Schwyhart v. Barrett

• Decision Date: 28 June 1910
• Citation: 145 Mo. App. 332,130 S.W. 388
• Parties: SCHWYHART v. BARRETT et al.
• Court: Missouri Court of Appeals

130 S.W. 388

145 Mo. App. 332

SCHWYHART v. BARRETT et al.

Kansas City Court of Appeals. Missouri.

June 28, 1910.

Rehearing Denied July 9, 1910.

1. REMOVAL OF CAUSES (§ 97) — EFFECT OF APPLICATION.

On proper application being made for removal, the state court should proceed no further with the cause, and attempt to do so is coram non judice.

2. REMOVAL OF CAUSES (§ 89) — EFFECT OF PETITION AND SECURITY — QUESTIONS PRESENTED THEREBY.

When a petition is filed and the necessary security furnished, it presents to the court a pure question of law as to whether, admitting to be true the facts stated in the petition, it appears on the face of the record that the petitioner is entitled to a removal.

3. REMOVAL OF CAUSES (§ 89) — DECISION BY STATE COURT — CORRECTION OF ERROR — MATTERS FOR CONSIDERATION.

The state court has the right to decide for itself the question whether a petitioner is entitled to a removal on the face of the record when his petition is filed and security furnished, and if it errs in keeping the case, and its decision is affirmed, the United States Supreme Court has jurisdiction to correct the error, considering for that purpose only the part of the record ending with the petition.

4. REMOVAL OF CAUSES (§ 89) — FILING PETITION — EFFECT AS WORKING TRANSFER.

Mere filing of a petition to remove a suit not removable does not work a transfer.

5. REMOVAL OF CAUSES (§ 89) — PROCEEDINGS IN STATE COURT — EXAMINATION OF PAPERS — ADVERSE DECISION — WHEN JUSTIFIED.

When, on defendant filing a bond and petition, the allegations of fact stated in the petition as a ground for removal were denied except as they appeared on the face of plaintiff's petition, the court had a right to examine the papers, and, as they did not disclose on their face the existence of a removable cause, it was justified in refusing to surrender jurisdiction.

6. REMOVAL OF CAUSES (§ 24) — SEVERABLE ACTION.

An action by an injured railroad employé against the company and co-employés for the latters' negligence is not removable by the company as a severable action, though its liability exists, if at all, by virtue of Rev. St. 1899, § 2875 (Ann. St. 1906, p. 1657), while the liability of the individual defendants rests on the common law.

7. REMOVAL OF CAUSES (§ 86) — PETITION — PLEADING FRAUDULENT JOINDER TO PREVENT REMOVAL.

A petition by one of several defendants based on the ground that the other defendants were joined for the sole purpose of preventing a removal alleged that the other defendants were men of small means, having but little property from which a judgment against them might be recovered, and that the petitioner was, at time of suit, entirely solvent and able to pay its debts, or any judgment recovered against it, and that it had property more than sufficient to pay the amount sued for, and that, according to the allegations in the petition in the action, any act of negligence on the part of the other defendants alleged to have produced the injury to plaintiff was an act of the petitioner, which was accordingly responsible therefor. Held to plead specific facts from which petitioner concluded that the joinder was fraudulent.

8. REMOVAL OF CAUSES (§ 86) — FRAUDULENT JOINDER OF DEFENDANTS TO PREVENT.

The allegation that individual defendants are men of small means, and that defendant company is solvent and of great wealth, are not facts which would support a conclusion of fraud in joining the individual defendants to prevent removal.

9. MASTER AND SERVANT (§ 286) — ACTION FOR INJURIES — EVIDENCE — NEGLIGENCE OF FELLOW SERVANTS.

In an action for injuries to a railroad yard employé, evidence held not to show as a matter of law that a train master who gave the order resulting in his injury was negligent.

10. MASTER AND SERVANT (§ 164) — INJURY TO RAILROAD YARD EMPLOYÉ — NEGLIGENCE OF TRAIN MASTER — SUPERVISION OF FELLOW SERVANTS.

An order by a train master to a yard foreman to use a freight engine to do certain switching which was not in accordance with the usual custom, and which resulted in injury to a yard employé implied direction to those charged with its execution to exercise reasonable care, and it was not incumbent on the train master to follow in the footsteps of each subordinate to see that he performed his duty.

11. MASTER AND SERVANT (§ 330) — LIABILITY OF SERVANT FOR INJURIES TO FELLOW SERVANT — EVIDENCE.

In an action against a railroad company and a brakeman for injury to a yard employé, evidence held insufficient to show negligence of the brakeman, who signaled an engine to make a coupling while plaintiff was between cars.

12. MASTER AND SERVANT (§ 330) — LIABILITY OF SERVANT FOR INJURY TO FELLOW SERVANT — EVIDENCE.

In an action against a railroad company and a yard foreman for injury to a yard employé, the yard foreman held negligent under the evidence.

13. MASTER AND SERVANT (§ 185) — INJURY TO SERVANT — NEGLIGENCE OF CO-EMPLOYÉ.

Negligence of an employé whose duty it was to see to the safety of an inferior employé injured by reason of his neglect was the negligence of their common master, whether he was a fellow servant or vice principal.

14. MASTER AND SERVANT (§ 289) — INJURY TO SERVANT — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for injury to a railroad yard employé who was caught between cars of a train when uncoupling the same, evidence held to present a question for the jury as to contributory negligence.

15. MASTER AND SERVANT (§ 213) — INJURY TO RAILROAD EMPLOYÉ — ASSUMPTION OF RISK.

Where a railroad yard employé went in accordance with his duty between cars of a passenger train to uncouple the same, and was injured when a freight train was unexpectedly backed into a sleeper for the purpose of switching, the injury was not due to a risk assumed by him as a part of his contract of employment.

16. TRIAL (§ 194) — INSTRUCTIONS — INVASION OF PROVINCE OF JURY.

In an action for injury to a railroad yard employé who was injured between cars of a passenger train when a freight engine was unexpectedly backed into a sleeper, it was error to instruct that, if such engine was used to do the switching without notice to or knowledge of plaintiff, the act amounted to negligence per se; the effect of such act being for the jury to determine as far as it was evidence of negligence.

17. NEGLIGENCE (§ 136) — TRIAL — QUESTION FOR JURY.

Negligence cannot be conclusively established as matter of law on a state of facts on which fair-minded men of ordinary intelligence may differ as to inferences to be drawn from it, and, when the question arises on even a conceded state of facts from which reasonable men may draw different conclusions, it must be submitted to the jury, and, if the inferences to be drawn from the evidence are uncertain or controvertible, the question cannot be passed on by the court; but, where facts admit of but one reasonable inference, the court as matter of law

may pronounce the only conclusion permissible under the facts.

Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by Albert H. Schwyhart against Martin A. Barrett, Frank Novak, H. L. Reed, and the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed as to defendants Barrett and the railroad company, and reversed as to the other defendants.

Hicklin, Leopard & Hicklin and Brown & Dolman, for appellants. K. B. Randolph, Boyd Dudley, and J. A. Selby, for respondent.

JOHNSON, J.

This action is to recover damages for personal injuries which plaintiff alleges were caused by the negligence of the defendants. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $7,500 against all of the defendants. An appeal was granted to the Supreme Court where jurisdiction on appeal was lodged; but during the pendency of the cause in that court the General Assembly approved an act enlarging the jurisdiction of the Courts of Appeals (Laws 1909, p. 397), and the cause was transferred to this court under the provisions of that act. Objections offered by defendants to the transfer were disposed of adversely to them in an opinion written by Valliant, J. (223 Mo. 497, 122 S. W. 1049), to which we refer for a statement of the grounds of our jurisdiction.

The injury occurred about 8:45 p. m. January 14, 1905, at Altamont, at the junction of defendant railway company's St. Joseph branch road with its main line. Plaintiff was a "hostler" employed in the yards, and it was one of his duties to go between the cars of the passenger train scheduled to arrive from St. Joseph at 8:45 p. m. to uncouple the safety chain, steam, air brake, and signal hose. A Pullman sleeping car running from St. Joseph to Chicago was brought in by this train and transferred to the through train which came from Kansas City. Usually the necessary switching of the sleeping car was done by the locomotive of the St. Joseph train which was detached and run back for that purpose; but on this occasion, owing to the crowded state of the yards, this locomotive was so hemmed in that it could not be used for switching without delaying the departure of the through train, and the locomotive of a freight train was detached and employed to switch the sleeping car. Plaintiff knew the engine of the St. Joseph train had not been uncoupled, but did not know that the freight engine had been assigned to do the switching. The train master (defendant Reed), who had control over the movement of trains at Altamont happened to be there and ordered defendant Barrett, who was foreman of the yards, to use the freight engine to do the switching. Without telling plaintiff, who was a subordinate, of the order, Barrett proceeded to have it executed and, aided by plaintiff, started to do the necessary uncoupling between the cars of the St. Joseph train. Barrett went between the cars on one side, plaintiff on the other. While they were at work between two cars and plaintiff was...