Shohoney v. Quincy, Omaha & Kansas City Railroad Co.
| Decision Date | 27 November 1909 |
| Parties | ORA T. SHOHONEY v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.
Reversed and remanded.
Hall & Hall, J. G. Trimble and Willard P. Hall for appellant.
(1) This case is removable to the Federal court and defendant's petition for removal should have been sustained. The coupler on the front of the engine, under the allegations of plaintiff's petition, was within the prohibition of the Safety Appliance Act of the United States defendant's railroad was engaged in interstate business the car being coupled was billed from a point in Missouri to Omaha, Nebraska, and was in the actual course of transportation at the time; and, insofar as concerns said coupler upon the engine, the case was within said Safety Appliance Act. It was not necessary for plaintiff's petition to plead said act. The case was within the act the same as if it had been expressly pleaded in the petition. Voelker v. Railroad, 116 U.S. 867; Railroad v Texas, 72 Tex. 404; Miller v. Railroad, 83 Tex. 518; Hobbs v. Railroad, 9 Heisk. 873; Railroad v. Black, 87 Tex. 160; Hart v. Railroad, 6 W.Va. 336; Henen v. Railroad, 17 W.Va. 899; Bishop v. Insurance Co., 85 Mo.App. 302; McGrew v. Railroad, 177 Mo. 533; 17 Ency. of Law, 944; 16 Ency. Law and Proc., 861. (2) Defendant's motion to make the petition definite and certain should have been sustained. Sidway v. Land Co., 163 Mo. 342. (3) The trial court should have given defendant's instruction in the nature of a demurrer to the evidence. On plaintiff's own testimony he was guilty of such contributory negligence as absolutely to preclude him from recovery, and the court should have given the instruction asked by defendant whereby it was so declared. State v. Turlington, 102 Mo. 663; State v. Bryant, 102 Mo. 32; State v. Anderson, 89 Mo. 332. It is firmly settled in this State that even where defendant has violated a statutory duty it can avail itself of the plea of contributory negligence. Huss v. Bakery Co., 210 Mo. 44; Durant v. Coal Co., 97 Mo. 66. (4) Plaintiff's instruction 1 was erroneous in that it submitted to the jury an issue not raised by the petition, to wit, that the Leeds coupler was unsafe for switching purposes, "by reason of not having sufficient lateral play or movement to enable it to conform to the other couplings to which the same was being undertaken to be coupled and to couple therewith."
A. G. Knight, E. R. Sheetz and E. M. Harber for respondent.
(1) It is now settled that the State court cannot be compelled to give up jurisdiction in a cause properly recognizable by it simply because a defendant corporation may assert and even find some one with sufficiently easy conscience to make affidavit that "said action arises under the laws of the United States." The test of the right of removal is, does the plaintiff's cause of action as made by his petition present a case arising under the laws of the United States? It is not sufficient to authorize such removal that some act of Congress, Constitution, laws of the United States, may become incidentally involved or even that a construction thereof be required in the progress of the trial, but the question here is, does the plaintiff's action as made by his petition present a case arising under the laws of the United States? Greenly v. Railroad, 122 N.C. 977; Troxler v. Railroad, 124 N.C. 189; Fleming v. Railroad, 131 N.C. 476; Mather v. Rillston, 156 U.S. 391; Crawford v. Railroad, 10 Am. Neg. Rep. 166; Bond v. Railroad, 106 Mo. 429; Minnier v. Railroad, 167 Mo. 112; Smith v. Fordyce, 190 Mo. 1; Gibson v. Railroad, 46 Mo. 163; Crane v. Railroad, 87 Mo. 588; Hamilton v. Railroad, 123 Mo. 619; Railroad v. Carson, 24 S.Ct. 610; Railroad v. Flipp, 35 So. 45; Railroad v. Winkler, 36 A. 112. (2) (3) The petition is broad enough to conform to the evidence adduced as to defective construction and make. Railroad v. Probst, 85 Ala. 203; Railroad v. Morgan, 132 Ind. 430. Plaintiff does allege the failure to furnish a reasonably safe and suitable engine and one properly equipped with couplers in common and general use, and it matters not to this defendant how or why the railroad companies of this country discarded the old style couplers which had been so generally condemned; the plaintiff complains that he was compelled to use a road engine instead of a switch engine which is customarily provided and adapted for switching purposes and which the evidence shows is provided with couplings which would not have required plaintiff to have placed himself between the cars and thrust the couplings in position for coupling by impact. Gibson v. Railroad, 46 Mo. 163; Crane v. Railroad, 87 Mo. 588. The general rule is that the master's negligence is a question for the jury whenever it is warrantable to infer from the evidence that the injury would not have been received if a certain instrumentality had been substituted for that actually adopted by the defendant, and that this alternative instrumentality was one commonly used by other employers in the same line of business under similar circumstances. Labatt on Master and Servant, sec. 52; Eastman v. Railroad, 101 Mich. 597; Swizel v. Odanoh Iron Co., 116 Mich. 149; Cossolmon v. Dunfer, 69 N.Y.S. 271; Flaherty v. Norwood Eng. Co., 172 Mass. 134; Keller v. Schwenk, 151 Pa. 505; Railroad v. Bundy, 152 Ind. 590; Bennett v. Railroad, 2 N.D. 112; Palmer v. Railroad, 12 F. 392; Jensen v. Hudson Sawmill Co., 98 Wis. 73. (4) The instructions given on behalf of plaintiff are carefully drawn and in no wise depart from the allegations of the petition; if the petition states a cause of action, unquestionably these instructions are beyond criticism. (5) Plantiff did not assume the risk of injury. Thorpe v. Railroad, 89 Mo. 650; O'Hare v. Railroad, 95 Mo. 662. And the question of plaintiff's contributory negligence was a jury question. Edington v. Railroad, 204 Mo. 61; O'Hare v. Railroad, 95 Mo. 662; Black v. Railroad, 172 Mo. 177; Kennedy v. Railroad, 190 Mo. 424; McGuire v. Railroad, 128 Mo.App. 677; Thompson v. Railroad, 86 Mo.App. 141; Harvey v. Railroad, 80 Mo.App. 667.
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 motion for rehearing was sustained.
In the opinion delivered at the last term it is stated that before answering, the defendant filed a motion to require the plaintiff to make his petition more definite and certain, that the motion was overruled, that defendant excepted and the exception was duly preserved in the bill of exceptions. In the motion for rehearing it was said that there was no such motion filed and that there was no exception whatever taken to the overruling of the motion. The plaintiff in making that statement that there was no such motion filed was mistaken. The filing of such motion and the ruling of the court thereon can be shown only by entries in the record proper; the printed record before us on page 23 shows the entries in the record proper, showing that this motion was filed and that it was overruled by the court and that after the motion was overruled the defendant filed its answer. The motion itself appears in full in the only place it should appear, that is, in the bill of exceptions, as shown on pages 27 and 28 of the record, and the exception to the action of the court in overruling the motion also appears in the only place it should appear, that is, in the bill of exceptions, as will be seen by reference to page 28 of the record. The language of the bill of exceptions on this point is: "Which said motion was by the court taken up, considered, heard and overruled and to the action of the court in overruling said motion the defendant at the time saved its exception." Plaintiff therefore was mistaken when he said in his motion for rehearing that there was no such motion filed, no such motion overruled and no exceptions whatever taken to the ruling.
The ruling on a motion to require the plaintiff to make his petition more definite and certain occurs before the trial and it may be at a former term, when exception thereto can be preserved only by a term bill of exceptions. Whether it is necessary or proper to bring it to the notice of the trial court again in a motion for a new trial is a question that some of our decisions have rendered a little doubtful. In Boatmen's Bank v. McMenamy, 35 Mo.App. 198 l. c. 203, the court said: "A motion to strike out part of a pleading is not part of the record, and the court's ruling on such motion must be excepted to, and the exception preserved, both in the motion for new trial and by the bill of exceptions and unless done by both the exception is lost." As authority for that ruling the court cites the following cases: Cowen v. Railroad, 48 Mo. 556; Saxton v. Allen, 49 Mo....
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