Missouri, K. & T. Ry. Co. of Texas v. Neaves

• Decision Date: 09 April 1910
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. NEAVES.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

127 S.W. 1090

MISSOURI, K. & T. RY. CO. OF TEXAS v. NEAVES.^†

Court of Civil Appeals of Texas.

April 9, 1910.

Rehearing Denied April 30, 1910.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by O. E. Neaves against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Coke, Miller & Coke and Head, Dillard, Smith & Head, for appellant. Jas. P. Haven and J. H. Wood, for appellee.

TALBOT, J.

This suit was instituted by the appellee to recover damages for injuries received by him while in the employ of appellant as brakeman on a freight train en route from Greenville, Hunt county, Tex., to Denison, Grayson county, Tex. The accident was the result of appellant's negligence and occurred on the 18th day of October, 1908, at the town of Deleste in said Hunt county, while appellee was in the discharge of his duties. At the time appellee was hurt, the crew in charge of the train was making what is known as a "dropped switch." In doing this the engine "passed up the track with several cars ahead of it, then backed back, and as it did so one of the crew uncoupled the last three cars furthest from it. The engine and remaining cars then increased speed and pulled away from the cars which had been cut off. After the engine and cars passed over, the switch was thrown, allowing the three cars to go in on a side track for the purpose of being coupled onto the string of cars which constituted the train upon which appellee was employed." It was appellee's duty to ride the three cars in on the side track and to apply the brake on them so as to prevent any unnecessary jar or breakage to the equipment when the three cars should couple to the train. In the performance of this duty appellee got upon one of said cars, a coal car, and attempted to set the brake, but it would not work. Then he went on top of a box car, described in the record as the "Wabash car," and tried the brake on that car, and it would not work. Immediately following the effort of appellee to set or operate the brake on the Wabash car, and before he could do anything to protect himself, the cars being switched struck those standing on the side track with such force that he was thereby thrown between the Wabash car and coal car and seriously and permanently injured.

The first and second assignments of error complain of the court's action in refusing to sustain certain special demurrers urged by the defendant to plaintiff's petition. These demurrers attack the sufficiency of the petition on the grounds: (1) That "it does not show whether at the time plaintiff was injured he was engaged in interstate commerce;" (2) the facts alleged do not show whether the liability of the defendant is or is not regulated by the act of Congress passed the 22d day of April, 1908, entitled "An act relating to the liability of common carriers by railroads to their employés in certain cases." Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171). These assignments will be overruled. We passed upon the questions presented in them in the recent case of Missouri, Kansas & Texas Railway Company of Texas v. Hawley, 123 S. W. 726, and held against the views of appellant. In that case we were inclined to the opinion, as therein expressed, that the allegations of the plaintiff's petition affirmatively showed that at the time he was injured the defendant was engaged in intrastate and not interstate commerce; but our decision was not predicated alone upon that view. We held that, even though the petition was not subject to our construction, it was not demurrable. We were then, and are now, of the opinion that if, in a case of this character, brought in a state court, the plaintiff's petition does not disclose that the suit is based upon the federal statute, under consideration, it must be said that he is not seeking to recover for an injury received while engaged in interstate commerce, and the sufficiency of his petition must be tested by the state law. Thornton's Treatise on the Federal Employer's Liability & Safety Appliance Act, § 107. In Nelson v. Southern Ry. Co. (C. C.) 172 Fed. 478, it is held that an action pending in a state court, even though it be brought under and in reliance upon the employer's liability act, where the declaration contains no statement or suggestion the result of the suit will depend upon the act, is not removable on the ground that it presents a federal question. There is not the slightest suggestion in plaintiff's petition in the present case that it is brought under the employer's liability act, or that the result of the suit will involve or depend upon the construction of said act.

Another reason given in Hawley's Case for holding that his petition was not obnoxious to the railway company's demurrers was the failure of the evidence to disclose that the train upon which he was at work, or any car in said train, was being used in interstate traffic, and therefore the railway company sustained no injury on account of the court's action in overruling said demurrers. In this respect the case at bar and the Hawley Case are not dissimilar, and for a like reason the appellant has sustained no injury in having its demurrers overruled. Again, whether the appellant and appellee were engaged in interstate commerce at the time the latter was injured was a fact peculiarly within its knowledge, and "in such case the pleader, under our practice, is relieved from the necessity of using that degree of accuracy and certainty which would be required, were the facts known to him." Railway Co. v. Brinker, 68 Tex. 508, 3 S. W. 99; Railway Co. v. Smith, 74 Tex. 276, 11 S. W. 1104; Railway Co. v. Easton, 2 Tex. Civ. App. 380, 21 S. W. 575. But appellant, in support of its contention that appellee's petition is demurrable for the reasons urged in the exceptions thereto, cites the cases of Fulgham v. Midland Valley Ry. Co. (C. C.) 167 Fed. 660, and Cound v. Railway Company (C. C.) 173 Fed. 527. These cases, especially the case of Cound v. Railway Co., are in conflict with the case of Nelson v. Southern Railway Co., supra, and the views of Mr. Thornton as expressed in section 107 of his work cited above, and if they can be relied upon as authority for the position assumed by appellant that, where a suit of this character is brought in a state court, the plaintiff's petition is subject to demurrer unless it discloses whether or not the plaintiff, at the time he was injured, was engaged in...