Missouri Pac. Ry. Co. v. Castle

• Decision Date: 09 August 1909
• Docket Number: 2,995.
• Citation: 172 F. 841
• Parties: MISSOURI PAC. RY. CO. v. CASTLE.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 841

MISSOURI PAC. RY. CO. v. CASTLE.

No. 2,995.

United States Court of Appeals, Eighth Circuit.

August 9, 1909

James W. Orr (George G. Orr and B. P. Waggener, on the brief), for plaintiff in error.

T. J Mahoney (J. A. C. Kennedy, on the brief), for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

Ozro Castle brought this suit against the Missouri Pacific Railway Company to recover damages for personal injuries received by him on October 2, 1907, while in the employ of the company at Auburn, Neb. It is alleged in the petition that said injuries resulted from the negligence of fellow servants. The plaintiff recovered a verdict, and the defendant has removed the case to this court by writ of error. It appeared at the trial that the train upon which plaintiff was employed at the time he was injured started October 1, 1907, from St. Joseph Mo., for Auburn, Neb., via Atchison, Kan., and was engaged in interstate commerce. Plaintiff based his cause of action upon section 1, c. 48, p. 191, Laws Neb. 1907, which was in force on the date of the injury. Said section reads as follows:

'Section 1 (Railway Company's Liability to injured employee). That every railway company operating a railway engine, car, or train, in the state of Nebraska, shall be liable to any of its employes who at the time of the injury are engaged in construction or repair work, or in the use and operation of any engine, car, or train, for said company, or, in case of his death to his personal representatives for the benefit of his widow and children, if any, if none, then to his parents, if none, then to his next of kin dependent upon him, for all damages which may result from negligence of any of its officers, agents, or employes, or by reason of any defects or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, ways or works.'

It is contended that said section does not include a railway company engaged in interstate commerce in the state of Nebraska, but the language of the section clearly includes all railroads operated in the state. It is also contended that the section above quoted is inoperative so far as employes of the defendant engaged in interstate commerce are concerned by reason of the act of Congress approved June 11, 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 (U.S. Comp. St. Supp. 1907, p. 891)). As this last named act was declared to be unconstitutional in Employer's Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297, it must be considered as never having existed for any purpose. Therefore Congress had not legislated upon the subject contained in section 1 of the Nebraska law above quoted at the time that plaintiff received his injuries. In the absence of legislation by Congress, it was competent for the state to legislate. Chicago, Milwaukee, etc., Ry. Co. v. Solan, 169 U.S. 133, 18 Sup.Ct. 289, 42 L.Ed. 688.

It is further contended that section 2, c. 48, p. 192, Laws Neb. 1907, is repugnant to article 14 of the amendments to the Constitution of the United States, in that it abridges the privileges and immunities of a citizen of the United States, deprives the defendant company of its property without due process of law, and denies to it the equal protection of the laws. The section referred to reads as follows:

'Sec. 2 (Same; contributory negligence). That in all actions hereafter brought against any railway company to recover damages for personal injuries to any employe or when such injuries have resulted in his death, the fact that such employe may have been guilty of contributory negligence shall not bar a recovery when his contributory negligence was slight and that of the employer was gross in comparison but damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe, all questions of negligence and contributory negligence shall be for the jury.'

Conceding but not deciding that said section would be binding upon the federal courts sitting in Nebraska, it has no such effect as is claimed by defendant. In view of the history of trial by jury and the distribution of governmental powers by the Constitution of Nebraska, we cannot presume for a moment that the Legislature had reference to any questions except those of fact, when it used the language: 'All questions of negligence and contributory negligence shall be for the jury. ' As thus interpreted the language quoted is simply declaratory of existing law. Kiley v. Chicago, M. & St. P. Ry. Co. (Wis. 1909) 119 N.W. 309.

It is only when in the opinion of the court there is no question of negligence or contributory negligence as a matter of fact that cases are taken from the jury, under existing practice. In so far as the statute creates the rule of comparative negligence, it in no wise tends to destroy any of the constitutional rights of defendant. The rule of comparative negligence was adopted by some courts of their own motion, and not until it was demonstrated that the rule is impracticable in cases tried to a jury was it discarded, as in theory it is a just rule and is continually enforced by the courts of admiralty, where the trained minds of judges are able to compare the faults of vessels in collision. It is not a question here, however, whether the rule ought to be adopted, but whether the Legislature of Nebraska had the power so to do. Of this we have no question. If the Legislature has the power to take away the defense that the injury sued for was committed by fellow servants, it certainly has the right to modify the rule that any negligence of a plaintiff directly contributing to his injury will defeat his recovery. Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205, 8 Sup.Ct. 1161, 32 L.Ed. 107; Minneapolis & St. Louis Railway Co. v. Herrick, 127 U.S. 210, 8 Sup.Ct. 1176, 32 L.Ed. 109; Tullis v. Railway Co., 175 U.S. 348, 20 Sup.Ct. 136, 44 L.Ed. 192; Chicago, K. & W.R. Co. v. Pontius, 157 U.S. 209, 15 Sup.Ct. 585, 39 L.Ed. 675; Peirce v. Van Dusen, 78 F. 693, 24 C.C.A. 280, 69 L.R.A. 705; Kiley v. Chicago, M. & St. P. Railway Co. (Wis.) 119 N.W. 309.

As the statute only acts prospectively, defendant cannot say that it takes away any vested right. The importance of the question as to whether section 2, above quoted, is binding upon the federal courts sitting in Nebraska, so far as the rule of comparative negligence is concerned, is largely minimized by section 2 of the act of Congress approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65), which establishes practically the same rule. At the trial the defendant called as a witness in its own behalf, Dr. W. H. Ramsey, who being examined in chief testified as follows:

'Q. What is your full name? A. W. H. Ramsey.

'Q. What is your profession? A. Physician and surgeon.

'Q. What position, if any, do you hold with the Missouri Pacific Railway Company? A. I am one of the surgeons.

'Q. Did you hold the same position in October of last year? A. Yes, sir.

'Q. Do you remember of an accident happening to Mr. Castle, the plaintiff in this case? A. Yes, sir.

'Q. Did you examine his injury? A. Yes, sir.

'Q. Describe to the jury in what manner he was injured.

'Mr. Mahoney: Before that question is answered, if your honor please, I desire to ask the witness a question or two in respect to his relation to the case, bearing upon his competency.

'By Mr. Mahoney:

'Q. Doctor, where did you examine him? A. At the hospital.

'Q. In Omaha? A. Yes, sir.

'Q. Did you treat him? A. He arrived in the evening, and, no; I hadn't treated him before that.

'Q. But did you examine him for the purpose of treating him? A. Yes, sir.

'Q. What examination you made was for that purpose? A. Yes, sir.

'Q. The examination you made was for the purpose of diagnosing the case to become informed so you could properly treat him? A. Yes, sir.

'Q. In the discharge of your duties as a surgeon? A. Yes, sir.'

Upon objection of Mr. Mahoney, the above question and an offer made thereon was excluded, and, without asking any other question, counsel for defendant then made the following offer:

'Defendant also offers to prove by this witness that he had a conversation with the plaintiff in which the plaintiff told him that the injury was sustained by plaintiff by having his foot slip off the brakebeam and onto the 'T' rail of the track and one of the car wheels of the first car passing over his foot.

'Mr Mahoney: That is objected to for the reason that it is incompetent, and for the reason that the witness is incompetent to testify respecting the information acquired by him under the circumstances which he has disclosed, such testimony being forbidden by statute, and the witness being...