George v. Quincy, O. & K. C. R. Co.

• Decision Date: 28 March 1913
• Citation: 155 S.W. 453,249 Mo. 197
• Parties: GEORGE v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Supreme Court

155 S.W. 453

249 Mo. 197

GEORGE v. QUINCY, O. & K. C. R. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

1. COURTS (§ 231) — JURISDICTION — SUPREME COURT — AMOUNT INVOLVED.

A judgment for $3,000 is insufficient in amount to confer jurisdiction on the Supreme Court.

2. COURTS (§ 231) — SUPREME COURT — JURISDICTION — CONSTITUTIONAL QUESTIONS — TIME TO RAISE.

Where it was conceded, in an action for a brakeman's death, that it was based upon the employer's statutory liability for failure to furnish safety switch appliances and guard rails (Rev. St. 1909, §§ 3163, 3164), defendant should have alleged the unconstitutionality of the statute in its answer, if it desired to raise the question, and, by not raising it until on motion for a new trial, it thereby waived the question, so that the Supreme Court could not take jurisdiction on that ground.

Error to Circuit Court, Adair County.

Action by Henry C. George, administrator of Andrew P. George, deceased, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant brings error. Cause transferred to Kansas City Court of Appeals.

J. G. Trimble, of Kansas City, Mo., and Campbell & Ellison, of Kirksville, for plaintiff in error. C. E. Murrell, of Kirksville, and Fogle & Fogle, of Lancaster, for defendant in error.

GRAVES, J.

This cause reaches us by our writ of error to the circuit court of Adair county. Andrew P. George, a brakeman in defendant's employ, was run over and killed by a train of the defendant. At the time he was attempting to couple cars in this train, which was doing some switching near the depot in Kirksville, Mo. His foot was caught in an unblocked frog, and in this position he was run over and killed. With the view we have on the question of jurisdiction, but few facts need to be stated.

Verdict and judgment was in the sum of $3,000. From the amount it is clear that we have no jurisdiction. Our jurisdiction is dependent upon an alleged constitutional question. If such question was timely and properly raised, the jurisdiction would be here rather than elsewhere. This calls for a little fuller statement.

Plaintiff's petition is in two counts. By one the action is squarely planted under our statutes as to blocking the frogs of switches. By the other we have a common-law count of an unsafe place in which to work. This latter count was dismissed, and the case submitted on the statutory count. Going to that, the plaintiff in error has thus stated its case: "Deceased was a brakeman working for defendant on November 7, 1907, at the time of his death. The petition charged that his death was caused by his foot getting caught in an unblocked frog `in defendant's yards, and where the trains were made up in the city of Kirksville, Mo.,' and by the train of defendant while he was engaged in an attempt to couple a car therein, and while such train was being made up, running over, crushing, and immediately killing him while his foot was so caught and held in said unblocked frog. This suit is based upon sections 3163 and 3164 of the Revised Statutes of Missouri. Defendant, in an amended answer, pleaded a general denial and the...