Chandler v. St. Louis & S. F. R. Co.

• Decision Date: 02 December 1907
• Citation: 106 S.W. 553,127 Mo. App. 34
• Court: Missouri Court of Appeals
• Parties: CHANDLER v. ST. LOUIS & S. F. R. CO.

106 S.W. 553

127 Mo. A. 34

CHANDLER v. ST. LOUIS & S. F. R. CO.

Court of Appeals of Kansas City. Missouri.

December 2, 1907.

1. ACTION—CAUSE OF ACTION — WHAT LAW GOVERNS.

There being no law in the place where the alleged act was committed giving plaintiff right of action, no action for such wrong can be maintained here, for to hold otherwise would be to say that one state could prescribe rules, no matter how arbitrary, to govern persons and things in another state.

2. COURTS—FEDERAL COURTS—STATE LAWS AS RULES OF DECISION — AUTHORITY OF COMMON LAWS OF STATE.

Where the relation of master and servant is unaffected by statute, the responsibility of the master for injuries caused to or by his servants is one of general law as to which the courts of the United States are not bound to follow the state courts.

3. SAME.

Act Cong. May 2, 1890, c. 182, §§ 29-31, 26 Stat. pp. 93-96, establish a United States court of general jurisdiction in Indian Territory, and provide that the general laws of Arkansas as contained in Mansfield's Digest of Arkansas Statutes shall be in force in Indian Territory so far as not locally inapplicable or in conflict with any law of Congress, until otherwise provided. Mansf. Dig. § 566, provides that the common law of England, so far as applicable and of a general nature, and all British statutes in aid of common law, passed not later than a certain time, and not inconsistent with the Constitution and laws of the state, shall be the rule of decision in Arkansas until altered or repealed. Plaintiff was injured in Indian Territory through the negligence of a fellow servant. Held that, there being no statute in Arkansas as to the responsibility of a master for injuries to a servant, and the question being one of general law in which the federal courts are not bound by the decisions of state courts, the decisions of the federal courts furnish the rule by which defendant's liability should be tested, and not the decisions of the Arkansas courts.

4. MASTER AND SERVANT—MASTER'S LIABILITY FOR INJURY TO SERVANT—CONCURRENT NEGLIGENCE OF MASTER AND FELLOW SERVANT.

The rule that, where a servant is injured by the concurrent negligence of a master and fellow servant, no action will lie against the master, is not recognized by the courts of the United States.

5. SAME—RELATION OF—NATURE OF.

In the courts of the United States, a section foreman, in the operation of his hand car, stands to the section hands, not as a vice principal, but as a fellow servant.

6. SAME—MASTER'S LIABILITY FOR INJURIES TO SERVANT—RISK ASSUMED BY SERVANT— OPERATION OF RAILROADS.

Where a section hand, on account of his hand car being overloaded by fellow servants, was thrown and injured, and it was shown that such overloading was customary when he accepted the employment, and continued to the date of his injury; that he made no complaint, and had no assurance that the defect would be remedied, the principle of assumption of risk, as interpreted by the courts of the United States, denies him a recovery.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Adelbert Chandler against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. F. Parker and I. P. Dana, for appellant. Reed, Yates, Mastin & Howell, for respondent.

JOHNSON, J.

Plaintiff, employed by defendant as a section hand, was thrown from a hand car and injured. He brought this action in the circuit court of Jackson county to recover damages, and in his petition alleged that his injury was the direct result of defendant's negligence. He recovered judgment in the sum of $2,000, and defendant appealed.

The injury occurred on the 6th day of November, 1902, on defendant's railroad, near the station of Miami, in the Indian Territory. Plaintiff was a member of a section crew, consisting of 10 laborers and a foreman. In obedience to an order of the foreman, they placed their tools, dinner buckets, and a water keg on the car, and the 11 found places thereon, and proceeded to the scene of their work for that day. The vehicle was an ordinary hand car, the platform of which was about 5 feet long and 4½ feet wide. Plaintiff and three other laborers stood at the front handle, and were so crowded that they were compelled to stand sidewise. The evidence of plaintiff tends to show that the car was overloaded, and that on account of this condition, and of the fact that he could use but one hand in supporting himself, his position was dangerously insecure. Plaintiff did not know where the car would stop, and, taken unawares by a sudden and unnecessarily violent checking of its speed, produced by one of the men setting the brake, was thrown in front of the car and seriously injured. It does not appear that the foreman who was present ordered the brake to be set at that time, nor in that manner; but the act was performed by the brakeman of his own volition, and for the reason that the car had reached the place where the men were to work. Plaintiff, on cross-examination, testified that he had been working for defendant "on that job" for about three weeks, and that the car on that morning carried its usual load of men and tools.

The averment in the petition of specific negligence is as follows: "That its foreman, James Klegg, was negligent in placing upon said car said large quantity of tools, and said 11 men, thereby increasing the liability of plaintiff and others to be thrown from said car in the event of its sudden stop. That defendant, through its agent and servant, was guilty of negligence in suddenly applying the brake to said car while it was moving at a high rate of speed. That plaintiff was thrown from the car by reason of the concurring negligence of defendant's agents and servants in crowding and overloading said car and thereby rendering plaintiff's footing thereon insecure, and in the sudden putting on of the brake of said car while it was being propelled at a high rate of speed." The answer contains (1) a general denial, (2) a plea of contributory negligence, (3) a plea that the injury, if any, was the result of one of the usual and ordinary risks of the business, (4) the defense that "if plaintiff was injured at the place described therein, then his right to recover damages, and defendant's liability therefor, were and are dependent upon and must be determined by the law in force at the time in the Indian Territory, where he says he was hurt, and under such law defendant was not negligent, and was not and is not liable for his alleged injuries, for plaintiff assumed the risk, in connection with his employment, of such injuries."

Defendant introduced in evidence sections 29, 30, 31, Act Cong. May 2, 1890, c. 182, 26 Stat. 93, 94, 95, and 96. This act established a United States court of general jurisdiction in the Indian Territory, and included the provision "that certain general laws of the state of Arkansas in force at the close of the session of the General Assembly of that state of 1883, as published in 1884, in the volume known as `Mansfield's Digest of the Statutes of Arkansas,' which are not locally inapplicable, or in conflict with this act, or with any law of Congress relating to the subjects especially mentioned in this section, are hereby extended over and put in force in the Indian Territory until Congress shall otherwise provide." Then follows an enumeration of the provisions of said general statutes adopted for use in the Indian Territory, and among them that contained in chapter 20 of the digest relating to the common and statute law of England. Defendant then introduced section 566 of said chapter 20, which is as follows: "The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the First (that are applicable to our form of government), of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the general assembly of this state." Further, defendant introduced in evidence the following decisions of federal courts: Railway Company v. Dye et al., 70 Fed. 24, 16 C. C. A. 604; Railway Co. v. Waters, 70 Fed. 28, 16 C. C. A. 609; Thom v. Pittard, 62 Fed. 232, 10 C. C. A. 352; Tomlinson v. Railroad, 97 Fed. 252, 38 C. C. A. 148; Coyne v. Railway, 133 U. S. 370, 10 Sup. Ct. 382, 33 L. Ed. 651; Railway Company v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Railroad v. Hambly, 154 U S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009; Railroad v. Charless, 162 U. S. 359, 16 Sup. Ct. 848, 40 L. Ed. 999; Alaska Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390; Railroad v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; Railway v. Dixon, 194 U. S. 338, 24 Sup. Ct. 683, 48 L. Ed. 1006; Id., 139 Fed. 737, 71 C. C. A. 555; Looney v. Railroad, 200 U. S. 480, 26 Sup. Ct. 303, 50 L. Ed. 564; Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150; So. Pacific Ry. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391; St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551. Also the following decisions of the Supreme Court of Oklahoma: Ruemmeli-Braun Co. v. Cahill, 14 Okl. 422, 79 Pac. 260; Mollhoff v. Railway, 15 Okl. 540, 82 Pac. 733. Plaintiff introduced in evidence the decision of the Supreme Court of Arkansas in the case of Neal v. Railway, 71 Ark. 445, 78 S. W. 220. At the conclusion of all the evidence, as well as at the end of that introduced by plaintiff, defendant requested the court to give an instruction peremptorily directing a verdict for defendant. The refusal of the court thus to instruct the jury is the chief ground of present complaint, and presents questions of law, the proper solution of which will finally dispose of the...