130 S.W. 388 (Mo.App. 1910), Schwyhart v. Barrett

Citation:130 S.W. 388, 145 Mo.App. 332
Opinion Judge:JOHNSON, J.
Attorney:Brown & Dolman for appellants. K. B. Randolph, Boyd Dudley and I. A. Selby for respondent.
Case Date:June 28, 1910
Court:Court of Appeals of Missouri

Page 388

130 S.W. 388 (Mo.App. 1910)

145 Mo.App. 332




Court of Appeals of Missouri, Kansas City

June 28, 1910

Page 389

Appeal from Daviess Circuit Court.--Hon. J. W. Alexander, Judge.

AFFIRMED as to defendants, Martin A. Barrett and Chicago, Rock Island & Chicago Railway Company; REVERSED as to defendants, Frank Novak and H. L. Reed.

Judgment affirmed as to defendants, Barrett and Railway Company; Judgment reversed as to defendants, Novak and Reed.

Brown & Dolman for appellants.

(1) Upon the filing of the petition for removal and removal bond in this case, the jurisdiction of the State court ceased ipso facto, and that of the Federal court immediately attached. No order of the State court is necessary to confer jurisdiction of the Federal court, and no refusal of such an order can prevent that jurisdiction from attaching. 18 Ency. of Pl. and Pr., 347, 399; Beery v. Railroad, 64 Mo. 533; Stanley v. Railroad, 62 Mo. 508; Herryford v. Insurance Co., 43 Mo. 148. (2) All questions of fact made upon the petition for removal must be tried in the Federal court. The petition presents to the State court the question of law only, whether assuming the facts stated to be true it discloses a removable case. Carson v. Hyatt, 118 U.S. 279; Stone v. South Carolina, 117 U.S. 430; Carson v. Dunham, 121 U.S. 421; Railroad v. Dunn, 122 U.S. 513; Crehore v. Railroad, 131 U.S. 240; Railroad v. Adams (Ark.), 112 S.W. 186; McAlister v. Railroad, 157 F. 740; Donovan v. Wells, Fargo & Co., 169 F. 363. (3) The allegation of fraudulent joinder in this case is sufficient. Wecker v. Enameling, etc., Co., 204 U.S. 176. (4) There is nothing in the evidence tending to show any negligence on the part of trainmaster Reed, or that he failed in the performance of any duty he owed to the plaintiff. Relyea v. Railroad, 112 Mo. 86; Golden v. Seeghardt, 53 N.Y.S. 461. Hassey v. Coger, 112 N.Y. 614; Besel v. Railroad, 70 N.Y. 171; Railroad v. Dolan, 32 Mich. 510; Railroad v. Keegan, 160 U.S. 259; Ryan v. Railroad, 23 Pa. 384; Bowen v. Railroad, 95 Mo. 268. (5) Nothing is better settled than that the fact of the injury is not sufficient to fix the liability of the defendant in cases of this character. The burden is upon the plaintiff to prove affirmatively the negligence which produced it. Dowell v. Guthrie, 116 Mo. 646; Ryan v. McCully, 123 Mo. 636; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Yarnell v. Railroad, 113 Mo. 570; Sanders v. Railroad, 147 Mo. 411. (6) Each of the instructions given for plaintiff tells the jury directly and unequivocally that if the freight engine was used to do the switching without notice to or knowledge of the plaintiff the act amounted to negligence per se. This was error. So far as this act was evidence of negligence it was for the jury to determine its effect. Huelsenkamp v. Railroad, 34 Mo. 45; Barton v. Railroad, 52 Mo. 253; Gage v. Transit Co., 211 Mo. 139; Kreimelmann v. Jourdan, 107 Mo.App. 64; Dowell v. Guthrie, 99 Mo. 653; Gratiot v. Railroad, 116 Mo. 450.

K. B. Randolph, Boyd Dudley and I. A. Selby for respondent.

(1) This case is not removable. Lanning v. Railroad, 196 Mo. 656; Johnson v. Railroad, 203 Mo. 398; Stotler v. Railroad, 200 Mo. 118; Railroad v. Dixon, 179 U.S. 131; Railroad v. Thompson, 200 U.S. 206; Railroad v. Bohon, 200 U.S. 221. (2) The right of removal is wholly statutory and the State court is not ousted of its jurisdiction unless the cause is properly removable. It is not sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings, but it must appear positively, and this is true whether the jurisdiction is invoked upon the ground of diverse citizenship, or otherwise. Hanford v. Davis, 163 U.S. 273; Bors v. Preston, 111 U.S. 252; Mansfield v. Swan, 111 U.S. 379; Grace v. Insurance Co., 109 U.S. 278; Steamship Co. v. Tugman, 106 U.S. 118, 27 Law Ed. 87; Johnson v. Wells Fargo Co., 91 Fed 4; Railroad v. Carson, 194 U.S. 138; 48 Law. Ed. 910. (3) All doubts are to be resolved in favor of the jurisdiction of the State court. Fitzgerald v. Railroad, 45 F. 819; Nash v. McNamara, 145 F. 541; Kessinger v. Vannatta, 27 F. 890; Ernest v. American S. M. Co., 114 F. 981; Railroad v. Davidson, 157 U.S. 208; Hanrick v. Hanrick, 153 U.S. 192; Shaw v. Quincy Mineral Co., 145 U.S. 444. (4) No presumptions can be indulged in favor of the jurisdiction of the Federal court. It must be a removable cause and the necessary jurisdictional facts must appear on the face of the pleadings and where they do not appear, the fact of the filing of a petition for removal in no wise affects the jurisdiction of the State court. 18 Ency. Pl. and Pr., 297. (5) The Federal court cannot supply omissions by intendment or by taking judicial notice of outside facts. The question as to whether there is a separable controversy is to be determined by the condition of the record in the State court and the facts necessary to give jurisdiction to the Federal court must appear upon the face of the plaintiff's petition. They cannot be supplied by a petition for removal or subsequent pleading unless fraud be specifically averred and proved. Arkansas v. Coal Co., 183 U.S. 189; Mountview Co. v. McFaddin, 180 U.S. 535; Railroad v. Mills, 113 U.S. 257; Tenn. v. Bank, 152 U.S. 460; Thomas v. Railroad, 147 F. 83; Knuth v. Butte Electric Co., 148 F. 73; McMillen v. Noys, 146 F. 926; Railroad v. Vincent, 116 Tenn. 317; Railroad v. Leggett, 162 F. 571. (6) The allegations of the petition are taken as confessed, in determining whether the controversy is separable, on application for removal to the Federal court. Railroad v. Lucinda Wangelin, 132 U.S. 602; Railroad v. Grayson, 119 U.S. 240; In re Jarnecke Ditch, 69 F. 171; Cane v. Indianapolis, 82 F. 772; Evans v. Felton, 96 F. 176. (7) The statement in the petition for removal that the defendants Reed, Novak and Barrett were made defendants for the sole and fraudulent purpose of preventing removal, etc., presents no issuable fact, only a conclusion, being unsupported by any specific statement of facts on which it is based and amounts to nothing and will be disregarded. Little York Gold Co. v. Keys, 96 U.S. 190, 24 Law. Ed. 656; Bank v. Ford, 114 U.S. 635, 29 Law Ed. 261; Hambledom v. Dunham, 22 F. 465; Railroad v. Dixon, 179 U.S. 131; Carson v. Dunham, 121 U.S. 421. (8) The fact that defendants Barrett, Reed and Novak are not so able to respond in damages, even if it be true, would not make the joinder fraudulent. The plaintiff had the right to join them if he desired. On the face of the plaintiff's petition they were jointly liable. Min. Co. v. Amador Canal Co., 118 U.S. 264; Railroad v. Lucy McBride, 141 U.S. 127. (9) Whether upon the facts the plaintiff is entitled to recover is not a matter of jurisdiction but one of the merits of the controversy. Hax v. Saspar, 31 F. 499; Evans v. Fulton, 96 F. 176; Insurance Co. v. Railroad, 101 F. 507; Fogarty v. Railroad, 123 F. 973; Railroad v. McBride, 141 U.S. 127, 35 Law Ed. 660; Thomas v. Railroad, 147 F. 83; Insurance Co. v. Railroad, 101 F. 510. (10) The position taken by appellant that common law and statutory negligence cannot be joined in one count, even if Novak and the plaintiff were fellow servants, is out of line with the statute and the current of authority and is not the law. R. S. 1899, sec. 545; Myers v. Transit Co., 99 Mo.App. 363; Senn v. Railroad, 135 Mo. 512; Gebhardt v. Railroad, 97 Mo.App. 373; Berger v. Railroad, 112 Mo. 238; Wacher v. Transit Co., 108 Mo.App. 645; Holden v. Railroad, 108 Mo.App. 665; Sluder v. Transit Co., 189 Mo. 107; Rapp v. Transit Co., 190 Mo. 144; Clancy v. Transit Co., 192 Mo. 615; Haley v. Railway, 197 Mo. 15. (11) The sudden backing of the cars without warning to a servant in a position of danger is negligence on the part of the railroad company. Spotts v. Railroad, 3 Mo. 380. (12) The fact that the servant's work is done in the presence of and under the immediate direction of the master foreman is equivalent to an assurance that the servant may safely proceed with it. He is not bound in such case to search for danger, but may rely for his safety on the judgment of the foreman. Sullivan v. Railroad, 107 Mo. 66; Herdler v. Buck Stove Co., 136 Mo. 3. (13) The servant assumes only such risks as are ordinarily incident to his employment, but does not assume the risk of the negligence of the master nor the negligence of fellow servants. Blanton v. Dold, 109 Mo. 64; Henry v. Railroad, 109 Mo. 488; Herdler v. Buck Stove Co., supra. (14) Taking a position in a line of duty is not negligence on the part of the servant unless the danger is present and apparent. Murphy v. Railroad, 115 Mo. 111. (15) Where a servant is injured in the performance of an act incident to the duties of his employment in the usual manner, he is held to have assumed the risk, but if the mode adopted by the master is unusual and the servant is injured by reason thereof, the servant does not assume the risk and the master is liable for damages, suffered by the servant. Benedict v. Railroad, 104 Mo.App. 218; Blanton v. Dold, 109 Mo. 64; Henry v. Railroad, supra; Herdler v. Buck Stove Co., supra. (16) It makes no difference if the plaintiff did assume a dangerous position, if injury would not have resulted except for the negligence of defendant. Meyer v. Railroad, 59 Mo. 223; Walsh v. Miss. Trans. Co., 52 Mo. 434; Smith v. U. R. Co., 61 Mo. 588; Moore v. Railroad, 126 Mo. 265; Dowell v. Guthrie, 99 Mo. 653; Fulks v. Railroad, 111 Mo. 335; Lynch v. St. Car Co., 112 Mo. 420; Langan v. Railroad, 72 Mo. 392; Dickson v. Railroad, 124 Mo. 140; Kleiber v. Railroad, 107 Mo. 240; McPeak v. Railroad, 128 Mo. 617; Sinclair v. Railroad, 133 Mo. 233; McGee v. Railroad, 92 Mo. 208. (17) The presence of the master is an assurance of...

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