Ham v. St. Louis & San Francisco Railroad Company
| Decision Date | 09 March 1909 |
| Citation | 117 S.W. 108,136 Mo.App. 17 |
| Parties | HAM, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
W. F Evans and Moses Whybark for appellant.
(1) This plaintiff also introduced sections 6658 and 6660, on page 1383, of the same Digest of the Laws of Arkansas. This was all the evidence of the law of Arkansas introduced and as the injury happened in that State and the suit was a common law action brought in the courts of Missouri, the common law obtaining in the State of Arkansas will govern. Root v Railroad, 195 Mo. 370; Lee v. Railroad, 195 Mo 415; Chandler v. Railroad, 127 Mo.App. 47; Fogarty v. Transfer Co., 180 Mo. 490; Railroad v. Babcock, 154 U.S. 197. (2) And although the law of Missouri gives a right of action to a servant for an injury sustained through the negligence of a fellow-servant, the action cannot be maintained in Missouri if the law of the State of Arkansas, where the injury occurred, does not give such right of action, and there is no evidence in this record that the laws of Arkansas provide for an action in cases like the one at bar. Jones v. Railroad, 7 Am. and Eng. Ann. Cases, 256, 258; Chandler v. Railroad, 127 Mo.App. 34; Root v. Railroad, 195 Mo. 348, 369; Burdict v. Railroad, 123 Mo. 221. (3) If the statutes of Arkansas provide a remedy in favor of a servant injured by the negligence of his fellow-servant, to enforce it in this State the plaintiff should bring his action showing that the laws of the State, where the injury occurred, gave him such action. Benedict v. Railroad, 104 Mo.App. 223; Depuy v. Railroad, 110 Mo.App. 110; Williams v. Railroad, 106 Mo.App. 61.
Von Mayes, Duncan & Bragg for respondent.
(1) Appellant's first contention is that the State of Arkansas was never subject to the laws of England; and in order to show that the common law was in force in that State, introduced section 623 of chapter 21, Kirby's Digest of the Statutes of Arkansas. Respondent's petition was drawn so as to bring his action within the provisions of the laws in force in this State. Appellant's answer was a general denial; a plea of contributory negligence, and the assumption of risk incident to the nature of plaintiff's employment. The issues being made on these pleadings, the introduction of the section above referred to constituted no evidence responsive to the issues and therefore was wholly immaterial and should receive no consideration in a review of this case. Agrl. & Mech. Assn. v. Delana, 108 Mo. 217; Pattison, Code Pleading, p. 324, chap. 23, sec. 622; Commission Co. v. Vanstone, 62 Mo.App. 241; Gibson & Bros. v. Jenkins, 97 Mo.App. 43 (2) Appellant contends that as the injury happened in Arkansas and the suit was a common law action, brought in the courts of Missouri, the common law obtaining in the State of Arkansas will govern. Respondent contends that the suit is not a common law action, but is an action in which relief is sought under the statutory laws of the State of Missouri, and as Arkansas was never originally subject to the laws of England, the laws of this State will be applied under the pleadings. McManus v. Railroad, 118 Mo.App. 161; Waite v. Bartlett, 53 Mo.App. 378; Burdict v. Railway, 123 Mo. 229; Flato v. Mulhall, 72 Mo. 522; White v. Chaney, 20 Mo.App. 389; Bain v. Arnold, 33 Mo.App. 631; Brokerage Co. v. Stevenson, 160 Mo. 516. (3) The laws of Arkansas, being new matter, must be both pleaded and proved in order that same may be available as a defense to this action. Pattison, Code Pleading, p. 107, chap. 8, sec. 169; McDonald v. Bankers Life Assn., 154 Mo. 618; Williams v. Railway, 123 Mo. 573. The defendant by its answer accepted the issues of fact as tendered in the petition in the form as tendered, and upon these issues the case was tried in the lower court, and will be the only issues reviewed by this court. Lee v. Railway, 195 Mo. 400; Cumiskey v. Williams, 20 Mo.App. 606; Aultman & Taylor Co. v. Smith, 52 Mo.App. 351; Whitlock v. Appleby, 49 Mo.App. 297; Electric Co. v. Lewis, 86 Mo.App. 612.
This plaintiff was injured by being crushed between a freight car on which he was working as a brakeman, and another freight car standing on a sidetrack. Plaintiff was riding at the time on a ladder on the side of one of several freight cars hitched to an engine and constituting part of the train he was attached to as a member of its crew. This portion of the train had been detached from the rest in order to run out on a switch and pick up some idle cars. A spur track connected with this switch and two freight cars were standing on this spur track so close to the switch track that plaintiff, while riding past and hanging on the ladder at the side of the car was mashed between the car he was on and the one on the spur track. The two cars on the spur track had been set out by the crew of another of defendant's trains some days before the accident and were negligently placed so close to the switch track as not to be "in the clear," to use the expression of the witnesses; that is to say, they were so close as to endanger members of train crews who had to attend to their duties about the intersection of the two tracks. The scene of the accident was at Blythesville in the State of Arkansas. The defenses were a general denial, contributory negligence on plaintiff's part, and assumption of the risk by him. What we have said indicates we think that the issues of defendant's negligence and plaintiff's contributory negligence were for the jury. Counsel for defendant say plaintiff assumed the risk of injury, because, if it is to be ascribed to the negligence of any of defendant's employees, the train crew who set the cars too close to the switch track were to blame and these employees were, at common law, coservants of plaintiff. Prima facie, and on the facts before us, they were fellow-servants according to direct decisions. [Schaub v. Railroad, 106 Mo. 74; see, also, 2 Labatt, Master and Servant, 1364, note c; Randall v. Railroad, 109 U.S. 478.] An issue of fact about this matter was submitted to the jury, but under advice concerning who were fellow-servants which is not asserted by respondent's counsel to have been an accurate statement of the common law doctrine on the subject. In truth the definition given in the instruction was according to section 2875 of the Missouri Revised Statutes of 1899. Why this statutory definition of fellow-servants was given in a charge to the jury is not clear; for one statute on which respondent's counsel claim their action is founded, makes a railway company answerable for an injury done to an employee by the negligence of a co-employee; whereas the court below, as the condition of a verdict for plaintiff, required the jury to find his injury was not due to the negligence of a fellow-servant. If our statutes govern the matter, this charge was unfair to plaintiff, and if they do not, then the definition of a fellow-servant was unfair to defendant, which, in that event, was entitled to have the fellow-servant question determined by the common law, or perchance, by some Arkansas statute enacted, like ours, to alter the common law. Defendant offered in evidence a statute of Arkansas which declared the common law of England, so far as the same was applicable and of a general nature, and all statutes of the British Parliament in aid of, or to supply the defects of the common law, enacted prior to the fourth year of James First, that are applicable to our form of government and not local...
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