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

• Decision Date: 07 December 1909
• Docket Number: 1,891.
• Citation: 174 F. 938
• Parties: HERR v. ST. LOUIS & S.F.R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

174 F. 938

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

No. 1,891.

United States Court of Appeals, Fifth Circuit.

December 7, 1909

James Stone (Smith & Totten, on the brief), for plaintiff in error.

J. W Buchanan (W. F. Evans and S.W. Jones, on the brief), for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

This is an action by W. A. Herr, as the administrator of E. J. Herr deceased, against the St. Louis & San Francisco Railroad Company, in which the plaintiff claims damages for the negligence of the defendant in causing the death of E. J Herr. The case was begun in a state court, and was duly removed, on the ground of diverse citizenship, to the circuit court. The defenses presented were a denial of negligence by the defendant, and contributory negligence on the part of the deceased. After all the evidence had been presented, the trial court, on motion of the defendant, directed a verdict for the defendant. On such verdict being returned, judgment was entered for the defendant, and the plaintiff brings the case here, assigning as error the action of the court in directing the verdict.

Before considering the case on its merits, there are two motions to be disposed of.

The petition for writ of error filed in the court below prayed that the writ might be allowed 'in forma pauperis.' The order granting the writ was made in the usual form, but no bond was given as required by law. After this court acquired jurisdiction of the case and the record was filed and printed, the defendant in error, on February 2, 1909 moved to dismiss the case because the writ was prosecuted 'in forma pauperis.' The plaintiff in error moved for leave to file a proper bond for costs and presented one approved by the judge who presided in the court below, which was filed in that court February 16, 1909. It appeared that the plaintiff in error had advanced the costs for the printing of the record in this court. The position of the defendant in error is correct, that an appeal or writ of error cannot be prosecuted in this court in forma pauperis. But we hold that, the proceedings in all respects being regular, except the failure to give bond, and such bond being now tendered and in fact approved by the trial judge, the case should not be dismissed. The bond may be filed now to take effect as if it had been presented at the beginning of the appellate proceedings. It was held, in Brown v. McConnell, 134 U.S. 489, 8 Sup.Ct. 559, 31 L.Ed. 495, that the signing of a citation returnable to the proper term of the Supreme Court, but without acceptance of security, constituted the allowance of an appeal which enabled the court to take jurisdiction, and to afford the appellants an opportunity to furnish the requisite security in the appellate court.

The motion to dismiss is overruled, and the motion to be allowed to file bond for costs is granted.

This being an action for negligence causing death, it is, of course, dependent on a statute, as no action for death lies at common law. The action is authorized generally in Mississippi under circumstances where, if the death of the injured had not ensued, he would have had the right to sue. Code Miss. 1906, Sec. 721. The action is allowed by the husband or wife of the person killed, or by named kindred (Id. Sec. 721); or it may be brought by the 'legal or personal representative of the person injured' (Id. Sec. 4056). It will be well to note that the 'fellow servant rule' at common law has been so modified in Mississippi that it offers no impediment to the plaintiff's recovery. By constitutional provision it is declared that:

'Every employe of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employes, as are allowed by law to other persons not employes where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train of cars, or one engaged about a different piece of work. ' Const. Miss. 1890, Sec. 193.

And this provision is extended to the legal or personal representative of the person injured where death ensues from the injury. These constitutional provisions are confirmed by statute. Code Miss. 1906, Sec. 4056.

On the 23d day of September, 1907-- the day he was killed-- E. J. Herr was a conductor of the defendant railroad company. On that day he was ordered to run a freight train, known as 'extra No. 2690,' from Holly Springs, Miss., to Memphis, Tenn., having brought his train on that morning from Memphis to Holly Springs as a local freight. At the town of Byhalia, on his trip from Memphis to Holly Springs, he received the following order:

'Engine No. 2690, Herr, will run Extra from Holly Springs to Memphis.'

At the same time and place he received the following order:

'No. 256, Engine 736, will run four hours late from Tupelo to Redbanks, and three hours and thirty minutes late Redbanks to Memphis.'

At Holly Springs Herr received instructions to unload certain cars of stone at a place one and a quarter miles west of Redbanks, a station eight or nine miles west of Holly Springs and between that place and Memphis. Herr left Holly Springs going northwest with his extra train at 3:25 p.m., and arrived at Redbanks at 3:50 p.m., at which place he did some unloading and took the siding to allow a train to pass.

After a conference with the engineer of his train, it was determined that they would proceed to the place where the stone was to be unloaded. They, accordingly, left Redbanks with their train at 4:17 p.m., and proceeded to the place designated for the unloading of the stone, and there the extra train was stopped to be unloaded; it being understood, as some of the evidence tends to show, that the flagman was to be left at the west end of the switch at Redbanks to protect this extra train against train No. 256. The rules of the company require the flagman when his train is stopped on the main line, to go back immediately and protect the train with a flag. When the extra train stopped, the flagman, Flint, states that the deceased called to him and said, 'Kid, we have 25 minutes to unload'; and that he went back to flag and soon heard the approach of train No. 256; that he started on a run up the track towards Redbanks, and had run as far back as 10 telegraph poles when he saw the smoke of train No. 256 as it came out of Redbanks; that he then ran an additional 3 telegraph poles, giving the emergency signal, when he was answered by the engineer of train No. 256; that this made the distance of train No. 256 from the caboose of the extra train, when the engineer of No. 256 answered the emergency signal, 16 telegraph...