Pankey v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 18 May 1914
• Docket Number: No. 10866.,10866.
• Citation: 168 S.W. 274,180 Mo. App. 185
• Court: Missouri Court of Appeals
• Parties: PANKEY v. ATCHISON, T. & S. F. RY. CO.

168 S.W. 274

180 Mo. App. 185

PANKEY v. ATCHISON, T. & S. F. RY. CO.

No. 10866.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. REMOVAL OF CAUSES (§ 3) — CAUSES REMOVABLE — ACTIONS UNDER FEDERAL STATUTES — DIVERSITY OF CITIZENSHIP.

An action in a state court under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), which declares that the jurisdiction of the federal courts shall be concurrent with that of the state courts, and that no case under the act brought in any state court shall be removed to any federal court, may not be removed to a federal court merely on the ground of diversity of citizenship.

2. MASTER AND SERVANT (§ 113) — INJURY TO SERVANT — NEGLIGENCE.

Where a railroad company maintained a platform so near a track that an employé could not stand between it and a moving car, but employés were never required to go between the platform and moving cars in the performance of their duties, the company was not guilty of negligence in so maintaining the platform, and was not liable for the death of an employé crushed between the platform and a moving car.

3. CUSTOMS AND USAGES (§ 3) — REQUISITES AND VALIDITY — GENERALITY.

To make a custom effective, it must be shown to have been general, uniform, certain, and notorious, and known to the parties, or so general and universal that knowledge must be presumed.

4. MASTER AND SERVANT (§ 278) — INJURY TO SERVANT — NEGLIGENCE.

Where, in an action for the death of a brakeman by being crushed between a moving car and a depot platform, there was evidence that the brakeman, after giving the signal to slow down, passed out of the sight of the engineer and entered on the track in front of the moving cars, and then attempted to leave the track, but no evidence that the engineer was required to stop when deceased passed out of sight, or that he had any intimation that decedent would go on the track, the engineer was, as a matter of law, not guilty of negligence in continuing to move the cars.

5. NEGLIGENCE (§ 101) — COMPARATIVE NEGLIGENCE — INJURY TO SERVANT.

Under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), the contributory negligence of an employé does not bar a recovery for the death of the employé, where the employer was negligent, but only diminishes the damages in proportion to the negligence attributable to the employé.

6. MASTER AND SERVANT (§ 240) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Where a brakeman, while switching cars, stepped on the track in front of moving cars and was so placed that he could not signal the engineer, and then, to escape the danger, attempted to step on a platform near the track, where he was crushed by the moving cars, while he could have gone on the other side of the track, which was unobstructed, he was, as a matter of law, guilty of negligence, and there could be no recovery under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), in the absence of any negligence of the trainmen.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by Pinkie Pankey, administratrix of Thomas Pankey, deceased, against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Thomas R. Morrow, of Kansas City, Mo., James A. Collet, of Salisbury, and Geo. J. Mesereau and John H. Lathrop, both of Kansas City, Mo., for appellant. Phillips & Phillips, of Moberly, and Gilbert Lamb, of Salisbury, for respondent.

TRIMBLE, J.

Between 3 and 4 o'clock in the morning of November 27, 1910, Thomas Pankey, the head brakeman on one of defendant's freight trains engaged in interstate commerce, was killed at Floyd, Mo., by being crushed between a car and the freight platform of the depot.

This suit was brought in the circuit court of Chariton county, Mo., under the federal Employers' Liability Act, by his administratrix, Pinkie Pankey, for the benefit of herself, as his widow, and his one child, Mary L. Pankey, an infant three weeks old at the time of the father's death.

Defendant is a Kansas corporation, and plaintiff a resident of Linn county, Mo. A petition and bond for removal to the federal court were filed by defendant in due form and time, but the trial court refused to order the case removed. A trial was thereupon had, resulting in a verdict and judgment for plaintiff in the sum of $5,000. Defendant has appealed.

One of the points contended for is that the cause was removable. If so, then the only tribunal with authority and jurisdiction to try the case is the federal court. For this reason the question of removability should be passed on at the outset, because, if the case is removable, the state court has no power to proceed further, save to order the removal.

Owing to the diverse citizenship of the parties, the right of removal would ordinarily exist, but this suit, as above stated, is based on the federal Employers' Liability Act (Act of Congress approved April 22, 1908, c. 149, 35 Stat. 65), as amended by Act of Congress approved April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]). As amended, section 6 of said act provides that:

"The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

Defendant is not unmindful of this provision of the act, but the point is made that this provision does not forbid the removal of the case where the requisite diversity of citizenship exists to give such right, or where the right of removal exists by virtue of some other law. It is urged that the above-quoted portion of the act was only intended to deprive the litigant of the right to remove his case where the sole ground for removal was the fact that the cause of action arose under the Employers' Liability Act, a federal law; and that where the right of removal was not based simply on that fact, but was a right enjoyed by the litigant independent of that act, then his independent right of removal was not affected. Such was the construction placed upon the act in Van Brimmer v. Railroad (C. C.) 190 Fed. 394. But in Teel v. Railroad, 204 Fed. 918, 123 C. C. A. 240, 47 L. R. A. (N. S.) 21, it is held that the above-quoted provision means just what it says, is remedial, and should be liberally construed, and prohibits removal even in cases where, by reason of diversity of citizenship, such right of removal would otherwise exist. See, also, to the same effect, Rice v. Boston & Maine Railroad (D. C.) 203 Fed. 580; Stafford v. Norfolk, etc., R. Co. (D. C.) 202 Fed. 605; Kelly's Adm'x v. Railroad (D. C.) 201 Fed. 602. If the point has been passed on by the United States Supreme Court, our attention has not been called to it, and, until a different holding is announced by that court, we shall hold with the cases last cited. The application for removal was therefore properly denied.

The train on which Pankey was employed as head brakeman was an extra freight which started from a point in Kansas and ran east on its way to Marceline, Mo. It reached Floyd, in Missouri, sometime between 3 and 4 o'clock in the morning, where the train stopped to pick up some freight cars standing on the house track. The main track at this point runs east and west. The depot is on the north side of the main track, and the house track lies north of and adjoining the depot and its platform. The house track leaves the main track at a switch 491 feet east of the depot and runs back west in a reverse curve as it approaches the depot. That is, as the house track leaves the main track, it curves out to the north from the main track until it is in a position where it can and does turn due west, parallel to the main track, and passes close alongside the platform on the north side of the depot. The platform between the depot and the main line and on the east end of the depot is gravel and is about the same height as the rails. But on the north side of the depot at a point a few feet west of the east end thereof, the platform is constructed of wood and, on an incline, rises a few feet until it is about level with the bottom of an ordinary box car, and continues on this level to the west end of said platform, and thence goes along the west end of said depot for a few feet till it starts again on an incline down to the gravel platform, reaching it at the southwest corner of said depot. The level portion of this elevated platform alongside the house track is 23 feet 5½ inches long; the distance between the point where the incline starts up and the point where it reaches the platform level is 16 feet 4½ inches. The top of the platform is 3 feet 6 inches from the top of the rail, and from the edge of the platform to the first rail is 3 feet 3 inches. The distance between the main track and the house track, on a line drawn from one to the other at a point just east of the depot, is 55.6 feet.

A few of the cars to be picked up were standing on the house track near the west end of the depot; the east end of the easternmost car being alongside the high platform above described and a few feet east of the west end thereof.

When the train on which Pankey was working arrived at Floyd, he had the list of cars to be picked up and knew their location. He had done about a month's work all told on this particular run in which the crew were expected to take a train over the road once a day. As head brakeman it was his duty to do the switching about the different stations. The evidence did not show how many times he had switched cars at this particular station, but ordinarily they switched cars there every day or two, and whenever, during the time he worked on this run, any...