Jackson v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 14 February 1910
• Docket Number: 3,094.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: JACKSON v. CHICAGO, R.I. & P. RY. CO.

178 F. 432

JACKSON v. CHICAGO, R.I. & P. RY. CO.

No. 3,094.

United States Court of Appeals, Eighth Circuit.

February 14, 1910

On Rehearing, May 10, 1910.

The plaintiff brought this action in the state court against the defendant company and Peter Couture for the alleged wrongful act resulting in the death of plaintiff's intestate. On the ground of diversity of citizenship and an alleged separable controversy the case was removed on the petition of the railway company to the United States court. That court overruled a motion to remand. Thereupon plaintiff dismissed as to Couture by filing an amended petition against the railway company only.

Jackson the deceased, with five others, were sectionmen under Couture, their foreman, all of whom were engaged in the maintenance of six miles of track. The foreman employed and discharged the men as he deemed proper, and directed them in their work. Nearly all of the section was north of the village where they resided. They would leave for their work in the morning, carrying their dinners with them, and return in the evening. In going over their section, and to and from their work, they rode on a hand car of the company; the sectionmen propelling it.

Jackson had worked for the company under Couture for about five months. Upon several occasions Couture took his shotgun with him to shoot ducks and other game, solely for his own pleasure and benefit; the gun being in no wise of any service in his work. The gun and magazine held six shells. On the return home after the day's work on an evening in October, 1907, Couture fired three shots at some birds. He then withdrew two shells, thinking there were none left. Arriving at the station, Couture alighted, leaving the gun on the hand car. Jackson and the other five men went a short distance down the track to where the hand car was to be put away for the night. In taking the car from the track, in some unexplained way the remaining shell in the gun was exploded killing Jackson instantly.

Fitzgerald was the roadmaster. He employed and discharged the foremen. Fitzgerald went over his division every day or so, giving directions as to the maintenance of the roadway and track and seeing what work was necessary and what was done. It is possible that at times he saw the gun on the hand car, but that he did see it there is no evidence, and there is no evidence that he knew or believed the gun was loaded.

At the close of the evidence, on motion of the company, the court directed a verdict for the defendant, and there was a judgment accordingly.

George W. Berge, for plaintiff in error.

Paul E. Walker (M. A. Low, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and McPHERSON, cPHERSON, District judge.

SMITH McPHERSON, District Judge (after stating the facts as above).

1. For many years there has been in Nebraska a statute allowing a recovery for the death of a person caused by the wrongful act of another. The action must be brought in the name of the personal representative of the deceased, and the amount recovered shall be for the exclusive benefit of the widow and next of kin, and shall be distributed as though personal property left by deceased dying intestate. That statute applies generally to persons and corporations doing the wrongful act. The statute of limitations under that statute is two years. In 1907 the Legislature enacted that railway companies should be liable to any employe for an injury, or in case of his death to his representative, resulting from the negligence of any co-employe, officer, or agent, or by reason of any defect or insufficiency due to its negligence in its cars, appliances or machinery. Under this statute contributory negligence is no defense when slight and that of the company is gross, but the damages shall be diminished in proportion to the negligence attributable to each, and all questions of negligence shall be for the jury. No contract of insurance or relief benefit shall be a defense, except such contribution for relief benefit paid by the company may be deducted from the damages. The recovery shall be distributed as follows: (1) To the widow and children; (2) if no widow or children, to his parents; (3) if no parent, then to the next of kin dependent upon him.

The statute of limitations under this statute is four years. Under this statute Couture could not be liable, because it makes a railway company alone liable. If liable, it is by reason of the older statute.

Plaintiff's counsel invokes the rule agreed to by all that as to removals defenses cannot be considered, but whether the action is separable must alone be determined from the petition stating the cause of action. But we hold that the cause of action as stated by plaintiff is separable for the reason that the statute fixing the liability of a railway company is the later statute, and specifically and with detail determines the liability, to whom the recovery shall go, and what shall constitute a cause of action, and barring certain defenses which could be made under the former statute. And the rule is that when we have one statute of general application, and another applying to specific cases, that as to such specific cases the later statute only can be invoked. Griffith v Carter, 8 Kan. 565; Long v. Culp, 14 Kan. 412; In re Rouse (D.C.) 91 F. 96, 100; State ex rel., etc., v. Hobe, 106 Wis. 411, 82 N.W. 336; Kepner v. U.S., 195 U.S. 100, 125, 24 Sup.Ct. 797, 49 L.Ed. 114; De Bolt v. Railroad, 123 Mo. 496, 72 S.W. 575; Townsend v. Little, 109 U.S. 504, 512, 3 Sup.Ct. 357, 27 L.Ed. 1012.

The holding is that the case on the petition of the railway company, a corporation, of Iowa and Illinois, was removable as against the plaintiff, a citizen of Nebraska, even though Couture was likewise a citizen of Nebraska.

But even though the motion to remand was erroneously overruled, the error was cured when plaintiff filed an amended petition making the railway company alone a defendant. The error was waived and jurisdiction was conferred. Guarantee Co. v. Mechanics' Co., 26 C.C.A. 146, 80 F. 766, 771; In re Moore, 209 U.S. 490, 496, 28 Sup.Ct. 585, 52 L.Ed. 904; Powers v. Railroad, 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673.

2. Jackson had ridden back and forth on this hand car for five months. It was a safe place to work considering the duties of the employes, and the nature of the work, and the elaborate argument, with the authorities cited, that the company owed him the duty of furnishing a safe place to work, is not pertinent to the facts of the case. It was a safe place, and from which no harm came to Jackson, except by reason of the gun, which presents another question. And as to carrying the gun, he made no objection, knew that it had been used on several trips, knew that at times it was loaded, and knew that it had been fired three times en route home on the evening in question. He made no protests, was not promised that the gun would not again be carried, and in...