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

101 So. 548 | Miss. | 1924

Ethbidge, J.,

delivered the opinion of the court.

The appellee was plaintiff below, and sued the appellant for an injury received as an employee of the appellant engaged at the time of the injury in interstate commerce, the injury being occasioned by a defective stirrup or foothold on the car of the appellant. The injury occurred in the state of Arkansas, where the plaintiff was working for the defendant as a brakeman. He was riding on the top of a car while transferring some cars from a point on the appellant’s line to another point on a connecting line of another railroad. During the journey the brakes stuck, and it was necessary for1 the plaintiff as brakeman to descend from the cars and inspect the trouble and remove the cause of it, which he did by “ bleeding” the brakes, a process by which the brakes were loosened. The train was runrúng at a slow rate of speed, and the plaintiff bled several of the brakes on defendant’s pars, which caused the speed of the train to increase. The plaintiff attempted to remount the train, and testifies that the stirrup or fixture provided for the use of the brakeman in so mounting the cars gave way and caused him to fall and his foot to be crushed, necessitating amputation about ten inches below the knee. The defendant is a nonresident corporation of Mississippi, incorporated under the laws of Missouri, and the plaintiff was a nonresident of Mississippi, residing at the time of the accident in the state of Tennessee and in the city of Memphis. When the cause came on to be heard before the circuit court at the return term, a motion was made to transfer the cause to the federal court of the Eastern division of the Northern district of Mississippi on the ground of nonresidence of the defendant. Affidavit and bond were tendered in court with the motion. When the motion was first presented the circuit judge verbally announced that the motion would be sustained, but no order was entered on the minutes to that effect. Immediately afterwards another case was presented in which a like motion was made, and the attorney for the plaintiff in that case requested the circuit judge to allow him until the following morning to produce authorities on the question of removal, which request the judge granted, stating at the time that he would reserve all of these matters until the following morning. The next morning the judge, having personally investigated the question and after1 hearing the arguments, announced that the causes were not removable under the law, and entered an order denying the applications to remove; to which action exception was duly taken. When the cause came on to be tried, the defendant again objected to proceeding* in the state court on the ground that the cause had been removed to the federal court by verbal pronouncement of the circuit judge when the motion was first presented to him. The cause proceeded to trial in the circuit court, and a verdict was returned for the plaintiff in the sum of twenty-five thousand dollars.

The testimony of the plaintiff shows that he was engaged in interstate commerce as an employee of the defendant, and that defendant was engaged in interstate commerce at the time of the injury, and that it was plaintiff’s duty as a brakeman to come down off of the cars when the brakes stuck and release them by the process known as “bleeding;” that he bled several of the brakes, and that the speed of the train was picking up, traveling at eight or ten miles per hour, and, when the rear part- of the train reached plaintiff, he undertook to mount, and the stirrup, a fixture attached to the sill of the car for the use of brakemen in remounting, gave away. This stirrup is one of the appliances required to be kept in safe condition in accordance with the Safety Appliance Act (27 Stat. 531 [U. S. Comp. St. section 8606]). The defendant insists that the cause was removable because the suit was based upon a defect in the safety appliances required by that act to be kept in good condition, and under the terms of that act the cause is. removable to the federal court. The plaintiff insists that the suit is brought under the federal'Employers’ Liability Act (U. S. Comp. St. section 8657-8665), and it is mandatory that it be brought under that act in all cases where the employee injured was engaged at the time of the injury in interstate commerce.

This court passed upon this question in the case of St. Louis & San Francisco Ry. Co. v. John R. Kirk, 101 So. 377, 136 Miss. 608, decided October 6, 1924, in which Division A of this court, in an opinion by Judge Andurson, held that the cause was removable, and the verbal pronouncement by the judge o'f an order to remove it did not deprive the court of jurisdiction in cases where the cause was not removable under the law. The question in that case and in this case is precisely identical, and this cause is controlled by that opinion on this point.

It is insisted by the appellant that the verdict is excessive and that reversal should be had for this reason. The testimony shows that plaintiff was at the time of the injury thirty-nine years old, in good health, and receiving two hundred dollars per month salary as compensation for his work. It shows that he suffered great pain from the injury, and that he still suffers from the injury. He was confined in a hospital for about thirty days and incurred hospital expenses. A great many, authorities have been collected by the appellant and the appellee in their briefs on this question, and we have reviewed the authorities and have reached the. conclusion that we are not authorized under the evidence in this record to hold the verdict excessive.

In Mississippi Central R. Co. v. Hardy, 88 Miss. 782, 753, 41 So. 505, at page 510, the court said:

“This court has no scale delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task. The law has committed this delicate task to the unbiased judgment of the twelve plain, practical, everyday men whu compose the jury, and if can nowhere be more safely rested than in the application of . . . the particular facts proven in each particular case. We cannot say on the facts in this case that- their finding is not warranted. ’ ’

In the case before us the plaintiff had been engaged in the railroad business for many years, and it would be somewhat of an experiment as to what he could do in any other line of business. His earning power is largely destroyed and he suffered considerably from the injury. Twenty-five thousand dollars at six per cent, interest would only yield an annual income of one thousand five hundred dollars. To earn in some other business enough to make up the amount of salary he was receiving would require the earning of at least seventy-five dollars a month. "When we consider these facts in connection with all the circumstances of the case, we are unable to say that the verdict is excessive in the legal sense of that term.

The other assignments of error are without merit.

Affirmed.