Johnson v. St. Joseph Terminal Ry. Co.

• Citation: 203 Mo. 381,101 S.W. 641
• Parties: JOHNSON v. ST. JOSEPH TERMINAL RY. CO. et al.
• Decision Date: 28 March 1907
• Court: United States State Supreme Court of Missouri

101 S.W. 641

203 Mo. 381

JOHNSON v. ST. JOSEPH TERMINAL RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. REMOVAL OF CAUSES—SEPARABLE CONTROVERSIES.

In an action by a widow, under Rev. St. 1899, § 2864 [Ann. St. 1906, p. 1637], to recover the statutory penal sum for the death of her husband, against a foreign railroad corporation and against a domestic terminal railroad company, the complaint alleged that a train belonging to the foreign corporation, while running over the tracks of the domestic corporation, ran over decedent, the train having been running at an unlawful rate of speed, and the operatives having failed to give the warning signals required by law, and that, under the traffic agreement between the corporations, the operatives of the train were, though in the employ of the foreign corporation, subject to the orders and directions of the domestic corporation. Held, that an application to remove the cause to the federal court on the ground that the cause of action so far as the foreign corporation was concerned was separable, and that the domestic corporation was fraudulently joined, was properly denied.

2. MASTER AND SERVANT—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — INJURY AVOIDABLE NOTWITHSTANDING.

In an action for the death of a section hand who was run over while sweeping snow from a frog, it appearing that the operatives of the locomotive could have seen decedent in his place of danger in time to have averted it by stopping the train or blowing the whistle, but that no efforts in such direction were made, the humanitarian doctrine applied, and, conceding contributory negligence on the part of decedent, there might be a recovery irrespective of wantonness and recklessness on the part of defendant.

3. SAME — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for death of a section hand who was run over while sweeping snow from a frog, the question of contributory negligence held one for the jury.

4. DEATH—RIGHT OF PLAINTIFF TO SUE—PRESUMPTION.

In an action by a widow, under Rev. St. 1899, § 2864 [Ann. St. 1906, p. 1637], to recover the statutory penal sum for the death of her husband, it appearing that plaintiff and decedent were married in due form of law, but that decedent had previously been married to another woman, the burden was on defendant to show the invalidity of the marriage to plaintiff.

5. TRIAL—INSTRUCTIONS—ISSUES.

Where, in an action for death, the facts show the "humanitarian doctrine" applicable, an instruction on the whole case was not erroneous because it omitted the elements of contributory negligence.

6. DEATH—LIABILITY—JOINT LIABILITY.

Rev. St. 1899, § 2864 [Ann. St. 1906, p. 1637], provides that whenever any person shall die from any injury occasioned by the negligence of any servant or officer, while running any train of cars, the corporation in whose employ such officer or servant shall be or who owns any such train, etc., shall forfeit a certain sum. Held, that where a railroad company in entering a city used the tracks of another corporation which conducted a terminal railway, under the terms of a contract which amounted to a leasing of the tracks of the terminal company, and a section hand, employed by the railroad, was killed by one of its trains while running over the tracks of the terminal company, the corporations were jointly liable.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Viola A. Johnson against the St. Joseph Terminal Railway Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, James P. Gilmore, and R. A. Brown, for appellants. Mytton, Parkinson & Crow, for respondent.

GRAVES, J.

Plaintiff is the alleged widow of John C. B. Johnson, deceased. Petition was filed within the time allowed by statute, but, as originally filed, asked for but $2,000 damages. Later it was amended so as to make the ad damnum clause read $5,000, instead of $2,000. The action is therefore the statutory action, under section 2864, Rev. St. 1899 [Ann. St. 1906, p. 1637], to recover the penal sum of $5,000, due the wife for the negligent killing of her husband. Defendant St. Joseph Terminal Railroad Company is a Missouri corporation, and defendant Atchison, Topeka & Santa Fé Railway Company is a Kansas corporation. Johnson was a sectionman in the employ of the terminal company. He was run over and killed by a Santa Fé train, within the limits of the terminal company's switch yards in the city of St. Joseph. Defendant Santa Fé Company filed its application and bond for the removal of the cause to the United States Circuit Court at St. Joseph, Mo. This application was, by the trial court, overruled. It might be well to state here that plaintiff had on February 19, 1903, brought a previous suit, which had been transferred to the federal court, but this suit was dismissed by plaintiff in the federal court at the September term, 1903, and this suit brought December 14, 1903. The failure of the state court to transfer the present suit to the federal court is urged as error. The application for removal was in due form, and alleged that the cause of action, so far as the Santa Fé Company was concerned, was a separable cause of action from the one alleged against the terminal company, and that the terminal company was fraudulently joined in an attempt to deprive the Santa Fé Company of its right to transfer said cause to the federal court.

The allegations of the petition, in so far as are necessary for the opinion, are as follows: "Plaintiff states that on or about the 18th day of December, 1902, a train of cars attached to a locomotive engine, the property of the Atchison, Topeka & Santa Fé Railway Company, passed along over the railroad tracks belonging to the Atchison, Topeka & Santa Fé Railway Company to the southern limits of St. Joseph and passed from said railroad tracks belonging to said Atchison, Topeka & Santa Fé Railway Company to the tracks of the defendant St. Joseph Terminal Railroad Company. Plaintiff further states that, by a traffic arrangement between said defendant companies, immediately upon said locomotive engine and train of cars entering upon the tracks and roadway of the said terminal railroad company, the servants, agents, and employés in charge of said train became subject to the orders and directions of both the St. Joseph Terminal Railroad Company and the Atchison, Topeka & Santa Fé Railway Company; that said agents, servants, and employés were in the employ of the said Atchison, Topeka & Santa Fé Railway Company, but were also compelled to obey the orders and directions of the St. Joseph Terminal Railroad Company while said locomotive engine and train of cars were upon its tracks. Plaintiff states that, after passing from the tracks of the Atchison, Topeka & Santa Fé Railway Company and onto the tracks of the St. Joseph Terminal Railroad Company, the said defendants both had full, complete, and absolute control of said locomotive engine and train of cars, and from the time of entering the said yards of the terminal railroad company said locomotive engine and train of cars was under the joint direction and control of defendants. Plaintiff states that under the direction and orders of the defendants, Atchison, Topeka & Santa Fé Railway Company and the St. Joseph Terminal Railroad Company, said locomotive engine and train of cars passed from the southern limits of said city of St. Joseph over and upon the tracks of the defendant St. Joseph Terminal Railroad Company up to and north of Hickory street in said city of St. Joseph, Mo., without sounding any whistle during all of said time, or ringing any bell, and at a rate of speed in excess of 20 miles per hour; and that during all of said time said locomotive engine and train of cars was within the corporate limits of the city of St. Joseph and under the joint control and direction of the defendants herein as above alleged. Plaintiff states that from the southern limits of the city of St. Joseph to north of Hickory street said locomotive engine and train of cars passed over and across Hickory street and many other streets between said Hickory street and the southern limits of said city of St. Joseph, Mo. Plaintiff states that it was the duty of the agents, servants, and employés of defendants herein and of the companies who had control and direction of said servants to ring a bell continuously from the time said locomotive engine and train of cars entered the corporate limits of the city of St. Joseph, and to blow a whistle at the crossing of each street in said corporate limits, and to not run said locomotive engine and train of cars at a rate of speed exceeding five miles per hour; that the above duty is enjoined upon defendants by section 1 of chapter 81 of the General Ordinances of the City of St. Joseph, Mo., 1897, and section 6 of chapter 61 of said ordinances; that it was the duty of defendants to cause their employés who were under their control and direction to obey the provisions of said ordinances above referred to. Plaintiff further states that said defendant companies failed and refused to obey the provisions of said ordinances as above set forth. Plaintiff further states that on the morning of the 18th day of December, 1902, a heavy snowstorm producing what is commonly called a blizzard was prevailing in St. Joseph, Mo., and about 10 o'clock on the morning of said day it became the duty of John C. B. Johnson to sweep and clean out the snow and remove the dirt from the frogs, switch junctions, and roadbed of defendant St. Joseph Terminal Railroad Company in the city of St. Joseph in its yards at a point 100 feet north of Hickory street in said city. Plaintiff says that prior to and at said 18th day of December, 1903, plaintiff and John C. B. Johnson were husband and wife. Plaintiff states that, for a distance of several hundred...