Kansas City Southern Railway Company v. McGinty

• Decision Date: 22 July 1905
• Citation: 88 S.W. 1001,76 Ark. 356
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. MCGINTY
• Court: Arkansas Supreme Court

88 S.W. 1001

76 Ark. 356

KANSAS CITY SOUTHERN RAILWAY COMPANY v. MCGINTY

Supreme Court of Arkansas

July 22, 1905

Appeal from Sebastian Circuit Court, Fort Smith District STYLES T ROWE, Judge.

Reversed.

STATEMENT BY THE COURT.

This action was brought by Ida L. McGinty in her own right and as next friend of Lucretia A. McGinty, Bernice W. McGinty and Lois L. McGinty, against the Kansas City Southern Railway Company to recover judgment for the damages to them caused by the killing of Joseph W. McGinty by the negligent operation of defendant's railway. Ida L. is the widow of the deceased, and Lucretia A., Bernice W. and Lois L. McGinty are minors, and the children of Joseph W. and Ida L. McGinty. The widow and children are residents and citizens of the Indian Territory, and the defendant is a corporation created and existing by virtue of the laws of the State of Missouri, and operates a railway from the city of Fort Smith, Arkansas, to the town of Spiro, in the Indian Territory, and from thence to the town of Panama, in the same territory, and elsewhere. The action was brought in the Sebastian Circuit Court for the Fort Smith District. Plaintiff alleged in their complaint the foregoing facts and as follows:

"That upon the 9th day of October, 1900, the said Joseph W. McGinty was at the station of Spiro, Indian Territory, and desired to take passage upon the train of the defendant railway company from said station of Spiro to the station of Panama, Indian Territory.

"That the defendant railway company was operating a passenger train from said station of Spiro to the station of Panama, and inviting the public to take passage upon said train, which was what is commonly designated a local freight, and which said local freight carried passengers for hire.

"That the said Joseph W. McGinty went to the station of the defendant railway company at Spiro, Indian Territory, to take passage upon said train to the station of Panama, Indian Territory, at the time when the said train was about to leave said station at Spiro for said station of Panama, and at the usual place of taking passage upon said train, and that he was in the act of embarking thereon as a passenger when the defendant carelessly, negligently and without due regard for the safety of said passenger, caused said train to be suddenly and violently jerked backwards, thereby causing the said Joseph W. McGinty to be thrown under the wheels of said train, whereby he was instantly killed; that the employees of the defendant railway company did see, or by the exercise of ordinary care and caution could have seen, the said Joseph W McGinty was in the act of taking passage upon said train when said employees caused the same to be violently and suddenly jerked backward.

"That the plaintiff as widow, and the said minor children, have been damaged by the loss of the life of the said husband and father in the sum of $ 25,000."

The defendant, on September 9, 1901, it being the first day of the Sebastian Circuit Court for the Fort Smith District held after the commencement of the action, filed a petition and bond, asking for the removal of the action to the United States Circuit Court for the Western District of Arkansas.

The first ground of removal is that the parties are citizens of different States, the plaintiffs being citizens and residents of the Indian Territory, and the defendant a citizen and resident of the State of Missouri, it being organized under the laws of that State; and the second ground is stated as follows in petition: "The property of the defendant against which this action is leveled is located in the county of Sebastian, Fort Smith District, and State of Arkansas, in which county this suit is brought and is now pending. Under the laws of the State of Arkansas, * * * judgment, if obtained, will be a lien on property of the defendant located in the Fort Smith District of Sebastian County. The plaintiffs in their complaint ask for judgment against your petitioner for the sum of $ 25,000, and also pray other and general relief; and part of the relief to which the plaintiffs are entitled under that prayer is that said judgment, if obtained, can be declared a lien on all the property of your petitioner located in the Fort Smith District of Sebastian County and State of Arkansas. And therefore, the plaintiffs seek to have judgment declared a lien against defendant's property located in said county and district."

This petition was denied. Thereafter an amended petition was filed, and it, being filed out of time, was also denied; the time to plead or answer plaintiff's complaint allowed by the statutes having expired. The defendant then answered denying the allegations of the complaint and alleging contributory negligence. Evidence was adduced in the trial of the case which tended to prove the following facts:

On the 9th day of October, 1900, a freight train of the defendant, with caboose attached, in which passengers for hire were carried, stood upon the track at the station of Spiro, in the Indian Territory. The caboose was a little north of the door of the station. The defendant's employees rearranged the train, taking out and putting in cars. When this work was about completed, Joseph W. McGinty approached the caboose, put one foot on its step as if in the act of entering it, and stood with his foot in that position, with the other on the platform, and one hand on the shoulder of a friend, and so stood for a few minutes talking to the friend; and while he was standing in this position the train was moved back suddenly for the purpose of coupling cars, he was knocked down by the movement, jerked under the train, and killed.

Mrs. Ida L. McGinty was his wife, and the other plaintiffs were his children.

The court gave the following among other instructions, over the objections of the defendant, to the jury:

"12. If the position in which deceased was standing, with one foot on the platform of the station and one foot on the step of the caboose, in any many contributed to his death, then he was guilty of contributory negligence; and the plaintiffs in that event are not entitled to recover in this action, unless the defendant discovered, or in the exercise of ordinary care and caution ought to have discovered, the dangerous position of deceased, if he was in a dangerous position."

And the defendant asked the following instruction:

"12. If the position in which deceased was standing, with one foot on the platform of the station and one foot on the steps of the caboose, in any manner contributed to his death, then he was guilty of contributory negligence, and the plaintiffs in that event are not entitled to recover in this action." And the court modified it by adding the following words, "unless the defendant discovered, or in the exercise of ordinary care and caution ought to have discovered the dangerous position of deceased, if he was in a dangerous position," and, over the objection of the defendant, gave it as modified.

The attorney for the plaintiffs, in his opening argument before the jury, said:

"And I say to you, gentlemen of the jury, that, even if you should find that Mr. McGinty's position, as described to you by the witness in this case, was the most negligent position on earth, still you should not find for the defendant."

The defendant objected, and plaintiffs' attorney further said: "You did not wait until I had finished. I was going to say further that it was the duty of the employees of the railroad company to warn him. My argument is this. * * * I want the court to hear it. My argument is this: I do not care, for the purposes of this suit, whether McGinty was guilty of the most negligent act possible in having his hand upon the railing and his foot upon the step; for, under the evidence in this case, and under the instructions of the court, if the employees of the railway company saw him in that position, or by the exercise of ordinary care could have seen him in that position, then the railroad company should have warned him, and they were guilty of negligence. I ask the court if there is anything wrong in that argument."

The defendant objected, and the court said: "I think he can argue that." And the defendant excepted.

The plaintiffs recovered judgment, and the defendant appealed.

Reversed and remanded.

S. W Moore and Read & McDonough, for appellant.

The court erred in overruling the petition as amended for removal to the Federal court. 155 U.S. 404; 67 Ark. 295; 61 F. 757; 122 F. 588; 123 F. 827; 158 U.S. 41; 160 U.S. 77; 119 U.S 473; 140 U.S. 406; 151 U.S. 685; 121 U.S. 421; 169 U.S. 101; 113 U.S. 595; 68 F. 176; 117 F. 593; 105 F. 530; 92 F. 209; 84 F. 413; 104 F. 929; 69 F. 68. The court erred in overruling the motion to quash the service. 11 N.Y. 524; 99 Tex. 107; 78 Tex. 17; 40 Ga. 206; 14 Johns. 134; 17 Ark. 43; 67 Ark. 295; 7 Tenn. 151; 30 U.S. Stat. 497; 148 U.S. 691; 135 U.S. 641; 118 U.S. 375; 4 How. 567; 187 U.S. 294, 553; 138 U.S. 157; 64 Ark. 72; 6 Blackf. 125; 33 Cal. 212; 7 Ind. 519; 34 N.W. 85; 28 Fed. Cas. 397; 5 Wall. 737; 4 Dill. 387, 397; 71 F. 576. It was error to permit the plaintiff to testify as to the amount of property deceased had at his death. 57 Ark. 306; 60 Ark. 550. Also to admit the conversation between the deceased and bystanders at the station before the accident. 55 Ark. 248; 47 Ill.App. 484. The court's instruction upon the definition of a passenger was error. Hutch. Car. § 562; 63 Ark. 491; 67 Ark. 53; 51 Conn. 143; Hutch. Car. § 562; 139 Mass. 238; 68 Miss. 643; 52 Am. Rep. 705; 58 Am. & Eng. R. Cas. 4. The court erred in telling the jury that deceased's intoxication must have been the proximate cause of the injury before they could find that he was guilty of contributory negligence. 36...