Farrar v. St. Louis & San Francisco Railroad Company
| Citation | 130 S.W. 373,149 Mo.App. 188 |
| Parties | WALTER FARRAR, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent |
| Decision Date | 07 July 1910 |
| Court | Missouri Court of Appeals |
Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.
Judgment affirmed.
Livingston & Livingston for appellant.
(1) The Constitution abolishing the Fellow-Servant Law in that State took effect on the day that the Constitution was adopted by the people. 8 Cyc. 744; State v. Kyle, 166 Mo. 287. (2) Duncan, the section foreman, was as clearly the vice-principal of defendant as ever such fact occurred in any case. Burkard v. Leschen, 217 Mo. 446; Koerner v. Car Co., 209 Mo. 157; Edge v. Railroad, 206 Mo. 475; Reedes v. Crystal Co., 129 Mo.App. 107; Doss v. Railroad, 135 Mo.App. 643; Schmeiser v Central Co., 134 Mo.App. 493; Hagan v. Gibson Co., 131 Mo.App. 386; Knight v. Donelly, 131 Mo.App. 152; Combs v. Roundtree Co., 205 Mo. 367. (3) The employee in entering the services of the master does not assume the risks of injury caused by the master, or the negligence of the foreman; and that this injury was inflicted through the gross negligence and carelessness of the foreman is not disputed. Naughteen v. Laclede Co., 123 Mo.App. 192; Garner v. Railroad, 128 Mo.App. 406; Huston v. Railroad, 129 Mo.App. 576; Mack v Railroad, 123 Mo.App. 531; Kirby v. Coal Co., 127 Mo.App. 588.
W. F Evans, W. J. Orr and J. H. Orr for respondent.
(1) Under the uniform decisions of the Federal Courts, whose decisions were binding on all of the courts of the Indian Territory at the time of the accident, it makes absolutely no difference what kind of work was being done nor what Duncan was called, he was a fellowservant of plaintiff. The superior servant rule contended for by learned counsel in this case has never obtained in the Federal Courts since the old case of Ross v. Railroad, 112 U.S. 377, was overruled. Railroad v. Baugh, 149 U.S. 368; Railroad v. Conroy, 175 U.S. 343. (2) It is well settled that the defendant's liability is to be determined by the laws in force in the Indian Territory at the time of the accident. Root v. Railroad, 195 Mo. 348, 92 S.W. 621; Chandler v. Railroad, 106 S.W. 553; Gabriel v. Railroad, 115 S.W. 3; Fogarty v. Transit Co., 79 S.W. 664; Ham v. Railroad, 117 S.W. 108. (3) The courts of this State do not take judicial knowledge of the laws of a sister State, but such laws must be proven as a fact in the case. It is also well settled that those decisions and statutes which appear in the record as evidence of the foreign law are binding on the trial court, and the appellate court. Talbut v. Seeman, 1 Cranch 1; Coats v. Railroad, 134 Ill.App. 217; Hartman v. Railroad, 39 Mo.App. 97; Guaranty Co. v. Hilton, 77 N.E. 312; Kelly v. Kelly, 161 Mass. 111. (4) The plaintiff and James Duncan were fellow-servants under the decisions of the Federal Courts whose decisions were then binding on the courts in the Indian Territory. Railroad v. Peterson, 162 U.S. 346; Railroad v. Charles, 162 U.S. 359; Railroad v. Hambly, 154 U.S. 349; Randall v. Railroad, 109 U.S. 478; Railroad v. Bourman, 29 U. S. R. 319; Martin v. Railroad, 166 U.S. 402; Alaska Mining Co. v. Whelan, 168 U.S. 86; American Bridge Co. v. Seeds, 144 F. 605; Railroad v. Fishback, 123 F. 465; Thomas v. Railroad, 97 F. 245; Westinghouse v. Callahan, 155 F. 397; Vilter Mfg. Co. v. Otte, 157 F. 230; Portas v. Griffen, 160. F. 648. (5) Respondent contends that the Constitution became effective just as the enabling act provides from the date of the President's Proclamation, section 4, of the Enabling Act. Arie v. State, 100 P. 23; Parks v. Ada, 100 P. 607; Kelly v. McCombs, 102 P. 186; State v. Bridges, 94 P. 1065; Edwards v. Jewell, 104 P. 335; Kelly v. United States, 104 P. 922; Ex Parte Ellis, 94 P. 556; Turner v. Trial, 103 P. 577.
This was an action commenced in Howell county, Missouri, for damages in the sum of $ 7500 for personal injuries alleged to have been received by plaintiff by reason of the negligence of the defendant's servants. The answer set up a general denial, a plea of contributory negligence, assumption of risk, and, lastly, that the plaintiff was injured in the Indian Territory and that his right to recover damages and the defendant's liability for his injuries were dependent upon and to be determined by the law in force in the Indian Territory where the accident occurred.
At the conclusion of all the evidence, the court sustained a demurrer and peremptorily instructed the jury to find the issues in favor of the defendant, which, being done, and judgment entered thereon, the plaintiff appealed.
I. The accident happened at Sapulpa, Indian Territory, on November 2, 1907. The proclamation of the President of the United States declaring the Indian Territory a part of the newly organized State of Oklahoma was issued on November 17, 1907. One of the questions presented on this appeal is as to whether the Constitution and laws of the State of Oklahoma were in force on November 2, 1907. It has been agreed by the parties for the purposes of this trial that by the Act of Congress of May 2, 1890, the common law of England was extended over the Indian Territory so far as the same was applicable and of a general nature, and all of the statutes of Parliament in aid of or to supply the defects of the common law made prior to the fourth year of James the First, so far as applicable, of a general nature and not local to that kingdom. Section 250 of the Constitution of Oklahoma is as follows: So that the adoption of the Constitution of Oklahoma abolished the common law doctrine of fellow-servant.
The Constitution was adopted on September 27, 1907, at a general election held by the people for that purpose. The question is as to when the Constitution became effective, and it is to be determined by the Enabling Act of Congress which provides that in case a Constitution and State government shall be formed in compliance with the provisions of such Act, the convention forming the same shall provide by ordinance for submitting such Constitution to the people of such proposed State for ratification or rejection; and it was further provided in said Enabling Act that "if the Constitution and government of said proposed State are republican in form, and if the provisions of this Act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the result of such election and the statements of the votes cast thereon and a copy of said constitution, articles, propositions and ordinances, to issue his proclamation announcing the result of said election, and thereupon the proposed State of Oklahoma shall be deemed admitted by Congress into the Union under and by virtue of this Act on an equal footing with the original States."
The accident therefore occurred at a date between the adoption of the Constitution and the date of the proclamation of the President, and the proposition does not seem open for difference of view that under the express terms of the Enabling Act, when the President issued his proclamation announcing the result of the vote and adoption of the Constitution, the proposed State of Oklahoma was admitted as a member of the Union of States, and that the territories then and not until then passed into the condition of Statehood.
The general rule that constitutions and constitutional amendments take effect upon their ratification by the people, unless otherwise provided in the instrument itself or the resolutions submitting them, applies to sovereign States possessing within themselves the power to make and unmake constitutions but can have no application to territories which, under our system of government do not possess the power within themselves to initiate a separate form of government. The territories are under the absolute control of Congress, and can only become states and form for themselves laws or constitutions in the manner pointed out in the Enabling Acts. Hence, the accident having happened on the 2d day of November, 1907, and the President's Proclamation having been issued under the Enabling Act on November 17, 1907, the defendant's liability is to be determined by the law in force in the Indian Territory at the time of the accident.
II. The question to be determined in this case is whether under the evidence, James Duncan, the section foreman of the defendant, and the plaintiff as one of his men, were fellow-servants; that is, whether the relation between them, under the decisions of the Federal Courts, was such that the plaintiff assumed the risk of the negligence of his section foreman in the latter's direction of the men and work to the same extent that he assumed the risk of the negligence of a fellow-laborer by his side engaged in performing the work.
The evidence shows that some fifteen or twenty men worked under the direction of Duncan, among whom was the plaintiff; that the section foreman and his men performed all classes of work that they were directed to do about the track, such as repairing broken rails and keeping the road in safe condition for the operation of trains, sometimes putting in switches taking up track at one place and putting it down at another, their work pertaining to the tracks and roadbed. The section foreman usually employed men when the division superintendent was not...
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