Johnston v. Chicago Great Western R. Co.

• Decision Date: 19 January 1914
• Parties: JOHNSTON v. CHICAGO GREAT WESTERN R. CO.
• Court: Missouri Court of Appeals

164 S.W. 260

JOHNSTON v. CHICAGO GREAT WESTERN R. CO.

Kansas City Court of Appeals. Missouri.

January 19, 1914.

Rehearing Denied February 16, 1914.

1. COURTS (§ 8) — JURISDICTION — ACTION UNDER LAW OF ANOTHER STATE — "COMITY."

"Comity," in a legal sense, is courtesy, the granting of a privilege, not of right, but of good will, subject to the limitation that where there is no case under the lex loci, there is none under the lex fori, and that where there is a case under the lex loci, there is one under the lex fori, and that in administering substantive laws of a sister state the courts administer them and not their own.

2. COURTS (§ 8) — JURISDICTION — ACTION UNDER LAW OF ANOTHER STATE — "POLICY OF LAW" — "PUBLIC POLICY."

A servant's action for injuries founded on the statutory law of Iowa may be enforced in Missouri without enlargement or abatement, as a matter of comity, where such cause of action is not opposed to the policy of its own laws; the terms "policy of the law" or "public policy" referring to the purpose and spirit of the substantive laws of a state, whether found in the constitution and statutes or in judicial records (citing Words & Phrases, vol. 6, pp. 5442, 5813, 5814; vol. 8, p. 7773).

3. MASTER AND SERVANT (§ 227) — ACTION UNDER LAW OF ANOTHER STATE — CONTRIBUTORY NEGLIGENCE — COMPARATIVE NEGLIGENCE.

In a servant's action for injuries founded upon the negligence of his fellow servants, as to which he would have had a right of action in Missouri, it was immaterial, so far as the recognition of his cause of action was concerned, that the statute of Iowa, in which the injury was sustained, recognized the rule of comparative negligence, even though such rule is against the spirit of the law of Missouri.

4. APPEAL AND ERROR (§ 1067) — HARMLESS ERROR — THEORY OF CASE.

In a servant's action for injuries founded upon the negligence of his fellow servants in Iowa, where the statutory rule of comparative negligence obtains, and in which defendant voluntarily chose the rules of Missouri as to its affirmative defense of contributory negligence upon which the case was submitted, defendant was not prejudiced by the failure to submit the issue of comparative negligence; such omission inuring rather to its advantage.

5. MASTER AND SERVANT (§ 228) — FEDERAL SAFETY APPLIANCE ACT — VOLUNTARY FAILURE TO USE COUPLING DEVICE.

Under the Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), as amended March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1911, p. 1314), requiring railroads to equip all cars in interstate traffic with automatic couplers, a brakeman on a ballast train, on an interstate railroad where the dust from the ballast filled the pinhole and packed the coupling in so that it could not be removed by the automatic lever, who under his master's order abandoned the use of such lever and went between the ends of the cars to remove the coupling pin by hand, was not guilty of negligence contributing to his injury when negligently run down by the rear part of the train.

6. MASTER AND SERVANT (§ 289) — ACTION FOR INJURIES — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

Whether a brakeman was negligent in pulling out the coupling pin between two cars before he disconnected the air hose to set the brakes on the rear end of the train, which ran down upon him was for the jury.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Arch Johnston against the Chicago Great Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Hagerman, E. E. Ball, and Clyde Taylor, all of Kansas City, for appellant. Boyle & Howell and Joseph S. Brooks, all of Kansas City, for respondent.

JOHNSON, J.

Action by a servant to recover damages for personal injuries he alleges were caused by negligence of his master. A trial in the circuit court resulted in a verdict and judgment for plaintiff, and the case is here on the appeal of defendant.

The injury occurred September 15, 1911, in Iowa, on an interstate railroad operated by defendant. Plaintiff was the head brakeman of a work train engaged in hauling gravel from South Des Moines for use in ballasting the road. The scene of the injury was about 65 miles from Des Moines, and the train, which included 11 ballast or dump cars, was under orders to complete a round trip in 16 hours. The dump cars were so constructed as to allow the ballast to be emptied gradually from openings on each side of the car at the bottom, and it was customary to move the train forward slowly, while unloading a car, to properly distribute the ballast along the sides of the track. Very often, perhaps a dozen times or more during the process of unloading the train, the ballast, from various causes, would become clogged so that it would not flow from the car, and in such instances the remedy applied consisted of stopping the train, and, after uncoupling it at the rear end of the car being unloaded, to pull the car forward a short distance and then push it back to a violent collision with the rear end of the train, which consisted of the unemptied cars. Generally the impact of the collision would unclog the ballast, and it would recommence flowing from the openings in the car to the track sides. The cars were of modern and approved construction, and were equipped with air brakes and automatic couplers.

It is conceded that all such devices on this train were properly constructed and free from dangerous defects. The parts of a coupler would unite automatically without human aid, and were equipped with a mechanism operated by a hand lever that projected to the side of the car, and was designed to be used by the brakeman in withdrawing the coupling pin to disconnect the coupler. While the fifth car from the engine was being unloaded and the train was moving forward at slow speed, the ballast became clogged, and it was decided to resort to the process of "bumping" we have described in order to remove the obstruction. Accordingly the train was stopped on a signal from plaintiff, who immediately went between the cars to disconnect the air hose and pull the coupling pin. The air brakes were under the control of the engineer, and in stopping a train of that kind he could use all the brakes on the train, or those on the locomotive alone. Generally all the brakes were used, and it appears from the evidence of plaintiff that in this instance, owing to the fact that the track was on a slight grade, it was necessary to employ all the brakes to prevent the detached part of the train from moving downgrade in the wake of the forward part. On each side of the air hose joint there was a cock, called an angle cock, that was kept open when the hose was connected between two cars to allow the air to pass through the pipe, and closed when the hose was uncoupled to prevent the escape of the air and to keep the brakes set on the detached cars, but when the engineer used only the brakes on the engine, and did not set the brakes on the cars, it was immaterial whether the angle cocks were opened or closed.

Plaintiff's conduct shows that he acted on the supposition that the general custom of setting the brakes on the cars to be detached was being followed. After going between the cars, his first act was to close the forward angle cock with his right hand, then he pulled the coupling pin, and immediately reached with his left hand to close the rear angle cock to prevent the escape of the air from the rear cars and the consequent releasing of their brakes. The cock resisted his effort, and he was compelled to shift his position in order to close it. By the time he succeeded in closing it, the forward part of the train had pulled forward several feet from the detached cars, and as the engineer had not set all the brakes, but was using the engine brakes only, there was nothing to hold the detached cars stationary, and they moved toward a collision with the front end, catching plaintiff's right hand in the coupler and mashing it.

The petition pleads the fellow servant statute in Iowa which, for present purposes, may be said to be the same as our own, and also pleads the section of the enactment which deals with the subject of contributory negligence and establishes the rule of comparative negligence in that state. The specific charges of negligence are "that it is customary and proper to use said automatic...