187 F. 949 | 8th Cir. | 1911
This was an action at law, brought by the defendant in error, hereafter called the plaintiff, against the St. Louis, Iron Mountain & Southern Railway Company, plaintiff in error, hereafter called the defendant, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. The case was originally brought in the state court, and removed tp the Circuit Court for the Western District of Arkansas by the defendant. The plaintiff filed a motion to remand, which was overruled. It was suggested at the argument, and again by the plaintiff in her brief, that the motion to remand should have been sustained; but, as the present writ of error presents only the assignments of error made by the defendant, the suggestion cannot, of course, be considered.
We think the motion was properly denied. The statute is remedial in its character, and it should be so construed as to prevent the mischief and advance the remedy, and may be enforced either in the state or federal courts. Leggett v. Railway (C. C.) 180 Fed. 314; Nelson v. Railway (C. C.) 172 Fed. 478; Dennick v. Railway, 103 U. S. 11, 26 L. Ed. 439; Potter’s Dwarris on Statutes, 234; Brady v. Daly. 175 U. S. 156, 20 Sup. Ct. 62, 44 L. Ed. 109.
It is alleged in the complaint, and also established by the evidence, that Conley, at the time he received the injuries which resulted in his death, was actively engaged in interstate service; that he was an engineer on a freight train running from Crane, Mo., to Cotter, Ark. In considering the act of 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 [U. S. Comp. St. Supp. 1909, p. 1148]), in the Employer’s Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, the Supreme Court sustained the authority of Congress, under its power to regulate interstate commerce, to prescribe the rule of liability as between interstate carriers and their employes in such interstate commerce in cases of personal injuries received by employes while actually engaged in such commerce, basing its conclusions, as we understand the case, on the ground that a rule of that character would have direct reference to the conduct of interstate commerce, and would therefore be within the power of Congress to establish. But as the act included, not only this" class of employés, but all employes, many of whom were not actually engaged in the movement of interstate commerce, it was held that Congress had exceeded the power conferred upon it by the commerce clause of the Constitution. The act of 1908 provides that every common carrier by railroad, while engaged in interstate com
This statute is in derogation of the common law, and it must be conceded that such statutes are to be construed strictly; but, as suggested by Chief Justice Parker in Gibson v. Jenney, 15 Mass. 205, “they are also to be construed sensibly and with a view to the object aimed at by the Legislature.” The primary object of the act was to-promote the safety of employés of railroads while actively engaged in the movement of interstate commerce, and is well calculated to sub-serve the interests of such commerce by affording such protection; there being, as it seems to us, a substantial connection between the object sought to be attained by the act and the means provided to accomplish that object.
In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832, the Supreme Court, referring to the fourteenth amendment, said:
“The liberty mentioned in that amendment means not only the right of the citizen to he free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of -the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436.
But this freedom of contract has always been recognized as a qualified, and not as an absolute, right. In Railway Company v. McGuire, 219 U. S. 549, 31 Sup. Ct. 259, 55 L. Ed.-, the Supreme Court, speaking through Mr. Justice Hughes, said:
“The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. Crowley v. Christensen, 137 U. S. 89 [11 Sup. Ct. 13, 34 L. Ed. 620]; Jacobson v. Massachusetts, 197 U. S. 11 [25 Sup. Ct. 358, 49 L. Ed. 643].”
In Frisbie v. United States, 157 U. S. 165, 15 Sup. Ct. 588, 39 L. Ed. 657, the court said:
“It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets ; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence; and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property.”
We think the demurrer was properly overruled.
The defendant then answered, and the case was brought on for trial, resulting in a verdict in favor of the plaintiff.
It is averred in the complaint that the defendant is a corporation organized and existing under and by virtue of the laws of the state of Arkansas, and owns and operates a line of railroad extending from Newport, Ark., to Carthage, Mo., and known as the “White River Branch”; that Conley, the deceased, was, on the 30th day of September, 1909, in the employ of the defendant as an engineer on a freight train running from Crane, Mo., to Cotter, Ark., which train was engaged in commerce between the state of Arkansas and the state of Missouri. It is then alleged that a short distance south of Crickett, Ark., the defendant constructed a tunnel, known as “Crickett Tunnel,” through which its road extends; that near the center of the tunnel the defendant negligently and carelessly erected and maintained upright posts of timber, known as “batter posts,” so near and within such close proximity to defendant’s track that they rendered the operation of its engines and trains over the track at such place hazardous, unsafe, and dangerous to its employés while in the discharge of their duty; that the condition of the tunnel was known to defendant, and not known to Conley; that on the date above mentioned Conley was in the discharge of his duties as engineer of a freight train, and while the engine was passing the upright timbers, or “batter posts,” he was struck upon his head by one of them, on account of the negligence and carelessness of the defendant, and by reason of the upright timbers being too close and within dangerous proximity to the track; that he received injuries resulting in his death.
Defendant in its answer (1) denies that it was negligent in the respects charged in the complaint, and (2) avers that Conley had notice of the exact conditions and full knowledge of the location of the posts, and that he thereby assumed all risk of injury that might develop from the location of the posts; (3) that the act of Congress of 1908 violates the fifth amendment to the Constitution of the United States, if it in any way modifies or changes the obligation of the parties as established by contract; (4) that the timbers in the tunnel were so placed as to admit the passage of engines and trains through the tunnel with safety to all employés, if the rules and orders with reference to operating defendant’s engines were observed; (5) that Conley
There is no conflict in the evidence as to the time, place, and cause of Conley’s death. The tunnel was, as the record shows, 3,037 feet . in length. It had been constructed and in use for some five years prior to the date of the accident. The walls of the west, or Missouri, ‘end of the tunnel,-for 500 feet were supported on a concrete floor 'built on piles; then for 117 feet the arch consisted of timber supported by a rock ledge; from that point for some distance the roof was not arched; then came another Section of the tunnel, still further east, which was concreted, and still further on to the east it was timbered at some places and at others left as a rock surface. In February, 1909, there was a caving of the roof of the tunnel near the west end, at a place where the roof was not arched. After the removal of the> débris the roof was arched at the point where the caving occurred, and at two other places, the arch being supported by upright or “batter posts,” as they are referred to in the record. The first set of timbers were placed in the tunnel about 580 feet from the west end, another set was placed 160 feet further east, and still another set 200 feet east of the second set, making the last set of timbers about 940 feet from the west end of the tunnel and 2,197 feet from the east, or Arkansas, end of the tunnel. The record shows that the tunnel curves to the south at the east end, beyond the last set of timbers, and that Conley was killed by his head coming into contact with the first or west post of the last set of timbers. At this place the roof of the tunnel, as originally constructed, was arched with seven segments of timber, which had become decayed, and, after the caving of the tunnel at the other place, defendant constructed a. wooden arch of five segments of timber underneath the original arch at the place of injury to the deceased, and these rested upon 12x14 oak wall plates, supported by 13 upright timbers 12x12 and 16 feet in length. The original clearance of the tunnel was 15 feet. After these timbers were placed, the clearance was reduced to 13 feet. There was a conflict in the evidence as to the necessity for reducing the clearance.
Without reviewing in detail the evidence of the several witnesses, we think it was clearly shown that these posts could have been set back at least 6 inches on either sicle of the track, giving a foot more clearance, without affecting the safety of the tunnel or doing any additional'work, and at very slight expense could have been put back at least a foot on each side, thus making it possible for employes operating trains to do so with little, if any, danger. It was also testified that these posts were not in line, varying from 2 to 3 inches toward the track. There was testimony tending to show that a bulletin had been posted in which the clearance of the tunnel was stated to be 11 feet, and that it was the duty of the engineer to familiarize himself with this bulletin. The bulletin, however,- as the record shows, referred only to the loading of cars so that the load, such as lumber, would not project more than 11 feet from side to side, and did not give the correct clearance of the tunnel. That the bulletin could not have been
Other assignments of error relate to the refusal of certain requested instructions and to portions of the charge of the court to the jury. We do not deem it necessary to discuss these several assignments of error separately. They have all been considered, and we think the charge of the court fairly stated the law applicable to the case.
Upon the whole case, we find no error warranting a reversal of the judgment, and it must therefore be affirmed.
For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes