Knahtla v. Oregon Short Line & U.N. Ry. Co.

• Decision Date: 24 June 1891
• Citation: 21 Or. 136,27 P. 91
• Parties: KNAHTLA v. OREGON SHORT-LINE & U.N. RY. CO. [1]
• Court: Oregon Supreme Court

27 P. 91

21 Or. 136

KNAHTLA v. OREGON SHORT-LINE & U.N. RY. CO. ^[1]

Supreme Court of Oregon

June 24, 1891

Appeal from circuit court, Wasco county; R.P. BOISE, Judge.

This is an action to recover damages for injuries received by plaintiff in a wreck on defendant's road, caused by the giving way of a bridge near the Cascade Locks, and the falling through of a train on which plaintiff was being carried. After the service of process, and before the time for answering had expired, the defendant company filed a general demurrer, and at the same time filed a petition for removal of the cause to the circuit court of the United States, accompanied by the usual bond; whereupon the bond was approved, and an order made transferring the cause to the United States court. Afterwards that court made an order remanding the cause to the state court for want of jurisdiction, and, upon the filing of a properly certified copy of the order, the state court assumed jurisdiction, and proceeded with the trial of the cause. Plaintiff, who is a common laborer, was in the employ of the defendant as a section band on a section of the road near The Dalles, some 40 or 50 miles from the place of the accident. On the day before the accident, the road having become obstructed by land-slides, the plaintiff was ordered by the road-master of defendant to leave his section, and go with the men, in charge of the road-master, on a delayed passenger train of the company, to assist in clearing the road of slides between the Cascade Locks and Bonneville. The material allegations of the complaint, omitting formal allegations, are as follows "That on or about the 2d day of February, 1890, and while the defendant was transporting the plaintiff upon its cars from the place where he had previously been employed to a place where further repairs had to be made, the defendant negligently and carelessly, permitted its line of track, and the bridges thereon, to become and remain out of repair and unsafe, and negligently and carelessly failed to properly inspect said line of track and bridges, and to keep proper watch and oversight over the same, and to ascertain and report the condition thereof; and especially of a certain bridge on the line of said road situated between Cascade Locks and Lower Cascades, over and across which the plaintiff was required to go to get to the place where the defendant required his services as aforesaid, and which bridge the defendant negligently and carelessly permitted to become and remain out of repair, and in an unsafe condition, and negligently and carelessly failed to keep a proper watch and oversight over the same as aforesaid, and negligently and carelessly failed and omitted to ascertain the condition of the same, and to report it to the officers in charge of the train upon which the plaintiff was being carried as aforesaid. That while the plaintiff was being carried across the said bridge by the defendant, in its cars as aforesaid by reason of the defective and unsafe condition of said bridge, and by reason of the failure of the defendant to keep a proper watch and oversight, and to ascertain and report the condition thereof to the officers in charge of said train upon which the plaintiff was riding, and by reason of the negligence and carelessness of the defendant's said officers in not keeping a proper lookout and in operating said train, the said bridge, and the railroad track upon the same, gave way, and the plaintiff was precipitated through the same, whereby he was greatly bruised," etc pleading permanent injury. The train upon which plaintiff was being carried left The Dalles in the forenoon of the day before the accident, and reached the Cascade Locks at 2:30 P.M. Communication was there had with the train dispatcher at The Dalles who had charge of trains on that division of defendant's road, and the train was given "working orders" between the Locks and Bonneville, 4 1/2 miles, which entitled it to run in either direction between these points, as against all other trains. The train then proceeded, west bound, passing over bridge No. 68, the giving way of which caused the accident, and found the slide about a half a mile west of this bridge. The workmen, some 20 or 30, under charge of the road-master, commenced to remove the slide, and continued to work until about dusk, when they walked back to the Cascade Locks for the night, the train having in the mean time returned to the Locks. The next morning more men were procured, who, with the engine and a caboose, the passengers and coaches having been left at the Locks, proceeded, west bound, to the scene of the wreck the night before; and while passing over the bridge in question it gave way, letting the caboose and all the men into the bottom of the creek, killing several, and severely injuring others, plaintiff being one of the latter. The defendant by its answer denied the negligence charged or any negligence; pleaded the negligence of fellow-servants, and of the plaintiff, as causing and contributing to the injury; also that the alleged accident was caused by a freshet arising from natural causes, without the fault and knowledge of defendant, which had arisen during the night and morning preceeding the accident; and alleging that as at the time of the injury the plaintiff, with other workmen, was out upon the defendant's road engaged in repairing and keeping the same open from obstruction thereon arising without the fault of defendant, and arising from natural causes, the accident occurring and injury sustained thereby, if any, was a part of the risk of the employment of the plaintiff. The reply put in issue the affirmative matter pleaded. The trial resulted in a verdict and judgment in favor of plaintiff, from which this appeal is taken.

Zera Snow, for appellant.

A.S. Bennett, for respondent.

BEAN J., (after stating the facts as above.)

The record contains numerous assignments of error, based upon exceptions duly taken to the ruling of the court, during the progress of the trial, on the admission of testimony, and its giving and refusing instructions to the jury. We shall proceed to examine such of these as we deem material.

1. It is contended by appellant that the court below lost jurisdiction of this cause by the petition of defendant for removal to the circuit court of the United States, and by the order approving its bond, and transferring its cause to that court. The circuit court of Wasco county had, under the constitution and laws of the United States and of this state, original jurisdiction of the subject-matter and of the parties in this case. That jurisdiction was formally invoked by the filing of a complaint and service of process on defendant, and the court was in the exercise of its unquestioned powers in the premises when the petition for removal was filed by defendant. Upon the filing of the petition and bond, the circuit court for Wasco county passed the order required by the statute of the United States governing the removal of causes from the state to the federal courts, but the federal court refused to entertain jurisdiction, and remanded the cause to the state court, and its decision on that question is final. In re Pennsylvania Co., 137 U.S. 451, 11 S.Ct. 141. It follows, therefore, that the cause never has in fact been removed to the circuit court of the United States. The removal is not complete until the United States court has taken jurisdiction, and this it has refused to do, so that the state court never lost its jurisdiction. When the circuit court of Wasco county granted the application for removal of the cause, it simply declined to proceed further in the matter; but when it was ascertained that the order for removal was improper, and that the United States court did not have jurisdiction, the cause revived in the state court, and should have been proceeded with as though no order of removal had been made. Thacher v. McWilliams, 47 Ga. 306; Ex parte State Ins. Co., 50 Ala. 464. In Railroad Co. v. Koontz, 104 U.S. 15, Mr. Chief Justice WAITE, in discussing the proceedings in the United States court on a motion to remand a cause removed from the state court, said: "When the suit is docketed in the circuit court, the adverse party may move to remand. If his motion is decided against him, he may save the point on the record, and after final judgment bring the case here for review, if the amount involved is sufficient for our jurisdiction. If, in such a case, we think his motion should have been granted, we reverse the judgment of the circuit court, and direct that the suit be sent back 'to the state court, to be proceeded with there as if no removal had been had.' " So in Insurance Co. v. Francis, 52 Miss. 466, Mr. Justice CAMPBELL says: "An order for removal in a case not embraced by act of congress is void, and has no effect in legal contemplation, and, although its practical effect may be an interruption improperly of the prosecution of the cause in the state court, the cause is to be considered as having been all the time pending in the state court, which delayed to see if the United States court would take jurisdiction, and, finding it would not, proceeds to try the case thus remitted to it as though no interruption had occurred."

2. The next contention of appellant is that evidence was received and a verdict permitted by instructions upon a ground of liability not pleaded. On the trial evidence was given and received, under defendant's objection, which it was claimed tended to show that the bridge which fell and caused plaintiff's injury was a defective structure, and originally improperly and negligently constructed. At the proper time the defendant requested the court to charge the jury that, in so far as this case is concerned the...