRAVES, P. J.

Plaintiff is the widow of Ellis T. High, and as such, in the name of Anna High, brought suit against defendant in the circuit court of Jackson county for the alleged negligent killing of her husband, the said Ellis T. High. After the institution of the suit, she intermarried with one Williams, and took the necessary steps to further prosecute the suit in the name she thus assumed by the intermarriage.

By her petition, she charges that the death of her said husband was occasioned by reason of the fact that defendant had negligently constructed an unloading platform too close to the track upon which the freight cars were switched to be unloaded. The petition is long, but the alleged negligence of defendant can be gathered from the following language contained therein: "That said platform and the said arrangements in and around such railroad yard and freight house were so located, placed, and arranged as to endanger the safety of employés in this, that said platform was as aforesaid so located and placed, with reference to said track and cars operated thereon, as to leave only about eight inches of space between said platform and the corners and sides of said cars; whereas said platform should have been so located, placed, and arranged in order to insure so far as possible the safety of employés from injury or accident as to leave between said platform and said cars a space sufficient for the safe passage of employés between the edge of said platform and such cars, when such platform was necessary for the safety of employés in the performance of their duties as was at times necessary, and as was at the time and place of the injury aforesaid; that there were no conditions preventing the location of said platform so as to be at such sufficient distance from such cars, and it was practicable to so place, arrange, and locate said platform; and such platform was so placed, arranged, and located, as same in fact was, only for the convenience of the defendant in loading and unloading freight at said platform; that such negligent failure of the defendant to properly arrange, place, and locate such platform directly contributed to cause the death of said High."

The amount sought to be recovered was $5,000.

Defendant's answer is (1) a general denial; (2) a plea of contributory negligence; (3) a plea of assumption of risks; and (4) a plea charging that the cause of action, if any, had vested in two minor children of the deceased by a former wife. Reply was a general denial.

The trial nisi resulted in a verdict, by the concurrence of 10 jurors, for plaintiff in the sum of $3,000. Defendant thereupon filed its motion for new trial and in arrest of judgment. The court sustained such motion for new trial for the reason, as assigned, that plaintiff was not entitled to recover. From this order sustaining the motion for new trial, plaintiff has appealed. The evidence, so far as required, will be detailed and reviewed in connection with the points made.

1. At first impression we were doubtful as to the jurisdiction of this court. Upon no theory does the "amount in dispute" give us jurisdiction. The petition and the amount claimed therein, if such were to govern, would not give us jurisdiction under the act of 1909, increasing the jurisdiction of the Courts of Appeals. In this case and the facts thereof the amount in dispute, as contemplated by the Constitution, is the amount of the verdict which was set aside by the trial court. Even in cases where the amount claimed by plaintiff in the petition is such as to confer jurisdiction upon this court when plaintiff has been defeated in the action below, yet, if plaintiff recovers below an amount less than the jurisdictional limit for an appeal to this court, and the verdict for such amount is set aside on the motion of defendant, the appeal must be taken to the Court of Appeals having territorial jurisdiction of the cause, and not to this court. In other words, the amount of the verdict set aside fixes the jurisdiction.

In Culbertson v. Young, 156 Mo. 261, 56 S. W. 893, this court said: "This court has no jurisdiction of this appeal. The utmost that is involved in this appeal is the amount of the verdict rendered in the circuit court. Appellant in his brief asks `that the judgment of the circuit court in setting aside the verdict of the jury and granting a new trial be reversed, and the cause remanded, with directions to enter up a judgment on the verdict.' Plaintiff sought no new trial in the circuit court, and his claim for the original amount sued for is not here at this time. He seeks only to have a judgment entered on his verdict for $783.25. If he should succeed, that would end the case. The propriety of setting aside that verdict is the only matter involved in this his special appeal, and this court has no jurisdiction, as it is less than $2,500. On the other hand if the circuit court did not err in granting the new trial, no final judgment has been rendered in that court from which an appeal can be taken. Roselle v. Farmers' Bank, 119 Mo. 84 , is not authority for the claim that this court has jurisdiction. This cause is ordered retransferred to the Kansas City Court of Appeals." In that case the amount sued for was $7,180, of which sum we then had jurisdiction. The verdict was for only $783.25, which verdict was set aside upon motion of the defendant. Appeal was granted to the Kansas City Court of Appeals, but that court transferred it to this court. Our conclusions are indicated by the quotation, supra.

So that in the case at bar, even without the aid of the act of 1907, we would have to hold that, so far as the amount in dispute is concerned, this court would be without jurisdiction. Our jurisdiction, however, hinges upon a constitutional question lodged for the first time in the motion for new trial. We were first impressed with the idea that the question was not timely raised, but upon a more thorough reading of the petition, and the instructions given, we are satisfied that the point as to the...

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    ... ... and which are entirely outside of the title thereof. Sec. 28, ... art. 4, Mo. Constitution; Williams v. Railroad, 233 ... Mo. 666; State v. Burgdoerfer, 107 Mo. 30; State ... v. Great Western Coffee & Tea Co., 171 Mo. 643; ... Kansas City v ... ...
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