Feeney v. Wabash Railroad Co.

• Decision Date: 14 January 1907
• Citation: 99 S.W. 477,123 Mo.App. 420
• Parties: MARY A. FEENEY, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

99 S.W. 477

123 Mo.App. 420

MARY A. FEENEY, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 14, 1907

Appeal from Clay Circuit Court.--Hon. Joshua W. Alexander, Judge.

AFFIRMED.

Judgment affirmed.

J. L Minnis and Frank P. Sebree for appellant.

(1) The court committed error in refusing to give the demurrer to the evidence offered by defendant. There was no negligence proven against the defendant. 2 Thompson on Negligence, sec. 1922; Brown v. Railroad, 89 Mo.App. 192; Railroad v Clarke, 35 Neb. 867; Railroad v. Walkenshaw (Kan.), 81 P. 463; Railroad v. Fike (Ind.), 74 N.E. 636; Webb v. Railway, 202 Pa. St. 511; Railroad v. Stinger, 78 Pa. St. 219; Farley v Harris, 186 Pa. St. 440; Cin. Ind., etc., v. Gaines, 104 Ind. 526; Yingst v. Lebanon, 167 Pa. St. 438; Huhn v. Railroad, 51 Cal. 605; Lamb v. Railroad, 140 Mass. 79; Favor v. Railroad, 114 Mass. 350; Railroad v. Burkhart, 83 Md. 516; Stanton v. Railroad, 91 Ala. 382; Howard v. Railroad, 156 Mass. 159; District of Columbia v. Moulton, 182 U.S. 576; Cothron v. Cudahy, 98 Mo.App. 344; Harper v. Terminal Co., 187 Mo. 586; Trigg v. Land Co., 187 Mo. 227; Goransson v. Mfg. Co., 186 Mo. 301. (2) The plaintiff herself was negligent, and the court committed error in not sustaining the demurrer to the evidence on this ground. Marsh v. Railroad, 104 Mo.App. 588; Beach on Contributory Neg., sec. 115; 3 Elliott on Railroads, sec. 1174; Township v. Anderson, 114 Pa. St. 643; Brickell v. Railroad, 120 N.Y. 290; Dean v. Railroad Co., 129 Pa. St. 514; Smith v. Railroad, 87 Me. 339; Miller v. Railroad, 128 Ind. 97; Sluder v. Transit Co., 189 Mo. 143; Sanguinette v. Railway, 196 Mo. 466; 95 S.W. 386; Bush v. Railroad, 62 Kan. 716; Donnelly v. Brooklyn City, 109 N.Y. 16; Railroad v. McLeod, 78 Miss. 334, 84 Am. St. Rep. 630; Railroad v. Schmidt, 81 Ind. 264; Whitney v. Railroad, 69 Me. 208. (3) The court erred in giving instructions numbered one and two asked by plaintiff. They ignore the negligence of plaintiff, and authorize a verdict for her, notwithstanding her negligence. Holden v. Railroad, 177 Mo. 465; Railroad v. Bentz, 38 Ill.App. 488; Railroad v. Kutac, 72 Tex. 642; Lapsley v. Railroad, 50 F. 172. (4) The lower court was without jurisdiction to try the case. Moon on Removal of Causes, sec. 157, p. 448, sec. 204, p. 637; Powers v. Railroad, 169 U.S. 92; Enders v. Railroad, 101 F. 202.

Craven & Moore for respondent.

(1) There was evidence in the case that the noise of defendant's engine was unusual and unnecessary. Brown v. Railroad, 89 Mo.App. 192; Hallem v. St. Louis, 176 Mo. 606; Phelen v. Granite P. B. Co. (Mo.), 91 S.W. 440; Oates v. Railroad, 168 Mo. 544; McGrew v. Railroad, 32 Tex. Civ. App. 265; Hudson v. Railroad, 4 Bush. 303; Ayers v. Railroad, 63 N. J. L. 416; Mitchell v. Railroad, 100 Tenn. 329; Presby v. Railroad, 66 N.H. 615; Railroad v. Bennett, 59 Pa. 259; Flynn v. Railroad, 169 Mass. 305; Railroad v. Boettcher, 131 Ind. 82. (2) The burden of proof was on defendant to show that the necessity for making the noise was so urgent as to justify it. Mitchell v. Railroad, 100 Tenn. 329; Railroad v. Bennett, 59 Pa. 259. (3) Injury cannot be excused on grounds of necessity, when necessity is produced by former negligence of defendant. Brooks v. Railroad, 35 Mo.App. 578; Amestrout v. Railroad, 1 Mo.App. 162; Dunkman v. Railroad, 95 Mo. 246. (4) Plaintiff was not guilty of contributory negligence and defendant's instructions thereon were properly refused. Dickson v. Railroad, 104 Mo. 503. (5) Appellant's jurisdictional question is not in this case. Walker v. Railroad, 92 S.W. 88.

OPINION

JOHNSON, J.

--Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had judgment and defendant appealed.

The action was brought in the circuit court of Clay county. Defendant filed a petition and bond for removal to the circuit court of the United States. The cause was transferred, but, on the motion of plaintiff, was remanded to the State court on the ground that the affidavit and bond for removal were not filed in proper time.

After this, defendant filed an amended answer in the State court in which, among other defenses, it challenged the jurisdiction of that court, asserting, in effect, that the removal to the Federal court was timely and that the latter tribunal was vested with exclusive jurisdiction to hear and determine the cause. This contention is reiterated here, but we find it to be without merit. The effect of an order to remand is neither to originate a jurisdiction in the State court nor to restore one lost by that court, but to put an end to the interruption of the jurisdiction which obtained therein before the institution of the proceeding to remove. The State court has no power to review or correct the rulings of the Federal court in remanding a cause, but must proceed to exercise the jurisdiction which the latter court in effect declares it has no proper occasion to supersede. [Walker v. Railroad, 193 Mo. 453, 92 S.W. 83; Black's Dillon on Removal of Causes, sec. 225; Tilley v. Cobb, 56 Minn. 295.]

On the merits of the case, the principal questions arise from defendant's insistence that an instruction in the nature of a demurrer to the evidence should have been given. Excelsior Springs is the terminus of one of defendant's railroad lines and is on the line of the Chicago, Milwaukee & St. Paul Railroad Company. The yards and stations of the two companies, which are about a mile apart, are connected by a dummy railroad owned and operated by defendant. The track of this connecting road is up grade from defendant's station to a point three hundred or four hundred yards from the Milwaukee station and from there on it runs down grade. It is laid in public streets of the city. From defendant's station, it passes along Dunbar avenue to the point where that thoroughfare merges into Kimball avenue and thence along the latter street. The crest of the hill is near the point where the two avenues unite. Kimball avenue is eighty feet wide. The east twenty-five feet of its width is occupied by the railroad, leaving fifty-five feet for the use of vehicles and pedestrians. It is a part of one of the main arteries of travel between the city and country and is much used.

Plaintiff was injured near the junction of the two avenues. As the guest of her son-in-law, a Mr. Janney, she was riding in the rear seat of a two-seated surrey, which was being drawn by a team of rather spirited horses. Mr. Janney acted as driver and other occupants of the vehicle were his wife and a Mrs. Templeton. The party was returning along Kimball avenue from a pleasure drive in the country. They had passed the Milwaukee station and were approaching the junction of the two avenues. When about two hundred yards distant from that point, they observed the dummy engine used by defendant standing on the track about two hundred yards ahead of them. Fearing that the engine might be approaching and not wishing to meet it, Mr. Janney stopped the team and discussed with his companions the advisability of turning around and driving back, but, observing that the engine was not moving and knowing that frequently it had to stop on the up grade to gain power before it could proceed, he concluded to drive forward, deeming it safe to attempt to pass the engine while it was stationary. To this point, none of the occupants of the vehicle noticed that the engine was making a loud noise, nor did the horses exhibit any signs of fright. After starting forward, the horses became restive and then it was that plaintiff and her companions became aware that the engine was making a very loud and, as they describe it, an unusual noise. They were then, owing to the narrowness of the usable roadway, in a position where they could not turn around without backing the team and this, Mr. Janney considered impracticable. He still thought he could control the horses and drive by the engine in safety, but when they reached a point nearly opposite the engine the fright of the animals, which all along had been increasing, caused them to become unmanageable. They ran away, upset the vehicle and plaintiff was injured.

The engine, a small one propelled by steam, was hauling a box car loaded with fifty thousand pounds of wheat to the Milwaukee road. The load was too heavy for the capacity of the engine and it had been compelled to stop a number of times to make steam and was engaged in that work at a point about thirty feet from the top of the hill when the surrey approached. To make a quick and hot fire in the fire-box a strong draft is required and this is made by the use of a blower--a small pipe through which steam is forced into the smokestack. When in operation to its full capacity, the blower produces a very loud, irritating and continuous noise and it was this noise that frightened the horses. The engineer and fireman were on the engine at the time and the conductor was on the freight car. The first two paid no attention to the wagon road and did not know of the plight of the occupants of the surrey. The conductor says he noticed the team from the time it first took fright, but the time was too short for him to warn the engineer. The noise continued until after the injury occurred. Mr. Janney had hired the team from a liveryman in Excelsior Springs and all of the occupants of the vehicle agree that the horses behaved well during the drive and gave no indication of viciousness. The liveryman testified that they were well broken and had been thoroughly accustomed to engines and cars by service in drawing a hack that plied between the railroad stations and various parts of the city.

The foregoing statement embodies the facts most...