Kansas City Southern Railway Co. v. Cook

• Decision Date: 23 October 1911
• Citation: 140 S.W. 579,100 Ark. 467
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. COOK
• Court: Arkansas Supreme Court

140 S.W. 579

100 Ark. 467

KANSAS CITY SOUTHERN RAILWAY COMPANY v. COOK

Supreme Court of Arkansas

October 23, 1911

Appeal from Little River Circuit Court; Jeff T. Cowling, Judge reversed.

Judgment reversed and cause remanded.

Read & McDonough, for appellant.

1. The amendatory act of April 5, 1910, does not prohibit the removal of this cause. Whether or not the action arises under the act of Congress must be determined from the allegations in the complaint; and if there is any doubt on the question it must be resolved against the plaintiff.

Where a party brings a suit and desires that it be brought under a certain act, it is necessary that his complaint make all allegations required by the act, so that no question can arise as to the suit being brought under that act. Decennial Dig., Master and Servant, § 256, cases cited; Id. Annual Digest, and cases cited below. The allegations of this complaint are not sufficient to show that the plaintiff bases his right to recover upon the act of Congress in question. 127 S.W. 1090; 179 F. 318; Id 175.

The allegation that plaintiff and defendant were engaged in interstate commerce at the time of the alleged injury is necessary, and can not be supplied by inference. 179 F. 318.

2. Even if the suit was brought under the act of April 5, 1910, that act does not prohibit the removal of the cause, and this also is a Federal question sufficient for removal of the cause. It is the right and duty of the National Government to have its Constitution and laws interpreted and construed by its own judicial tribunals. 6 Wall. 247; 99 F. 605; 49 Mo. 27; 201 U.S. 23.

The amendatory act does not change the original act of Congress authorizing suits to be removed where the defendant is a citizen of another State than that in which the suit was brought. The Constitution of the United States secures to such defendants an absolute right of removal of their case into the Federal courts upon compliance with the terms of the law. 20 Wall. 445; art. 3, sec. 2, Const. U. S.

Since plaintiff's right of recovery necessarily depends upon the proper construction of the act of April 22, 1908, as amended by the act of April 5, 1910, a Federal question, and since the petition was filed in apt time, accompanied with a bond as required by law, the court erred in refusing it. 87 U.S. 445.

3. The court erred in giving instruction No. 1. Appellee will not be permitted to occupy two inconsistent positions. If, as appellee contends, the suit is brought under the act of Congress, and not under the statute of Arkansas, then the act of Congress must be the sole guide for the determination of his rights, and that act does not make proof of injury by a moving train of the defendant prima facie proof of negligence on the part of defendant, thereby placing the burden upon it to show that it was not negligent. 167 F. 660. A State statute is wholly superseded by a Federal statute covering the same subject. Id; 207 U.S. 463.

4. The court should have given a peremptory instruction for appellant, because,

(a) The complaint does not state facts sufficient to constitute a cause of action against appellant, in that it fails to show that it failed in some duty owing to the appellee. A master is not liable for the servant's injury if the master was guilty of no negligence that proximately caused the injury. 76 Ark. 436; 77 Ark. 367; 41 Ark. 382. There is no implied warranty of the part of the master that the tools furnished the servant are sound and fit for the purposes intended. The master is only bound to use proper care in providing them. 35 Ark. 602; 44 Ark. 524; 46 Ark. 555.

(b) There is no evidence to support the verdict. It fails to show that appellee's injuries were due to any negligence on the part of appellant. Appellee's testimony only goes to show that the car floor dropped, and that he fell through and was injured. It does not show that there was any defect, nor that appellant had failed in any duty of inspection, nor that the defect, if any, caused the floor to fall. The circumstances detailed by him do not speak for themselves and authorize the jury to find for the appellee. The doctrine res ipsa loquitur does not apply. 181 F. 91. The testimony does not show that an inspection would have disclosed the defect.

(c) If appellee relies on the act of Congress, he cannot recover because that act is a nullity. 73 A. 754.

J. I. Alley and Elmer J. Lundy, for appellee.

1. There are sufficient allegations in the complaint to bring the cause within the act of Congress in question. It was not necessary to set out the exact language of the statute in order to bring the action within its purview. 98 Ark. 240. Neither was it necessary to allege that the particular car upon which the injury occurred was engaged in interstate commerce. It is sufficient if the train in which that car moved was engaged in interstate commerce. 184 F. 336; Id. 737, 739.

The right of removal is not a constitutional right, but statutory. 1 Kent's Com. (original) p. 396, 400, (10 ed.) 443, 447; 5 Wheat. 1, 26; 95 U.S. 185, 24 L.Ed. 427; 96 U.S. 201; 95 U.S. 187, 24 L.Ed. 428; 92 U.S. 10, 23 L.Ed. 524; 32 F. 708; 103 U.S. 610, 26 L.Ed. 507; 48 F. 596. See also 32 F. 708; 37 F. 821; 58 F. 977; 8 How. 441, 449, 12 L.Ed. 1151; 18 Wall. 577, 21 L.Ed. 919; 4 Dall. 10; 7 Cranch 506, 3 L.Ed. 421; 12 Peters 524; 3 How. 236, 245; 187 F. 949.

2. If appellee's contention is correct, then this is a State case, to be tried according to the rules, procedure and evidence in the State courts, although the case arose under the act of Congress, and instruction No. 1 was proper. 98 Ark. 240; 219 U.S. 35.

OPINION

McCULLOCH, C. J.

The plaintiff, J. H. Cook, instituted this action in the circuit court of Polk County against defendant, Kansas City Southern Railway Company, to recover damages sustained while plaintiff was at work in the service of defendant as a brakeman on a freight train. The action is brought under the act of Congress approved April 22, 1908, generally known as the "Employers' Liability Act," and the amendment thereto approved April 5, 1910.

It was alleged in the complaint and proved at the trial that the plaintiff was swing brakeman on a local freight train running from Texarkana, Texas, to Mena, Arkansas, and that he received his injuries in Little River County, Arkansas, while attempting, in the discharge of his duties, to pass over a dumpcar in the train which is alleged to have been defective and that the servants of the defendant were negligent in allowing the car to become defective. The allegations in the complaint as to negligence of the defendant and as to the manner in which plaintiff received his injuries are as follows:

"That when plaintiff received said injuries the train was moving at the rate of about 15 to 16 miles per hour, and plaintiff, in passing along on the cars in the same direction the train was moving, as was his duty to do, started to pass over and along the said National dumpcar, when the south right floor of said car fell or dropped with plaintiff, causing plaintiff to fall through and upon the ground while the said train was thus in motion, and plaintiff states and alleges that the said National dumpcar was defective in this, the cogs on the staff of the clutch of the roller shaft were defective, and the said roller shaft was sprung until the cogs on the wheel of the said roller shaft would not fit into the cogs on the winding shaft sufficiently well to hold up the said floor or to raise the same when down, and also that the cogs on the winding shaft were defective and would not fit into the cogs on the wheel of the roller shaft, and the cogs on the wheel of the roller shaft as well as the cogs on the wheel of the winding shaft were so defective and in such condition that it made it dangerous to use said car, and on account of such defective and dangerous condition of said car plaintiff states he received his injuries."

The plaintiff recovered damages below, and defendant appeals.

Within apt time defendant filed its petition and bond for removal to the circuit court of the United States on the ground of diverse citizenship of the parties, and also on the ground that a Federal question was involved in the controversy, being a construction of an act of Congress. The court overruled the petition for removal, and the cause proceeded to trial.

The amendment approved April 5, 1910, reads as follows:

"Under this act an action may be brought in a circuit court of the United States in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencement of such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States."

The statute in question provides: "That every common carrier by railroad, while engaging in commerce between any of the several States, * * * shall be liable for any damages to any person suffering injury while he is employed by such carrier in such commerce."

Now, it is insisted, in the first place, that the allegations of the complaint are not sufficient to show that the action was brought under the Federal statute, and that the petition for removal should, therefore, have been granted upon the ground of diversity of citizenship. It is true that the complaint did not at the time of the filing of the petition for removal state in so many words that it was brought under that statute. But that was not necessary, for the statement of facts in the complaint was sufficient to...