Pankey v. Atchison, Topeka & Santa Fe Railway Co.
| Decision Date | 18 May 1914 |
| Citation | 168 S.W. 274,180 Mo.App. 185 |
| Parties | PINKIE PANKEY, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.
REVERSED.
Judgment reversed.
Thos R. Morrow, James A. Collet, Geo. J. Mesereau and John H Lathrop for appellant.
(1) There was no negligence shown on the part of the defendant under the first ground of negligence. Williams v Railroad, 233 Mo. 666; Boyd v. Harris, 176 Pa. 484, 35 A. 222; Elliott v. Railroad, 204 Mo. 1; Coin v. Lounge Co., 222 Mo. 488. (2) There was no negligence shown on the part of the defendant under the second ground of negligence. Shields v. Railroad, 87 Mo.App. 637; Boyd v. Graham, 5 Mo.App. 403; Adams v. Ins. Co., 76 Pa. St. 411; Hinton v. Coleman, 45 Wisc. 165; Power v. Kane, 5 Wisc. 265; Sweet v. Leach, 6 Ill.App. 212; In The Harbinger, 50 F. 941; Ins. Co. v. Nieberger, 74 Mo. 167; Lee v. Railroad, 195 Mo. 400; Railroad v. Lindeman, 143 F. 946. (3) Even though defendant had failed to follow the practice of stopping when the light disappeared, still Thomas Pankey knew of defendant's alleged failure to follow such rule or practice and knew of its failure, if any, at this very time. He therefore assumed all risks therefrom and plaintiff cannot recover. 1 Bailey's Pers. Ing. Relating to Master and Servant, Secs. 504, 505, p. 175; 14 Am. & Eng. Ency. Law (1 Ed.), 845; 20 Am. & Eng. Ency. Law (2 Ed.), 118; 3 Elliott on Railroads, Secs. 1282, 2030; Bradley v. Railroad, 138 Mo. 293; Hager v. Railroad, 207 Mo. 302; Berning v. Medart, 56 Mo.App. 443; Railroad v. Williams, 39 S.W. (Tex.), 967; Portance v. Coal Co., 77 N.W. (Wis.), 875; Bonnett v. Railroad (Tex. Civ. App.), 31 S.W. 525; Bonnett v. Railroad, 33 S.W. 334; Seldonridge v. Railroad, 46 W.Va. 569, 33 S.E. 293; Hughes v. Railroad, 27 Minn. 137, 6 N.W. 553. (4) Thomas Pankey was guilty of negligence which was the sole cause of the accident. Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Railroad v. Bivins, 103 Ala. 142, 15 So. 515; Railroad v. Orr, 91 Ala. 548, 8 So. 360; Railroad v. Holborn, 84 Ala. 133, 4 So. 146. (5) The presumption of due care cannot apply in a case of this kind where the physical facts and the evidence shows conclusively that the deceased could not have been at the time using any care at all. Spiva v. Coal & Mining Co., 88 Mo. 68; Mockwick v. Railroad, 196 Mo. 550; Higgins v. Railroad, 197 Mo. 300; Adair v. Mettie, 156 Mo. 496. (6) Thomas Pankey was negligent in failing to observe the rules of the company and by reason thereof he assumed all risks flowing from and due to his failure to observe such rules. 26 Cyc., p. 1157; Reagan v. Railroad, 93 Mo. 348; Schaub v. Railroad, 106 Mo. 74; Francis v. Railroad, 110 Mo. 387; Matthews v. Railroad, 227 Mo. 241; Finnegan v. Railroad, 149 S.W. 612; Van Camp v. Railroad, 141 Mo.App. 344.
Phillips & Phillips and Gilbert Lamb for respondent.
(1) There was negligence in having the platform dangerously near the track. George v. Railroad, 225 Mo. 364; Murphy v. Railroad, 115 Mo. 125; Charlton v. Railroad, 200 Mo. 437; Hemmingsen v. Railroad, 114 N.W. 785; 2 Labatt on Master and Servant, p. 2611; Clay v. Railroad, 115 N.W. 949. (2) Plaintiff is not barred by contributory negligence or assumption of risk. Hardwick v. Railroad, (not reported); Mondou v. Railroad, 223 U.S. 1; Delo v. Mining Co., 160 Mo.App. 38; Burkehead v. Rope Co., 217 Mo. 48; Schiller v. Breweries Co., 156 Mo.App. 569; Railroad v. Sanders, 46 N.E. 799; McMurry v. Railroad, 225 Mo. 272; Jewel v. Bolt & Nut Co., 231 Mo. 176. (3) It was negligence for the engineer to back his train after deceased's light disappeared, under the circumstances of the case. Railroad v. Pearcy, 131 S.W. 1036; Schus v. Powers Co., 69 N.W. 68
Between three and four 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, Missouri, by being crushed between a car and the freight platform of the depot.
This suit was brought in the circuit court of Chariton county, Missouri, under the Federal Employer's 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, Missouri. 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 $ 5000. 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 Employer's Liability Act (Act of Congress approved April 22, 1908, 35 U.S. Statutes at Large 65, chapter 149) as amended by Act of Congress approved April 5, 1910 (36 U.S. Statutes at Large 291, chap. 143). 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 Employer's 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, 190 F. 394. But in Teel v. Railroad, 204 F. 918, 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 and Maine Railroad, 203 F. 580; Stafford v. Norfolk, etc., R. Co., 202 F. 605; Kelly's Admx. v. Railroad, 201 F. 591. 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, Missouri. It reached Floyd, in Missouri, sometime between three and four 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, 5 1/2 inches long; the distance between the point where the incline starts up and the point where it reaches the platform level is 16 feet, 4 1/2 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...
To continue reading
Request your trial