Lusk v. Osborn

• Decision Date: 29 January 1917
• Docket Number: 124
• Citation: 191 S.W. 944,127 Ark. 170
• Parties: LUSK et al., RECEIVERS, ST. LOUIS & S. F. RD. CO. v. OSBORN
• Court: Arkansas Supreme Court

191 S.W. 944

127 Ark. 170

LUSK et al., RECEIVERS, ST. LOUIS & S. F. RD. CO. v. OSBORN

No. 124

Supreme Court of Arkansas

January 29, 1917

Appeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge; affirmed.

Judgment affirmed.

W. F Evans and B. R. Davidson, for appellants.

1. The facts of this case were recently before this court. 123 Ark 94; 184 S.W. 65.

There were two counts in the complaint, one alleging a cause of action under the Employer's Liability Act, and the second under the State statute. The cause was removable to the Federal Court. 229 F. 319; 220 Id. 731; 203 Id. 1021; 167 Id. 675. The filing of the petition and bond deprived the court of jurisdiction. 50 Ark 388; 87 Id. 136; 75 Id. 116; 81 F. 518; 81 Id. 977; 176 Id. 872; 183 Id. 133; 204 U.S. 176; 215 Id. 437.

2. The peremptory instruction requested should have been given. The conductor was absent and Howle had charge of the crew; he was riding on the pilot in violation of the rules. 156 F. 234; 95 U.S. 439; 141 F. 919; 87 S.W. 163; 156 F. 234; 41 Ark. 542; 40 Id. 298; 70 Id. 603. He was guilty of recklessness and can not recover. 18 F. 229; 136 Id. 164; 141 Id. 919; 118 Id. 223; 156 Id. 234; 95 U.S. 439; 163 Id. 93.

3. The violation of the rules is negligence per se. 84 Ark. 377; 85 Id. 237; 60 F. 370; 63 Id. 228; 118 Id. 223; 157 Id. 347.

4. No act of negligence is shown on behalf of the company. His own conduct was the proximate cause. 63 Ark. 177; 50 F. 725; 63 Id. 228; 128 Id. 529; 57 Id. 921.

5. He assumed the risk under the liability act. 141 F. 913; Adv. Sheets U. S. S.Ct. 588, May 22, 1916; 144 F. 668; 122 U.S. 189; 233 Id. 492; 239 Id. 595; 58 Ark. 234; 239 U.S. 576.

6. The concluding argument of counsel was objectionable and prejudicial. 61 Ark. 130; 70 Id. 179, 305; 71 Id. 415; 72 Id. 461; 75 Id. 577; 77 Id. 238; 81 Id. 87; 95 Id. 233.

7. The damages are excessive. 172 F. 684; 26 Id. 22; 40 Id. 95; 138 Id. 867.

8. The instructions given for plaintiff are clearly erroneous. 27 S.W. 622; 19 A. & E. R. R. Cases 261; 49 P. 83; 45 Id. 581; 57 A. 529. The instructions refused clearly state the law. The lookout statute has no application to the protection of employees operating a train. 77 Ark. 1-10; cases supra. The evidence does not warrant a recovery.

Covington & Grant, for appellee.

1. The first count is based entirely upon the Federal act and an action based upon that act can not be removed to the Federal Court. 112 Ark. 305; 238 U.S. 599. The fact that there were two counts, one based on the Federal act and the other on the "State statute," does not make the case removable. There was no diverse citizenship. 232 U.S. 146. Here was a case of joint operation, control and liability. Plaintiff could sue one, or all. 62 Ark. 354; 6 Thomps. Negl., p. 475, § 7437; 33 S.Ct. 250.

The case was not removable because the receivers were appointed by a Federal Court. 25 Stat. at Large, 436; 177 U.S. 584; 151 Id. 81; 145 Id. 593; 141 Id. 327; 93 F. 52; 179 U.S. 335.

2. The court properly refused the peremptory instruction. The evidence does not show that the death of Howle was caused solely by his own negligence, or that he assumed the risk. A recovery could be had if there was any negligence on the part of defendants or servants that contributed in whole or in part, to the injury. Negligence was shown by the testimony and the case properly submitted to a jury. 107 Ark. 170; 97 Id. 422; 99 Id. 69; 90 Id. 131; 93 Id. 631; 232 U.S. 248.

3. Howle was not guilty of contributory negligence, nor recklessness in riding upon the pilot in violation of the rules. But if guilty of contributory negligence only, this does not preclude a recovery under the Federal act. 156 F. 234; 128 Id. 536; 114 Id. 870; 95 U.S. 439; 237 Id. 499; 229 Id. 114; 223 Id. 1; 91 Ark. 86; 88 Id. 20; 187 S.W. 920.

4. Nor did he assume the risk. 197 F. 94; 207 Id. 281; 235 U.S. 375; 233 Id. 572; 238 Id. 507.

5. If the remarks of counsel were improper, they were not prejudicial. 74 Ark. 256; 93 Id. 564; 100 Id. 437; 104 Id. 340; 95 Id. 238.

6. The verdict is not excessive. 115 Ark. 483; 237 U.S. 648.

7. The jury were not misled by the instructions. Similar ones have been approved by the courts. 118 Ga. 535; 110 Id. 309; 49 Law Rep. 231. Negligence was shown. Counsel desiring instructions on points not covered should request them. 115 Ark. 101; 117 Id. 579; 70 Id. 136; 95 Id. 593; 78 Id. 455; 75 Id. 251. Instruction No. 5 given is a literal copy from 104 Ark. 340. The same rule is announced in 238 U.S. 507; 228 Id. 434. Tested by the rule in 197 F. 94 and 207 Id. 281 and 235 U.S. 376, there was no assumed risk. 207 F. 281, etc.; 96 Ark. 387.

As to the lookout statute see Seaboard Air Line v. Beauregard, adv. ops., 1915, 126.

The law and the evidence justify the verdict and the judgment should be affirmed.

OPINION

MCCULLOCH, C. J.

The plaintiff's intestate, T. M. Howle, was a brakeman serving on a freight train operated by the receivers of the St. Louis & San Francisco Railroad Company, a foreign corporation, and received injuries, which proved fatal, while assisting in the operation of a train engaged in interstate commerce. This is an action instituted by the administrator under the Federal Employer's Liability Act to recover damages for the benefit of the next of kin. The injury occurred on May 5, 1914. In the second paragraph of the complaint, charges of negligence were made against the receivers of the company and also against the engineer and fireman who were engaged in operating the train, and judgment is asked against them jointly.

The receivers filed a petition for removal of the cause to the Federal Court on the ground of diversity of citizenship of the plaintiff and those defendants, and also on the ground that defendants J. A. Campbell and I. N. Barton, respectively engineer and fireman, had been "fraudulently made defendants in this action to prevent a removal to the United States court." The trial court denied the petition for removal and refused to surrender jurisdiction, to which ruling exceptions were duly saved. Thereafter, the plaintiff dismissed the cause of action set forth in the second paragraph, and the case proceeded to trial upon the first paragraph, seeking recovery under the Federal Employer's Liability Act, and the trial resulted in a verdict in the plaintiff's favor, assessing damages against the defendants in the total sum of $15,000. An answer was filed presenting an issue upon each of the allegations of the complaint.

The circumstances of the injury have already been reviewed and set forth in detail by this court in an opinion rendered in the case of Chicago, R. I. & P. Ry. Co. v. Scott, 123 Ark. 94, 184 S.W. 65, but the facts necessary for a proper understanding of the issues involved will be again set forth. At the town of Mansfield, Arkansas, where the injury occurred, the St. Louis & San Francisco Railroad (commonly known as the Frisco) connects with the line of the Chicago, Rock Island & Pacific Railway Company, and the two companies maintain and use a joint station. The Rock Island runs nearly east and west through the town, and the Frisco comes in from the north and curves toward the west. The connecting point of the two roads is about 1,200 feet east of the depot. The Frisco trains, in order to reach the depot, leave the main line of that road at the point of connection with the Rock Island and back up to the depot over what is called the "run-around track," which is used by both roads for switching purposes. Howle, the plaintiff's intestate, was swing or middle brakeman on the freight train, and when his train came into Mansfield, it was backed into the station over the track just indicated, and the switch was left open, with the red target as a danger signal exposed, thus giving notice that the track was occupied by that train. The train was stopped at the station, where freight was unloaded. There was only a caboose attached to the engine in the rear, but there was a box car of extra width, called an automobile car, attached to the engine in front, which was to be put on a side track before the train pulled out on the return trip to Jensen, the other end of the local run.

When the work of unloading was complete, and the train was ready to proceed, Scott, the rear brakeman, gave the signal to move forward, and the train was started, and after it was moved seven or eight car-lengths, it collided with the Rock Island train which had come in from the west and entered upon this track regardless of the danger signal. The track curved to the left west of the station, so that the engineer could not have seen the approaching engine from his side of the cab, but there was evidence to the effect that the fireman could have seen the Rock Island train if he had been keeping a lookout. Howle had taken a place on the pilot of the engine and behind the automobile car, where he could not see forward, and Scott was either on the right-hand side of the pilot or hanging on to the end of the automobile car, and when the collision occurred, the automobile car was forced off of its trucks and telescoped the pilot of the engine, thus crushing both of the brakemen between the end of the car and the front of the engine. Howle's legs were mangled, one foot was caught in the box car, and he was dragged for some distance, and he suffered great pain before he died in the hospital.

There was introduced in evidence, the following rule of the company: "Employees are forbidden to ride on the pilot of any locomotive. Employees are forbidden to go between cars while coupling or uncoupling the cars." The contention of the defendants is that there was a violation of this rule which was the proximate cause of the injury and...