Lanning v. Chicago Great Western Ry. Co

• Citation: 94 S.W. 491,196 Mo. 647
• Parties: LANNING v. CHICAGO GREAT WESTERN RY. CO. et al.
• Decision Date: 01 June 1906
• Court: United States State Supreme Court of Missouri

94 S.W. 491

196 Mo. 647

LANNING v. CHICAGO GREAT WESTERN RY. CO. et al.

Supreme Court of Missouri.

June 1, 1906.

1. REMOVAL OF CAUSES—DIVERSE CITIZENSHIP —SEPARABLE—NATURE OF CONTROVERSY.

An action in a state court against a servant of a railroad and the railroad jointly, for the negligence of the servant, and where any liability of the company was under the principle of respondeat superior, the servant being a citizen of the state, and the railroad a corporation of another state, is not removable to the federal court, under Act March 3, 1887, c. 373, 24 Stat. 552, as corrected August 13, 1888, chapter 866, § 1, 25 Stat. 433 (1 U. S. Rev. St. Supp. 611 [U. S. Comp. St. 1901, p. 509]), providing that, when in any suit there shall be a controversy between citizens of different states, and which can be fully determined as between them, either one or more of the defendants may remove the suit into the federal court.

2. MASTER AND SERVANT—FELLOW SERVANTS —OPERATION OF RAILROADS.

The servant of a railroad company employed in working about a coal dock, and under the direction of a foreman, was not a fellow servant of a locomotive engineer who worked under the direction of a yard master, and who had nothing to do with the work on the coal dock except to push cars on the dock and pull them out with his locomotive

3. SAME—INSTRUCTIONS.

In an action for injuries to a servant employed by a railroad company, owing to the backing of a locomotive against a car about which he was working, there being ample evidence to the effect that the bell of the engine was not rung nor any notice given of the approach of the locomotive, and the court having instructed that if the bell was rung plaintiff could not recover, defendant could not complain of an instruction permitting plaintiff to recover if the engineer caused the locomotive to collide with the car without warning or signal which would be reasonably calculated to warn plaintiff.

4. SAME.

In an action against a railroad for injuries to a servant owing to a locomotive having been pushed against a car about which plaintiff was working, the petition alleged that the engineer knew, or by the exercise of reasonable care could have known, that plaintiff was working about the car, and the engineer testified that he knew that plaintiff worked at the place in question all the time. Held, that an instruction permitting plaintiff to recover, without requiring him to establish knowledge on the part of the engineer, was not erroneous, as it was competent to prove such knowledge under the general allegation of negligence, and the jury were at liberty to consider the engineer's knowledge, though it was not made a condition of recovery in the instruction.

In Banc. Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by John B. Lanning against the Chicago Great Western Railway Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Culver & Phillip, for appellants. Allen & Mayer, for respondent.

GANTT, J.

On April 17, 1903, the plaintiff began this action in the circuit court of Buchanan county, Mo. The petition, in substance, states that the defendant is a railroad corporation duly organized and incorporated under the laws of Minnesota and is conducting a railroad business in this state; that the defendant railroad has and owns within its railroad yards in the city of St. Joseph what is known as a coal dock; that said coal dock is a structure by which coal bins and chutes are erected and placed upon piers or trestle work about 20 feet above the surface of the ground; that approaching and extending to the surface of said bins and chutes is an elevated incline made of piers and trestle work; that bins, from one end to the other, cover a space of about 100 feet in length; that said incline from the end of the bins to where the same reaches the level of the ground is about 300 feet; that upon the said incline and trestle work, and by the side of the said coal bins, the defendant maintains a regular railroad track, that defendant by its agents and servants, and by means of steam engines, pushes car loads of coal up said incline and up the side of the said bins and chutes, and that there the defendant railroad company has a gang of men whose duty it is to empty the coal from said cars to said coal bins and to work around and upon said coal dock; that just at the top of said incline track, about 40 feet from said coal bins, said defendant has erected and placed a large block attached to a large hinge, which fits over and upon one of the rails of said track and is used for the purpose of stopping and preventing cars that have been pushed upon said dock from running down and along said incline. It is then alleged that on December 4, 1902, the defendant's agent and servant in charge of one of defendant's engines had pushed three large box cars containing coal up and along said incline track, and upon said dock by the side of said coal bins. Plaintiff states that at all the time complained of the defendant John H. Gahagan was the agent and servant of the defendant as a locomotive engineer and was acting in the scope of his employment and agency; that on said day, while plaintiff was assisting in pushing said three large cars, which had been emptied, out of the way and along said railroad track on said dock in order to enable plaintiff and those working with him to clean up the coal that had dropped down on the floor of said dock between said cars and bins, and while plaintiff, in the exercise of due care and caution, was prizing one of the back wheels of the rear car of said three cars with a steel crowbar in order to cause said car to move forward, said defendant John H. Gahagan, in charge of one of defendant's engines, and in the course of his employment by defendant, carelessly, negligntly, recklessly and wantonly, without giving any warning, or ringing any bell of said engine, or blowing the wsitle of said engine, or by any other manner or means giving any notice to plaintiff, and while knowing, or by the exercise of reasonable care and diligence could have known, that plaintiff was working in and about said cars, directed and operated and ran said engine up and along said incline and caused it to come into violent contact and collision with said three cars, causing them to move backward, and the back wheels of the rear car of said three cars to roll upon the steel crowbar that plaintiff was using, as aforesaid, and causing said crowbar to catch and clinch plaintiff's right foot and leg between said crowbar and the iron rail of the railroad track, and thereby to crush and mangle plaintiff's right foot and leg; that plaintiff did not know that the said defendant Gahagan, in charge of said engine, was approaching said cars up said incline, and from plaintiff's position could not see or hear the approach of the said defendant Gahagan; that on account of the negligence and carelessness of the said railroad company by its agents and servants aforesaid, and on account of the carelessness and negligence of the said agent and servant of the defendant, John H. Gahagan, plaintiff's right foot was mangled and crushed, and had to be amputated and taken off; that, by reason of the injuries aforesaid, plaintiff was and is permanently injured by the loss of his right foot; that plaintiff is 27 years old and was of robust health and earning $45 per month; that he has no other business or avocation; that, on account of the loss of his said foot, he is incapable of earning a living and will never be able to earn a livelihood for himself; that, on account of said injuries, he suffered untold and excruciating physical pain and mental agony, and an account of all the premises he was and is damaged in the sum of $25,000, for which he prays judgment. On the second day of the May term, 1903, the defendant railroad company filed its petition to remove said cause to the United States Circuit Court within and for the St. Joseph Division of the Western District of Missouri, on the ground that the controversy in said cause was wholly between citizens of different states; the defendant company being at the time a corporation organized and existing under the laws of Illinois, and the plaintiff being, at the time of the commencement of said suit, a resident and citizen of the state of Missouri. That the matter and amount in dispute exceeded, exclusive of interest and costs, the sum of $2,000. That the time within which the company and its codefendant were required by the laws of this state to answer or plead had not expired, that the controversy between plaintiff and its said codefendant was wholly separable from the controversy between plaintiff and the defendant company, and the grounds of action charged in each of said controversies are based wholly upon different facts and principles of law. That the liability of the defendant company is widely different and distinct from the liability of the defendant company's codefendant, the said John H. Gahagan. That the said John H. Gahagan was and is improperly and...