Missouri Pac. R. Co. v. Hendrix

• Decision Date: 16 November 1925
• Docket Number: (No. 223.)
• Citation: 169 Ark. 825,277 S.W. 337
• Parties: MISSOURI PAC. R. CO. v. HENDRIX.
• Court: Arkansas Supreme Court

Page 337

277 S.W. 337

169 Ark. 825

MISSOURI PAC. R. CO. v. HENDRIX.

(No. 223.)

Supreme Court of Arkansas.

November 16, 1925.

Rehearing Denied December 14, 1925.

Appeal from Circuit Court, Lawrence County; Dene H. Coleman, Judge.

Action by Charles Hendrix against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. B. Pryor, of Ft. Smith, and H. L. Ponder, of Walnut Ridge, for appellant.

W. P. Smith, of Walnut Ridge, and Pace & Davis and Tom W. Campbell, all of Little Rock, for appellee.

McCULLOCH, C. J.

The plaintiff, Charles Hendrix, received personal injuries while working in the service of the defendant, and he instituted this suit to recover compensation, alleging that his injuries resulted from negligence on the part of defendant in failing to exercise ordinary care to furnish reasonably safe appliances with which he was required to work. It was alleged in the complaint that the defendant was an interstate carrier of freight and passengers, that the locomotive engine on which plaintiff was working at the time he received his injuries was in use in interstate commerce, and the right of action was predicated on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

Defendant, in apt time, filed its application and bond for removal of the cause to the federal court on the ground of diversity of citizenship, but the court denied the petition; whereupon defendant filed its answer, denying the allegations of negligence, and pleading contributory negligence and assumed risk on the part of the plaintiff, and the cause went to trial before a jury. The trial resulted in a verdict in favor of plaintiff, assessing damages in the sum of $7,500, from which judgment the defendant has duly prosecuted this appeal.

It is first contended that the judgment should be reversed because of the court's ruling in denying the petition for removal to the federal court. The federal statute (Hopkins' Judicial Code, § 28), expressly provides that no case under the Employers' Liability Act, brought in a state court of competent jurisdiction, shall be removed to any court of the United States because of diversity of citizenship. This provision of the statute has been upheld by the Supreme Court of the United States in Kansas City Southern R. Co. v. Leslie, 238 U. S. 599, 35 S. Ct. 844, 59 L. Ed. 1478. The defendant, in its petition for removal, traverses the allegations in the complaint with respect to plaintiff's injury having occurred while engaged in interstate commerce, and it is contended now by counsel that this raised an issue of fact which should have been tried by the United States District Court on a motion to remand. This argument is unsound, for the reason that the character of the plaintiff's cause of action must be tested by the allegations of the complaint, and no issue of fact can be raised concerning the same except appropriate allegations of fraud on the part of plaintiff in misjoining defendants in order to defeat the right of the petitioner to remove to the federal court because of diversity of citizenship. In other words, the defendant had no right to try out the issues arising on the merits of the case for the purpose of obtaining a removal of the cause. Southern R. Co. v. Lloyd, 239 U. S. 496, 36 S. Ct. 210, 60 L. Ed. 402; Frazier v. Hines (D. C.) 260 F. 874.

It is next contended that the evidence is not sufficient to sustain the verdict, in that it fails to establish negligence on the part of the defendant, and, on the contrary, shows that the plaintiff assumed the risk and was guilty of contributory negligence which barred his right of recovery. Plaintiff, at the time of his injury, was regularly employed by defendant as engine watchman at the roundhouse at Hoxie, Ark., and on the night of June 16, 1922, he was sent by his foreman to take charge of an engine near Neelyville, Mo. The engine in question was pulling a passenger train en route to St. Louis, and it was halted behind a wrecked freight train and had to remain there all night. Plaintiff, pursuant to the orders of his foreman, went to Neelyville on another train and took charge of the engine to watch it during the night, and the engineer and fireman left the engine as soon as plaintiff reached it. Plaintiff received injury to one of his hands in shaking down the cinders and ashes in the engine in order to keep the fire going, and it was a part of his duty to do that. It is explained in the testimony that the fire grates are in four sections, and that each of the sections has to be shaken in order to relieve the congestion of clinkers and ashes. There is attached to each of the sections an extension called a brake staff, which extends up through the floor of the cab about 10 inches, and an iron bar, called the shaker bar, is used by attaching it to the brake staff in order to move the grate back and forth when shaking down its contents. The allegations of negligence relate to the condition of the shaker bar; it being alleged that it had become worn and cracked so that when in use it slipped and became disconnected from the brake staff.

Plaintiff testified that when it became necessary for him to shake down the ashes and clinkers he attached the shaker bar, which was 4 or 5 feet long and about 2 inches wide, to one of the brake staffs and proceeded to move it, when, on account of the defective condition, it became suddenly disconnected from the staff, and his hand was thrown against the boiler and mashed. He testified that afterwards he examined the end of the shaker bar and found that the cuff on the end of it, which served the purpose of slipping down over the end of the staff and holding the bar in place, was worn on the underside and cracked.

According to the evidence, there was in use on some of the engines of the defendant a shaker bar with a pin attached thereto by a chain, and there was a hole through the cuff of the bar and a corresponding one on the brake staff, so that the pin could be inserted and the bar held secure on the staff. This was, according to the testimony, rather a recent appliance, and was only in use on some of the engines. It was not in use on the engine of which plaintiff was placed in charge. There was an allegation of negligence in failing to have any pin on the shaker bar; but we need not determine whether or not...