Mathew v. Wabash R. Co.

• Citation: 81 S.W. 646,115 Mo.App. 468
• Parties: GENEVIEVE HALSTEAD MATHEW, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Decision Date: 03 July 1904
• Court: Court of Appeals of Kansas

81 S.W. 646

115 Mo.App. 468

GENEVIEVE HALSTEAD MATHEW, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

July 3, 1904 ^[*]

December 7, 1903;

115 Mo.App. 468 at 475.

Original Opinion of December 7, 1903 and July 3, 1904, Reported at 115 Mo.App. 468.

Motion denied.

Geo. S Grover for appellant.

(1) When the right exists. Section 709, R. S. U. S. 1901; Dupasseur v. Rochereau, 21 Wallace 130; Railroad v. Maryland, 21 Wallace 467; Belden v. Chase, 150 U.S. 674; See also, Stanley v. Schwalby, 147 U.S. 508; Stare Co. v. Butler, 166 U.S. 660; Railway v. Chicago, 166 U.S. 226; Mallett v North Carolina, 181 U.S. 589-592; Railway v Elliott, 184 U.S. 534; State v. Bland, 168 Mo. 1; Railroad v. Pearce, 6 Sup. St. Rep. February 15, 1904, 232, 233.

Grant I. Rosenzweig for respondent.

(1) The case of Railroad v. Elliott, 184 U.S. 530 (which was once before this court), does not justify Federal appeal in this case. The point there was whether a bond given in Federal injunction case should be governed as to allowance of attorney fee by the Federal rule or by the State rule. The state court refused to enforce the Federal rule. In that case, therefore, there was a direct denial in a State court of a Federal law. In the case at bar there has been no denial by any State court of any Federal law. (2) A mere claim in words that a federal question is involved is not enough. Such question must be present in fact, and must be real and substantial and be such that upon its determination the result of the case depends. Lampassses v. Ball, 180 U.S. 282; Kennard v. Neb., 186 U.S. 308; Swerringen v. St. Louis, 185 U.S. 44; Blackborn v. Portland, 175 U.S. 588; New Orleans v. La. 185 U.S. 344, 351; Gableman v. Peoria, 179 U.S. 339; New Orleans v. Benjamin, 153 U.S. 411; Swafford v. Templeman, 185 U.S. 493; 167 U.S. 662; Kisar v. Taxark, 179 U.S. 199; Bels v. Cone, 188 U.S. 184; DeLamar v. Nesbitt, 177 U.S. 527; Iowa v. Rood, 187 U.S. 87. (3) That a Federal statute is involved is not enough. The statute must first be denied force and effect by the State court. Baker v. Baldwin, 187 U.S. 61; Rea v. Homestead, 176 U.S. 121; Mo. v. Andriano, 138 U.S. 496; Affirmed, 181 U.S. 186; 179 U.S. 201; 172 U.S. 641; 160 U.S. 238; 160 U.S. 292; Conde v. York, 168 U.S. 642; Affirmed, 170 U.S. 41; 176 U.S. 682; 185 U.S. 44; Shoshone v. Rutter, 177 U.S. 505. (4) Where the case is decided upon some other point, apart from or after applying the Federal law, a Federal question is not involved, unless there was an adverse decision upon the Federal law. Sweringen v. St. Louis, 185 U.S. 45; Hale v. Lewis, 181 U.S. 479; Moran v. Horskey, 178 U.S. 207-215; Eustis v. Boles, 150 U.S. 361; Affirmed, 183 U.S. 693; 181 U.S. 480; 179 U.S. 198; 178 U.S. 208; 171 U.S. 641; 162 U.S. 283; Seeberger v. McCormick, 175 U.S. 280; Citizen v. Owensboro, 173 U.S. 643.

OPINION

ON MOTION TO SET ASIDE ORDER GRANTING WRIT OF ERROR TO UNITED STATES SUPREME COURT.

SMITH P. J.

This is an action which was brought by the plaintiff against the defendant to recover damages for personal injuries alleged to have been received by the former on account of the negligence of the latter in operating its trains of cars. The answer was a general denial to which was added two special defenses: One was that of the plea of contributory negligence; and the other, "Further answering, defendant says that whatever injury, if any, was received by plaintiff, on or about the 12th day of September, A. D. 1899, at or near Excelsior Springs Junction, on the railroad of defendant, was solely the result of the negligence of the plaintiff in then and there failing to exercise ordinary care, or any care whatever, for her own safety. . . . That all of its passenger trains, on or about September, 1899, passing through Excelsior Springs Junction, on said day, were then and there, each and every one of them, engaged in transporting mail, baggage, express and passengers, from one State to another, or in interstate traffic. That in accordance with the provisions of an act of Congress of the United States, entitled 'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes,' approved March 2, 1893, the defendant had in said year 1899, on September 12, 1899, under the provisions of said act, and under the directions of the Interstate Commerce Commission, a body of officers created by Congress, and duly empowered by it to supervise interstate traffic upon all railroad lines, including the lines of defendant, equipped its passenger engines and passenger cars with automatic couplers and driving-wheel brakes, as required by said act, and under the authority of said Interstate Commerce Commission.

"That said act of Congress, approved March 2, 1893, was valid, and the Congress of the United States was in 1893, ever since has been, and now is duly empowered and authorized to enact and enforce the same. That on account of so equipping its passenger trains with air brakes and automatic couplers, as required by said law, the hazard of riding upon passenger trains upon the railroad of defendant, as a passenger on said trains, was in 1899, ever since has been, now is greatly increased, which said increased hazard and risk, the plaintiff herein then and there assumed."

The replication was a general denial. There was a trial to a jury of the issues thus made by the pleadings in the court below, resulting in a verdict and judgment for plaintiff in the sum of $ 3,500. The defendant brought the case before us by appeal, and after the hearing of which the judgment was affirmed. After the judgment of affirmance the defendant presented to me as presiding judge an application for a writ of error to the Supreme Court of the United States. The application sets forth the substance of the pleadings and further alleges:

"That at the trial of said cause, in said circuit court of Clay county, Missouri, the Wabash Railroad Company, defendant below and appellant and petitioner here, introduced ample and undisputed testimony in support of the allegations contained in its answer in said cause as aforesaid, wherein and whereby said Wabash Railroad Company, as aforesaid, therein and thereby specifically claimed and set up in its answer as aforesaid, as a complete and perfect defense to said action, said right, title and immunity as aforesaid, so claimed by it under said law of the United States.

"That said right, title and immunity under said law of the United States, so claimed by said Wabash Railroad Company in said cause as aforesaid, was denied to said Wabash Railroad Company, and a judgment rendered against said Wabash Railroad Company in said cause, in the circuit court of Clay county, Missouri, which said judgment was thereafter affirmed on appeal in this honorable court.

"That the effect of said judgment as aforesaid, and of its affirmance as aforesaid, was and is to deny to said Wabash Railroad Company, this petitioner, in said cause, a certain right, title and immunity therein specifically claimed by it under a law of the United States.

"That by virtue of the premises as hereinbefore stated, a Federal question has arisen in this case, which under the express provisions of section 709 of the Revised Statutes of the United States, then as now in force, is reviewable by writ of error from this court to the Supreme Court of the United States."

Section 709, Revised Statutes, U.S. 1901, vol. 1, p. 575, provides: "A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had . . . where any title, right, privilege or immunity is claimed under . . . any statute of . . . the United States and the decision is against the title, privilege or immunity specially set up or claimed by either party under . . . such statute . . . may be re-examined and reversed or affirmed in the Supreme Court upon writ of error." The question thus presented is, whether this is a proper case for the issue of the writ of error for which defendant has applied. If this is a case where any title, right, privilege or immunity was claimed under any statute of the United States and the decision was against such title, right, privilege or immunity specially set up or claimed by the defendant under such statute, then it is obvious that the decision may be re-examined, reversed or affirmed by the Supreme Court of the United States and the writ of error was providently ordered.

The defendant in its answer specially set up and claimed that under the Act of Congress of March 2, 1893, and the directions of the Interstate Commerce Commission that it was required to and did equip its passenger engines and passenger cars with automatic couplers and driving-wheel brakes, and that on account of such equipment the risk of riding upon the passenger trains run on its railway has been greatly increased, and that such increased risk the plaintiff had assumed at the time and place of the injury received by her and that therefore it (defendant) was not liable for such injury. Whether this immunity from liability existed was the substantial question presented and decided; and whether rightly or wrongly decided, the presentation of the question, the claim of the right, privilege and immunity was denied by the trial and supervisory courts, which I think was sufficient to give the Supreme Court jurisdiction. [Wabash Railway Co. v. Pierce, vol. 24, No. 6, Supreme Court Reporter 231; Beals v. Cone, 188 U.S. 184, 47 L.Ed. 435, 23 S.Ct. 275.] In Kizer v. Railway, 179 U.S. 199, it was held...