St. Louis, I.M. & S. Ry. Co. v. Conley

• Decision Date: 11 April 1911
• Docket Number: 3,465.
• Citation: 187 F. 949
• Parties: ST. LOUIS, I.M. & S. RY. CO. v. CONLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

187 F. 949

ST. LOUIS, I.M. & S. RY. CO. v. CONLEY.

No. 3,465.

United States Court of Appeals, Eighth Circuit.

April 11, 1911

Plaintiff's intestate, who was engineer on a freight train on defendant's railroad, was killed while passing through a long tunnel by striking his head against a batter post standing beside the track supporting the arch of the tunnel. The width of the engine cab was 10 feet, and the clearance between the posts 13 feet. The posts originally had been 15 feet apart, but in reinforcing the roof, posts had been placed a foot nearer the track on each side. There was evidence showing that they could have been placed 6 inches further away, without additional cost and a foot further away at a small cost. It was shown that the track in the tunnel was rough, and that by reason of the swaying of the engine and the darkness it was impossible for an engineer, in passing through, to ascertain the distance of the posts from the track with any degree of accuracy. It was also shown that the injector on the engine had become broken, and that deceased was working at it, and that to see if it was working properly it was necessary to put his head out of the window. Held, that it could not be said as matter of law that he knew of the danger and assumed the risk.

W. E Hemingway, for plaintiff in error.

T. M Seawel (A. C. Seawell, G. J. Crump, D. S. Mayhew, and O. T Hamlin, on the brief), for defendant in error.

Before HOOK, Circuit Judge, and RINER and Wm. H. MUNGER, District judges.

RINER District Judge.

This was an action at law, brought by the defendant in error, hereafter called the plaintiff, against the St. Louis, Iron Mountain & Southern Railway Company, plaintiff in error, hereafter called the defendant, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. The case was originally brought in the state court, and removed to the Circuit Court for the Western District of Arkansas by the defendant. The plaintiff filed a motion to remand, which was overruled. It was suggested at the argument, and again by the plaintiff in her brief, that the motion to remand should have been sustained; but, as the present writ of error presents only the assignments of error made by the defendant, the suggestion cannot, of course, be considered.

Before answering in the case, the defendant filed a motion in the Circuit Court to dismiss the case, on the ground that the action was based upon the act of Congress, approved April 22, 1908, 'generally known as the Employer's Liability Act'; that the federal courts have exclusive jurisdiction of causes of action arising under this statute; and that the circuit court of Marion county, Ark., therefore, had no jurisdiction of the case, and the Circuit Court, by the removal, acquired no more jurisdiction than the state court had at the time of removal. This motion was overruled, and is one of the assignments of error relied upon.

We think the motion was properly denied. The statute is remedial in its character, and it should be so construed as to prevent the mischief and advance the remedy, and may be enforced either in the state or federal courts. Leggett v. Railway (C.C.) 180 F. 314; Nelson v. Railway (C.C.) 172 F. 478; Dennick v. Railway, 103 U.S. 11, 26 L.Ed. 439; Potter's Dwarris on Statutes, 234; Brady v. Daly, 175 U.S. 156, 20 Sup.Ct. 62, 44 L.Ed. 109.

The defendant then demurred to the complaint upon two grounds. First, because the act of Congress of April, 1908, is unconstitutional and void, in that it does not come within the power granted to Congress to regulate commerce between the states, since it is an attempt to regulate the relations between employers engaged therein and employes, and not to regulate commerce itself; second, because it seeks to deprive the defendant of the liberty and privilege of making contracts with its employes in the reasonable and necessary prosecution of its business, and to impose upon it liabilities that are unreasonable and not within the terms of its contracts with its employes, and thereby to deprive it of its liberty to make contracts, and of its property, without due process of law. The demurrer was overruled, and this ruling of the court is assigned for error.

It is alleged in the complaint, and also established by the evidence, that Conley, at the time he received the injuries which resulted in his death, was actively engaged in interstate service; that he was an engineer on a freight train running from Crane, Mo., to Cotter, Ark. In considering the act of 1906 (Act June 11, 1906, c. 3073, 34 Stat. 232 (U.S. Comp. St. Supp. 1909, p. 1148)), in the Employer's Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297, the Supreme Court sustained the authority of Congress, under its power to regulate interstate commerce, to prescribe the rule of liability as between interstate carriers and their employes in such interstate commerce in cases of personal injuries received by employes while actually engaged in such commerce, basing its conclusions, as we understand the case, on the ground that a rule of that character would have direct reference to the conduct of interstate commerce, and would therefore be within the power of Congress to establish. But as the act included, not only this class of employes, but all employes, many of whom were not actually engaged in the movement of interstate commerce, it was held that Congress had exceeded the power conferred upon it by the commerce clause of the Constitution. The act of 1908 provides that every common carrier by railroad, while engaged in interstate commerce, shall 'be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,' or in case of the death of such employe, 'resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharfs or other equipment.'

This statute is in derogation of the common law, and it must be conceded that such statutes are to be construed strictly; but, as suggested by Chief Justice Parker in Gibson v. Jenney, 15 Mass. 205, 'they are also to be construed sensibly and with a view to the object aimed at by the Legislature. ' The primary object of the act was to promote the safety of employes of railroads while actively engaged in the movement of interstate commerce, and is well calculated to subserve the interests of such commerce by affording such protection; there being, as it seems to us, a substantial connection between the object sought to be attained by the act and the means provided to accomplish that object.

In Allgeyer v. Louisiana, 165 U.S. 578, 17 Sup.Ct. 427, 41 L.Ed. 832, the Supreme Court, referring to the fourteenth amendment, said:

'The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. ' Adair v. United States, 208 U.S. 161, 28 Sup.Ct. 277, 52 L.Ed. 436.

But this freedom of contract has always been recognized as a qualified, and not as an absolute, right. In Railway Company v. McGuire, 219 U.S. 549, 31 Sup.Ct. 259, 55 L.Ed. . . . , the Supreme Court, speaking through Mr. Justice Hughes, said:

'The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. Crowley v. Christensen, 137 U.S. 89 (11 Sup.Ct. 13, 34 L.Ed. 620); Jacobson v. Massachusetts, 197 U.S. 11 (25 Sup.Ct. 358, 49 L.Ed. 643).'

In Frisbie v. United States, 157 U.S. 165, 15 Sup.Ct. 588, 39 L.Ed. 657, the court said:

'It is within the undoubted power of government to restrain some individuals from all contracts,

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