180 Mo. App. 185 | Mo. Ct. App. | 1914
-Between three and four o’clock in the morning of November 27,1910, Thomas Pankey, the head brakeman on one of defendant’s freight trains engaged in interstate commerce, was killed at Floyd, Missouri, by being crushed between a car and the freight platform of the depot.
This suit was brought in the circuit court of Chariton county, Missouri, under the Federal Employer’s Liability Act, by his administratrix, Pinkie Pankey, for the benefit of herself as his widow and his one child, Mary L. Pankey, an infant three weeks old at the time of the father’s death.
Defendant is a Kansas corporation, and plaintiff a resident of Linn county, Missouri. A petition and bond for removal to the Federal court were filed by defendant in due form' and time, but the trial court refused to order the case removed. A trial was there
One of the points contended for is that the cause was removable. If so, then the only tribunal with authority and jurisdiction to try the case is the Federal court. For this reason the question of. removability should be passed on at the outset, because, if the case is removable, the state court has no power to proceed further save to order the removal.
Owing to the diverse citizenship of the parties, the right of removal would ordinarily exist, but this suit, as above stated, is based on the Federal Employer’s Liability Act (Act of Congress approved April 22, 1908, 35 U. S. Statutes at Large 65, chapter 149) as amended by Act of Congress approved April 5, 1910 (36 U. S. Statutes at Large 291, chap. 143). As amended, section 6 of said act provides that “The jurisdiction of the courts of the United States .under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.” Defendant is not unmindful of this provision of the act, but the point is made that this provision does not forbid the removal of the case where the requisite diversity of citizenship exists to give such right, or where the right of removal exists by virtue of some other law. It is urged that the above quoted portion of the act was only intended to deprive the litigant of the right to remove his case where th¿ sole ground for removal was the fact that the cause of action arose under the Employer’s Liability Act, a Federal Law; and that where the right of removal was not based simply on that fact but was a right enjoyed by the litigant independent of that act, then his independent right of removal was not affected. Such was the construction placed upon the act in Van Brimmer v. Railroad, 190 Fed. 394. But in Teel v. Railroad, 204 Fed. 918, it is
The train on which Pankey was employed as head brakeman was an extra freight which started from a point in Kansas and ran east on its way to Marceline, Missouri. It reached Floyd, in Missouri, sometime between three and four o ’clock in the morning where the train stopped to pick up some freight cars standing on the house track. The main track at this point runs east and west. The depot is on the north side of the main track, and the house track lies north of and adjoining the depot and its platform. The house track leaves the main track at a switch 491 feet east of the depot and runs back west in a reverse curve as it approaches the depot. That is, as the house track leaves the main track it curves out to the north from the main track until it is in a position where, it can and does turn due west, parallel to the main track, and passes close alongside the platform on the north side of the depot. The platform between the depot and the main line and on the east end of the depot is gravel and is about the same height as the rails. But on the north side of the depot at a point a few feet west of the east end thereof, the platform is constructed of wood and, on an incline, rises a few feet until it is about level with the bottom of an ordinary box car and continues on this level to the west end of said platform
A few of the cars to be picked up were standing on the house track near the west end of the depot, the 'east end of the easternmost car being alongside the high platform above described and a few feet east of the west end thereof.
When the train on which Pankey was working arrived at Floyd, he had the list of cars to be picked up and knew their location. He had done about a month’s work all told on this particular run in which the crew were expected to take a train over the road once a day. As head brakeman it was his duty to do the switching about the different stations. The evidence did not show how many times he had switched cars at this particular station, but ordinarily they switched cars there every day or two and whenever, during the time he worked on this run, any switching was done there, Pankey assisted in doing it. He had been employed by defendant as a head brakeman for about nine months. The various movements he made about the yard that night, up to the moment he was killed show that he knew the location of the switch, the cars, the house track and the general surroundings of the yard.
The train stopped on the main track and, upon orders from .the conductor, Pankey cut the engine and
The first charge is that defendant negligently maintained the platform so near the side track as to endanger employees engaged in the discharge of their duties thereabouts. The platform and track were both in good condition. The platform was of standard construction, that is, it was the same height from the top of the rail and the same distance from the nearest rail as all other freight platforms on the defendant’s line of .railway and which were built upon the entire Santa Fe system for the last fifteen years. It was constructed at practically the same height and distance from the track as similar freight platforms are constructed on the M. K. & T., the Frisco, the Union Pacific, The Wabash, and Burlington railroads. The platforms on these roads varied perhaps a few inches in height and distance, but all for each particular road were of a standard, that is, uniform construction, and this particular platform was of the same height and distance as all other freight platforms on the Santa Fe.
It was undisputed that no platforms on defendant’s railway were sufficiently far away from the track to permit an employee to be between them and a moving car. There was no evidence that any employees were ever required to go, or that ever went, between such platforms and moving cars in the performance of their duties in the handling of trains and cars. On the contrary, the evidence was that they were not required to and did not do so. All of the platforms were built too close to the track to allow a person to be safely between any of them and a passing car. None of them would be safe for anybody to go there. And the evidence was that on none of the railroads is it safe for an operator of a train to go between the train and the platforms. Under this state of facts it is not perceived in
“The difficult question here is whether the plaintiff was in the line of his duty when he took this position on the outside of the cab and tender for the purpose of tightening the nut. It is common information that brakemen climb up or down the ladders often placed on the outside of cars, and this too, while the cars are in motion. The evidence as to what engineers do or are expected ,to do in this respect is meager, it must be conceded. The evidence shows that engines have running boards, but a person on these boards would be inside of the outer line of the cars, and it seems the engine cabs are a little narrower than the coaches. Such evidence does not show that plaintiff was expected to stand on the outside steps of the ten*197 der when in motion. But his evidence is to the further effect that it was no unusual thing for engineers to do just what he did in this instance. The evidence of other engineers is to the effect that they would and do tighten nuts which are within their reach, and this, too, while the train is moving. We think there is evidence from which the jury could find that the plaintiff was within the line of his duty when he placed himself on the outside of the tender. And in our opinion the inference may be fairly drawn from the evidence that this accident was one which a prudent person engaged in a like business would have guarded against in building the fence, and it follows that the question of negligence on the part of the defendant was properly submitted to the jury. ’ ’
In Charlton v. Railway, 200 Mo. l. c. 437, the court speaks of the unusual attitude assumed by the plaintiff in the Murphy case, hut says it was in the line of his duty under the circumstances, and then calls attention to the fact that in the Charlton case Charlton was in no unusual attitude hut strictly where his duties called him. This requirement that the employee must be where he ought reasonably to be expected to go in the performance of his duties is necessary because if the injury arises out of the fact that the employee was in an unusual place, or where it would not be anticipated that he would put himself in the exercise of ordinary care, then the cause of the injury is his own negligence and not that of the master in erecting the structure.. Now, in this case, plaintiff was not hurt while attending to his duties in the place where he was reasonably expected to go, but in a place where he knew he could not go with safety. He had worked for the road nine months. All platforms were too close to permit any one to go between them and the cars. If deceased, while in his proper place and engaged in switching cars, had ben struck by this platform a different question would be presented. But that is not the case here.
In the case of George v. Railroad, 225 Mo. 364, cited by plaintiff the employee was not only where he should have been, but there was a rule requiring all buildings to be at least six feet from the track, and the building in question was only four feet. The employee had a right to assume that this building was also the proper distance therefrom.
In the case of Hemmingsen v. Railroad, 114 N. W. 785, the platform was of irregular shape, some portions of it being much farther away than others, varying from 11 inches to 2 feet or more, and the employee took up his position by the platform not realizing how close the car came to it at that point. That case was
The next charge of negligence is that the engineer should have stopped when Pankey, in moving from the main line over to the house track, passed out of the line of his vision. There was no rule to that effect shown. Nor was any'practice or custom requiring the engineer to stop, when the light disappeared from a known cause, shown to be in existence on the Santa Fe. While it was shown that the same signals were in use on all the roads, yet the testimony all showed that each road had its own rules governing the management of trains and what to do under a given set of circumstances. The witnesses for plaintiff who testified that the engineer should have stopped when Pankey passed out of the line of the engineer’s vision, were not able to state and did not know whether such was the rule and custom in forc.e on the Santa Pe. And all of defendant’s evidence was that such was not the rule nor custom when the reason for the light being no longer seen was known and understood. To make a custom effective it must be shown to have been general, uniform, certain and notorious, known to the parties or so general and universal in its character that knowledge must be presumed. [Shields v. Railway, 87 Mo. App. 637; Boyd v. Graham, 5 Mo. App. 403; Sweet v. Leach, 6 Ill. App. 212; C. M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946.]
The remaining charges of negligence were that the cars were backed at a high and reckless rate of speed; that the grounds were obstructed so as to interfere with the giving of signals; and that the grounds were not maintained in such condition that employees might be in a position of safety while giving signals.
As to these, there was no evidence that the cars were backed at a negligent rate of speed. And as to the maintenance of the grounds, while the evidence does show there were some bridge timbers piled on the grounds, yet there is.no evidence showing that they were negligently piled or placed there. They did not interfere with the handling of the train and were not the cause of the interference with the giving of the signals since the curved position of- the cars on the track did that anyway. In fact, the evidence does not show the accident was brought about in any way through the deceased’s inability to give a signal. He had placed himself on the ground directly in front of a moving ear where a signal'could not have been seen had the track been straight and nothing in the way. He was not attempting to get to a place where he could give a signal. He could not do that from the depot platform; and to have signalled from the ground he would have had to go a considerable distance from the