Chandler v. St. Louis & San Francisco Railroad Co.

• Decision Date: 02 December 1907
• Citation: Chandler v. St. Louis & San Francisco Railroad Co., 106 S.W. 553, 127 Mo.App. 34 (Kan. App. 1907)
• Parties: ADELBERT CHANDLER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

106 S.W. 553

127 Mo.App. 34

ADELBERT CHANDLER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 2, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

REVERSED.

Judgment reversed.

L. F Parker and I. P. Dana for appellant.

(1)The trial court erred in overruling defendant's demurrer filed at the close of all the testimony in the case, and in refusing to give the instruction which it asked directing a verdict in its favor.Fogarty v. Transit Co.,180 Mo. 502;Root v. Railway,195 Mo. 371;22 Am. & Eng Enc.Law (2 Ed.), 1378;1 Jaggard on Torts, p. 102, sec. 34;State to use v. Railway,45 Md. 41;Beacham v Proprietor,68 N.H. 382, 40 At.Rep. 1066;Pullman Co. v. Lawrence,74 Miss. 782;Railroad v. Tanner,68 Ga. 384;Railroad v. Babcock,144 U.S. 190.(2)Defendant was entitled to a direction from the trial court for a verdict in its favor even under the laws of Missouri.Mathis v. Stock Yards Co.,185 Mo. 444;Lee v. Railroad,112 Mo.App. 391;Zeigenmeyer v. Cement Co.,113 Mo.App. 337;Post v. Railroad, 97 S.W. 233.

Reed, Yates, Mastin & Howell for respondent.

OPINION

JOHNSON, J.

--Plaintiff, employed by defendant as a section hand, was thrown from a handcar 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 two thousand dollars 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 ten 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 eleven found places thereon and proceeded to the scene of their work for that day.The vehicle was an ordinary handcar, the platform of which was about five feet long and four and one-half 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 eleven 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 29,30and31 of the Act of Congress of May 2, 1890, Vol. 26, U.S. Stat. at Large, pp. 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: Railroad v. Dye,70 F. 24;Railroad v. Waters,70 F. 28;Thom v. Pittard,62 F. 232;Tomlinson v. Railroad,97 F. 252;Coyne v. Railroad,133 U.S. 370;Railroad v. Baugh,149 U.S. 368;Railroad v. Hambly,154 U.S. 349;Railroad v. Charless, 162 U.S. 359;Alaska Mining Co. v. Whelan,168 U.S. 86, 42 L.Ed. 390, 18 S.Ct. 40;Railroad v. Conroy,175 U.S. 323;Railway v. Dixon,194 U.S. 338;139 F. 737;Looney v. Railroad,200 U.S. 480;Kohn v. McNulta,147 U.S. 238, 37 L.Ed. 150, 13 S.Ct. 298;Railroad v. Seley,152 U.S. 145;St. Louis Cordage Co. v. Miller,126 F. 495.Also the following decisions of the Supreme Court of Oklahoma: Ruemmeli-Braun Co. v. Cahill,79 P. 260;Molhoff v. Railroad,82 P. 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 case.

It is conceded that at the time of plaintiff's injury, there were no other courts of general jurisdiction in the Indian Territory than those established by the Act of Congress to which we have referred, and that appellate jurisdiction over actions originating in the territorial courts was vested in the Circuit Court of Appeals of the United States for the Eighth Circuit.And further, it is admitted that the cause of action, if any, which inured to plaintiff in the Indian Territory was not statutory but arose from the common law and that it was transitory and not local.That is to say, being a species of intangible property of a personal nature, it traveled with the plaintiff, its owner, wherever he might go and could be enforced in the courts of any jurisdiction where the defendant could be legally brought into court.

The issues of law presented for our determination will appear from a statement of the positions taken by the respective parties: Defendant contends that the courts of the Indian Territory are bound to follow the interpretation of the rules and principles of the common law made by the appellate courts of the United States having jurisdiction over them and are not bound by the decisions of the Supreme Court of Arkansas whether pronounced before or after the adoption of the Arkansas statutes as a part of the jurisprudence of the Indian Territory where such decisions are in conflict with those of the federal courts.Defendant then points to a number of cases decided by the Circuit Court of Appeals for the Eighth Circuit and by the Supreme Court of the United States as authority sustaining its contention that on the facts adduced in evidence by plaintiff, he had no cause of action in the Indian Territory for the following reasons: (1) The two negligent acts of which he complains, namely, that of overloading the car and that of stopping it with unnecessary violence, were the acts of fellow-servants, for which defendant could not be held liable.Authorities cited show that in the running of a handcar the foreman of the section crew is not a vice-principal, but a fellow-servant.(2) Though it should be conceded that the foreman in the present case was a vice-principal, still plaintiff could not recover on account of the rule obtaining in the federal courts that where a servant is injured by the concurring negligence of the...