Shohoney v. Quincy, O. & K. C. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Citation223 Mo. 649,122 S.W. 1025
Decision Date27 November 1909
PartiesSHOHONEY v. QUINCY, O. & K. C. RY. CO.

Plaintiff, a railroad switchman, brought suit for injuries, based on an alleged violation of defendant's duty to equip its cars with automatic couplers that would couple by impact, etc., as required by the federal safety appliance act (Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]). On removal to the federal court and the denial of a motion to remand, plaintiff dismissed the cause, and brought another suit in the state court at common law, alleging negligence in the operation and equipment of the engine that was being used at the time of his injury. Held, that the order denying defendant's motion to remand the first cause to the state court was not res judicata of the question of jurisdiction of the cause of action stated in plaintiff's second petition.

10. REMOVAL OF CAUSES (§ 107) — DENIAL OF MOTION FOR REMAND — FAILURE TO APPEAL.

Where a federal court has no jurisdiction of the subject-matter of the suit, an order overruling plaintiff's motion to remand unappealed from does not confer jurisdiction, which cannot be conferred by consent.

11. MASTER AND SERVANT (§ 110) — INJURIES TO SERVANT — APPLIANCES — LOCOMOTIVES.

Since a master is only required to use reasonable care to provide for the safety of his servant according to the character of the business, a railroad company was not negligent in providing a road engine instead of a switch engine for the doing of certain switching in a railroad yard, in the doing of which plaintiff was injured; the road engine being reasonably safe for such purpose when handled with ordinary care, though not as convenient or as well adapted to the work as a switch engine.

12. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — "SUITABLE APPLIANCES."

The term "suitable" as used with reference to a master's duty to provide "suitable appliances" for the use of his servants, means compatible with safety.

13. MASTER AND SERVANT (§ 129) — INJURIES TO SERVANT — PROXIMATE CAUSE.

Plaintiff, a switchman, was injured in endeavoring to couple a Leeds coupler, with which the pilot of the engine he was using was equipped, to a Tower automatic coupler on the end of a car. The couplers would have coupled by impact but for the fact that the car was standing on a curve, so that the couplers were not aligned. Plaintiff, being unable to shove over the Tower coupler, which had a lateral motion of three or four inches, with his hand, endeavored to do so with his foot, when the engine came forward without signal, the coupling was made, and plaintiff's foot was caught and crushed. Held that the quipment of the engine with the Leeds coupler, which had a lateral motion of but an inch and a half, was not the proximate cause of the accident, on the theory that if it had been equipped with a Tower coupler plaintiff could have moved it while standing on the pilot, since the lateral motion of the Tower coupler on the car afforded every facility for making the coupling.

14. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — NEGLIGENCE — STATUTES — QUESTION FOR JURY.

The fact that a Leeds automatic coupler would not couple automatically with one of its kind, and therefore did not comply with the safety appliance act of Congress (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) did not render the use of such a coupler negligence per se, in the absence of proof that it was not reasonably safe for the uses to which it was put.

15. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT — ABANDONMENT OF APPLIANCE — EVIDENCE.

Evidence of the general abandonment of an appliance the use of which was alleged to have caused injury to a servant, is not competent, unless the evidence shows, and the circumstances indicate, that it was abandoned because another appliance was safer.

16. MASTER AND SERVANT (§ 293) — INJURIES TO SERVANT — INSTRUCTIONS.

In an action at common law for injuries to a switchman resulting from the defendant's alleged negligence in providing a switch engine equipped with a Leeds coupler, an instruction, authorizing the jury to consider evidence that the Leeds coupler had been generally abandoned in determining whether or not it was safe, was erroneous; there being no evidence showing the reason for such abandonment.

17. MASTER AND SERVANT (§ 270) — INJURIES TO SERVANT — EVIDENCE.

In an action at common law for injuries to a switchman while operating certain automatic couplers, there being no law other than the federal safety appliance act (Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) requiring the abandonment of a Leeds coupler, which did not comply therewith, evidence of an interstate commerce inspector that all railroads were doing away with the Leeds coupler and adopting automatic couplers "because the law makes them" was inadmissible.

18. MASTER AND SERVANT (§ 293) — INJURIES TO SERVANT — SAFETY APPLIANCE.

In an action at common law for injuries to a switchman while using a Leeds coupler, there being no law requiring the abandonment of such coupler except the federal safety appliance act (Act Cong. March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), an instruction that, if the railroads have generally abandoned the Leeds coupler, and it was not reasonably safe, suitable, and adapted for switching purposes, and the other kind was easily accessible and obtainable, it was defendant's duty to have discarded the Leeds and obtained the other kind, was erroneous.

19. NEW TRIAL (§ 66) — VERDICT CONTRARY TO INSTRUCTIONS.

Where a cause on trial has drifted from the control of the trial judge, and is decided against his rulings, it is his duty to set aside the verdict.

20. MASTER AND SERVANT (§ 286) — INJURY TO SERVANT — NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to a switchman, evidence of the engineer's negligence in running his engine forward a second time after a coupling had failed without signal from plaintiff held for the jury.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Ora T. Shohoney against the Quincy, Omaha & Kansas City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hall & Hall, J. G. Trimble, and Willard P. Hall, for appellant. E. M. Harber, A. G. Knight, and Edwin R. Sheetz, for respondent.

VALLIANT, J.

This cause was heard at the last term of this court, and a judgment was then rendered reversing the judgment of the trial court and remanding the cause for a new trial. But in going over the case again on the motion for rehearing it was noticed that the action of the trial court in overruling defendant's motion to require the plaintiff to make his petition more definite and certain was not mentioned in the motion for a new trial, although exception thereto was otherwise duly preserved, and we thought the point was sufficiently doubtful to require a rehearing of the case. Therefore the ...

To continue reading

Request your trial
47 cases
  • McCormick v. Lowe and Campbell Ath. Goods Co.
    • United States
    • Missouri Court of Appeals
    • September 16, 1940
    ...nonsuits were taken at the close of plaintiff's evidence and at the close of all the evidence was not error. Shohoney v. Q., O. & K.C. Ry. Co., 223 Mo. 649, 122 S.W. 1025; McNulty v. Atlas Portland Cement Co., 249 S.W. 730; Schwyhart v. Barrett, 145 Mo. App. 332, 130 S.W. 388; Hickman v. M.......
  • King & Smith v. Kansas City Life Insurance Co.
    • United States
    • Missouri Supreme Court
    • June 13, 1942
    ...Mo. 493; Christy v. Butcher, 153 Mo. App. 397; Frazier v. Radford, 23 S.W. (2d) 639; Hinkle v. Lovelace, 204 Mo. 208; Shohoney v. Quincy, O. & K.C.R. Co., 223 Mo. 649; Peterie v. Met. St. Ry. Co., 177 Mo. App. 359; Gabriel v. Met. St. Ry. Co., 130 Mo. App. 651; Cramer v. Traction Co., 112 M......
  • State ex rel. and to Use of Brancato v. Trimble
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ... ... Mercantile Co., 197 Mo. 238; Ewing v. Vernon ... County, 216 Mo. 681.] ...          "In ... the main opinion in the case of Shohoney v ... Railroad, 223 Mo. 649, l. c. 673, an attempt was made to ... overrule the above cases on the point in question, but since ... the opinion ... ...
  • King v. Kansas City Life Ins. Co.
    • United States
    • Missouri Supreme Court
    • June 13, 1942
    ...289 Mo. 493; Christy v. Butcher, 153 Mo.App. 397; Frazier v. Radford, 23 S.W.2d 639; Hinkle v. Lovelace, 204 Mo. 208; Shohoney v. Quincy, O. & K. C. R. Co., 223 Mo. 649; Peterie v. Met. St. Ry. Co., 177 Mo.App. Gabriel v. Met. St. Ry. Co., 130 Mo.App. 651; Cramer v. Traction Co., 112 Mo.App......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT