Kansas City Southern Ry. Co. v. Cook

• Decision Date: 23 October 1911
• Citation: 140 S.W. 579
• Parties: KANSAS CITY SOUTHERN RY. CO. v. COOK.
• Court: Arkansas Supreme Court

140 S.W. 579

KANSAS CITY SOUTHERN RY. CO. v. COOK.

Supreme Court of Arkansas.

October 23, 1911.

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

Action by J. H. Cook against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Read & McDonough, for appellant. J. I. Alley and Elmer J. Lundy, for appellee.

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 employer's 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, Tex., to Mena, Ark., and that he received his injuries in Little River county, Ark., while attempting, in the discharge of his duties, to pass over a dump car in the train, which is alleged to have been defective, in 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 dump car, 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 dump car 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 persons suffering injury while he is employed by such carrier in such commerce." Section 1.

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 bring the case within the terms of the statute. St. L., I. M. & S. Ry. Co. v. Hesterly, 135 S. W. 874; Cound v. Railway Co. (C. C.) 173 Fed. 527; Clark v. Southern Pacific Co. (C. C.) 175 Fed. 122; Whittaker v. Illinois Cent. R. Co. (C. C.) 176 Fed. 130.

It is stated in the first paragraph of the complaint that the defendant is a Missouri corporation, and was, on the 4th day of May, 1910 (the date of the injury), engaged "as a common carrier of commerce by railroad between the states of Missouri, Kansas, Oklahoma, Arkansas, Texas, and Louisiana, and that said line of railroad runs over, through, and across the counties of Little River, Sevier, and Polk, in the state of Arkansas." The next paragraph reads as follows: "Plaintiff further states that, on the said 4th day of May, 1910, he was an employé of said defendant railway company, acting in the capacity of swing brakeman on a local freight train on defendant's line of railroad out of Texarkana, in the state of Texas, north over its said line into Little River county, in the state of Arkansas. The number of the engine in said train was 465, and said train consisted of about 46 cars, and among them and near the center of this train was a K. C. S. National dump car, the number of which was 26614." The next paragraph sets forth the manner in which plaintiff was injured while acting in the discharge of his duties as brakeman on the aforementioned train.

We are of the opinion that these allegations are sufficient to show that plaintiff's injury occurred while the defendant was engaging in interstate commerce, and while the plaintiff was performing services for defendant in interstate commerce. The allegation is plainly to the effect that the freight train which plaintiff assisted in operating was one running from the state of Texas into the state of Arkansas. This constituted interstate commerce, even though it was described as a local freight train, and without a specific allegation that it was then carrying consignments across the state line. If the train was run from one state into another for the purpose of carrying freight from station to station, it was engaged in interstate commerce, even though it does not appear that any freight was actually carried across the state line, for it is the operation of the train for the purpose of carrying freight across the state line, if offered, which constituted interstate commerce. Nor was it necessary for the complaint to contain a statement that the particular defective car which caused the injury was one used in interstate traffic. If it constituted a part of the train at the time plaintiff was injured, and he was then engaged in discharging his duties in operating a train engaged in interstate commerce, it is sufficient. We are of the opinion, therefore, that the allegations of the complaint necessarily brought the case within the terms of the federal statute.

It is next insisted that this statute does not repeal or affect former statutes giving the right of removal on account of diversity of citizenship, and does not deprive...