"This
is an action for damages for personal injuries, brought under
the Federal Employers' Liability Act. Plaintiff recovered
a verdict and judgment in the sum of $ 4,000 and defendant
has appealed.
"Plaintiff
a resident of Alexander, Illinois, brought this suit in the
Circuit Court of Daviess County, in this State, to recover
damages for personal injuries received by him on November
29, 1929, at a crossing of a public highway with
defendant's railroad, about two miles east of Alexander.
The injuries were caused by a collision between an automobile
being operated to the south over the crossing and a west-bound motor handcar, on which plaintiff, a
section laborer employed by defendant, was riding to
Alexander, after his day's work, with his section crew.
Plaintiff sued under the Federal Employers' Liability
Act.
"The
motor handcar upon which plaintiff was riding was about six
feet long and four feet eight inches wide. It had constructed
therein a box about three feet wide and extending eighteen
inches above the floor. This box ran lengthwise of the car
and was located in its middle. There were four men in the
section crew. Two of them were seated upon the handcar with
their faces toward the east and two towards the west. The
foreman was seated in front facing toward the west. Plaintiff
was seated to the rear and facing toward the east. It was the
duty of plaintiff and the other men facing east to keep a
lookout toward the east and the foreman and the other men
facing west to look to the west for possible approaching
trains. It was cold and the carburetor of the motor of the
handcar was not working well. McMann, a member of the crew,
was seated to the south of the center of the motor handcar
tending to the carburetor. The foreman was seated to
McMann's right and on the north side of the car, tending
to the brakes. As they approached the crossing going at a
slow rate of speed, the foreman, instead of looking out
ahead, as was his duty, was watching McMann working with the
carburetor. When the motor handcar reached the crossing it
struck an automobile, pushing the same across the road and
derailing the motor car, injuring plaintiff. The curtains of
the automobile were up and the operator thereof did not see
the handcar prior to the collision. Plaintiff's injuries
consisted mainly of a fracture of the bones in both feet
above the ankle, which healed in due time, but he now suffers
a limitation in the use of his feet. He also received an
injury to his spine.
"Plaintiff,
at all times, was a resident of the State of Illinois, while
it appears that defendant is a corporation of the State of
Indiana. After this suit was filed defendant procured an
injunction in the Circuit Court of Morgan County, Illinois,
restraining plaintiff from prosecuting this suit on the
ground that plaintiff was a citizen of that State and that
the defense that defendant would make to the suit pending in
this State would require the presence of a large number of
witnesses, who lived in the State of Illinois where the
accident occurred, and that upon this, and similar grounds,
the trial in this State would constitute an unreasonable and
wrongful interference with, and burden upon, interstate
commerce. However, defendant did not procure this injunction
until after it had filed its answer in this case and after
the injunction was procured it filed an application for a
change of venue, resulting in the change of the venue of the
case from Daviess County to Caldwell. Defendant, without success, sought to have this action abated in
the court below on account of this injunction.
"After
the instant case was appealed to this court the temporary
injunction was made permanent and that case was appealed. The
Court of Appeals of the State of Illinois reversed the decree
of injunction obtained by defendant in the Circuit Court of
Morgan County in that State, on the ground that the petition
for the injunction stated no cause of action.
"Defendant's
first point is that the court below erred in refusing to
abate this suit on account of the injunction aforesaid. There
is no question but that the Circuit Court of Morgan County
had jurisdiction to issue an injunction in a case of this
kind (State ex rel. v. Nortoni, 55 S.W.2d 272) but
the decisions are in conflict as to whether the court wherein
the suit is pending, the prosecution of which is sought to be
enjoined, will stay the proceedings or abate the suit by
reason of such an injunction. If it does so, it is not
because the Federal Constitution requires it so to act but,
solely, upon the ground of comity. [Kepner v. Cleveland
C. C. & St. L. R. R. Co., 322 Mo. 299, 310, 15 S.W.2d
825; Fisher v. Ins. Co., 112 Miss. 30, 72 So. 846;
State ex rel. v. Dist. Court of Hennepin Co., 140
Minn. 494.]
"As
before stated, prior to the application to the Circuit Court
of Morgan County for the injunction, defendant filed its
answer to this cause in the Circuit Court of Daviess County
and so this suit was in process of determination in the
latter court when defendant applied to the Circuit Court of
Morgan County, Illinois, for the injunction. It is not
claimed that the Circuit Court of Daviess County may not
properly proceed in a case of this kind under the Federal
Employers' Liability Act, where there has been no
injunction. The right of the Circuit Court of Daviess County
to proceed having attached before the injunction, we know of
no rule of comity that would
require the court below to discontinue the proceedings in
this case. [State ex rel. v. Nortoni, supra; 15 C. J., p.
1183.]
"Aside
from this, even after the injunction was obtained, defendant
itself, proceeded in the Circuit Court of Daviess County by
taking a change of venue. Defendant seems to think that the
court below should have desisted because plaintiff had been
enjoined from prosecuting the cause but defendant, at the
same time, could consistently proceed in it. In other words,
the litigation could proceed, but only at the behest of the
defendant. Under these circumstances, the Circuit Court of
Caldwell County could have concluded that defendant had
abandoned its injunction proceedings.
"We
have examined the cases of State ex rel. v. Nortoni, supra,
and State ex parte Crandall v. Habbe, 53 F.2d 969,
and like cases cited by defendant, and find them not in
point. Those cases merely deal with the question of
jurisdiction of a state court to enjoin a litigant from
prosecuting in a foreign state, a suit under the Federal Employers' Liability Act. We are not basing
our holding or opinion upon the theory that the Circuit Court
of Morgan County, Illinois, had no right to issue the
injunction, but upon the ground that, conceding that that
court had jurisdiction to issue it, the Circuit Court of
Caldwell County was not required to stay the proceedings in
this cause on the ground of comity, under all of the facts
and circumstances.
"The
evidence shows that plaintiff, for the sum of $ 264, released
his cause of action against the defendant. This release is
pleaded in the amended answer. In his reply plaintiff seeks
to avoid the release by setting up fraud in its procurement,
alleging that defendant represented to plaintiff that said
sum was paid as wages and not in release and satisfaction of
his claim for damages.
"It
is the contention of the defendant that the court should have
sustained its demurrer to the evidence, for, as a matter...
