St. Louis, Iron Mountain & Southern Railway Co. v. Brown

• Decision Date: 23 December 1899
• Citation: 54 S.W. 865,67 Ark. 295
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROWN
• Court: Arkansas Supreme Court

54 S.W. 865

67 Ark. 295

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROWN

Supreme Court of Arkansas

December 23, 1899

Appeal from Crawford Circuit Court, JEPHTHA H. EVANS, Judge.

Reversed and remanded.

Dodge & Johnson and Oscar L. Miles, for appellant.

The court below had no jurisdiction over a cause of action arising in the Indian Territory. There is no such thing as comity except between equals. See Webst. Dict. Comity. Hence there can be no concurrent jurisdiction between the state court and the federal court for the Territory. 18 Wall. 317; 11 Otto, 129; 9 How. 238. The burden was on the appellee to show both that the accident was the result of negligence of the master, and that it was not the result of a risk which he had impliedly assumed, as one of the usual and ordinary hazards of the business. Wood, Mast. & Serv. § 382; Thomp. Neg. 1053; Shearm. & Redf. Neg. § 99; 46 Ark 569. The master's duty of inspection extends only to such defects as are visible and open to ordinary observation, in the case of a foreign and loaded car offered for immediate transit. 22 C. C. A. 268; 116 U.S. 642; 135 Mass. 201; 100 N.Y. 462; 26 P. 297. Even if the injury was caused by negligence, it was the negligence of the car inspector, who was a fellow-servant of appellee. 109 U.S. 478; 46 Ark. 569; 51 Ark. 479. Plaintiff, having elected to bring his suit in Arkansas, is bound by the Arkansas rule upon this point. 16 Peters, 511; 12 Otto, 14; 17 Otto, 102. The injury having occurred while appellee was engaged in violating the rule of the company, his recovery is bound by his own contributory negligence. 90 Ala. 68; 55 Wis. 50; 90 Ala. 32; 106 Mo. 74; 40 Ia. 341; 16 S.W. 229; 80 Ga. 427; 110 Mo. 387; 38 W.Va 206. The employee is presumed to have known of the general rules of his employment. 70 Tex. 226; 16 S.W. 229; 9 Am. & Eng. R. Cas. (N. S.) 759. The appellant discharged its duty to furnish safe instrumentalities, etc., so far as concerns this case, when it placed an adequate supply of links and pins on the train, in order that the servants might replace broken ones; and the presence of the defective link was due to the negligence of a fellow servant. 27 N.E. 952; 139 Miss 445; 109 N.Y. 496; 46 N.E. 624; 156 Mass. 13; 160 Mass. 152; id. 557; 135 Mass. 209.

Geo. A. Grace for appellee.

This is a transitory action, and the court below had jurisdiction. 62 Ark. 254; 54 Ark. 459; 63 Ia. 70; 65 Ia. 727; 31 Minn. 11; 145 U.S. 593; 20 S.W. 819; 103 U.S. 11; 49 Ga. 106; 84 N.Y. 48; 60 Miss. 977; 50 Ark. 155. Appellant's duty of inspection was the same in regard to foreign cars as to its own. 56 Ark. 594, 602; 160 U.S. 70; 16 S. Car. 216; 157 U.S. 72, S. C. 15 S.Ct. 491; 100 N.Y. 462; 53 Am. Rep. 296; 116 N.Y. 401; 109 Ill. 314, 322, 325; 94 Mo. 468; 44 Am. & Eng. R. Cas. 523; 1 Shear. & Redf § 196; 2 id. § 459; 9 F. 337. The car inspector was not a fellow-servant of the fireman, by the law of the Indian Territory. 116 U.S. 642; 149 U.S. 368, S. C. 13 S.Ct. Reporter, 914; 150 U.S. 349; 152 U.S. 684; 58 Ark. 66, 78; 56 F. 1009; 70 F. 219; 76 F. 349, 352; 56 F. 994. The law of the place where the cause of action arose, and not the lex fori, controls. 160 Mass. 571; S. C. 39 Am. St. Rep. 514; 94 Wis. 70; 29 Kas. 632, S. C. 11 Am. & Eng. R. Cas. 243; 10 Lea. 35, S. C. 11 Am. & Eng. R. Cas. 180; 97 Ala. 126, S. C. 18 L. R. A. 433; 89 Tenn. 235; 61 Ia. 441; 27 S. Car. 456, S C. 13 Am. St. Rep. 653; 12 Am. & Eng. Enc. Law (2 Ed.), 1018; 146 U.S. 657, S. C. 13 S.Ct. 224, 229; 1 How. 28; 7 Wall, 53, 64; 105 U.S. 24, 29; 103 U.S. 11; 145 U.S. 593, S. C. 12 S.Ct. 905. The question of contributory negligence was for the jury, 130 U.S. 649, S. C. 9 S.Ct. 647; Beach, Cont. Neg. § 450; 8 Allen, 441; 150 U.S. 349; 48 Ark. 333, 348; 30 Minn. 231; 92 F. 567; 54 F. 481, 483. It was for the jury to say whether the appellant, by the use of ordinary care, could have discovered the defect in the link. 53 Ia. 595, S. C. 35 Am. Rep. 243. The link was admissible in evidence. 62 Ark. 538; 138 Ill. 103, 108, 110, S. C. 27 N.E. 1085; 3 Am. St. Rep. 448, 449.

OPINION

BATTLE, J.

William M. Brown instituted this action against the St. Louis, Iron Mountain & Southern Railway Company, in the Crawford circuit court, to recover damages caused by injuries received by him in the Indian Territory. The plaintiff recovered a judgment against the defendant for six thousand dollars. To set aside this judgment, the defendant prosecutes an appeal to this court.

The plaintiff alleged, in his complaint, that the defendant was a corporation, created and organized under the laws of the state of Missouri and Arkansas; that the Kansas & Arkansas Valley Railway Company was a corporation organized under the laws of this state; and that he the plaintiff, was, on the 19th day of September, 1895, and long before and ever since that day, a white man, and a citizen of the United States, and of the State of Arkansas. He further alleged that sometime prior to the 19th of September, 1895, the St. Louis, Iron Mountain & Southern Railway Company leased from the Kansas & Arkansas Valley Railway Company its railway, which extended from Coffeyville, in the state of Kansas, through the Indian Territory, and into Crawford county, in this state, to the town of Van Buren, and had maintained and operated the same at all times since the lease; that the plaintiff was in the employment of the former company as a fireman on the railway leased by it, and, while so engaged, on the 19th of September, 1895, at Ross station, in the Indian Territory, the defendant, by carelessly and negligently operating one of its trains on which he was working, threw him to the ground and injured him by running the wheel of the engine in the train over his right foot, to his great damage. The defendant answered and denied all allegations as to negligence, but said nothing as to the companies named being corporations, or the lease, or the plaintiff being a white man, and a citizen of this state.

The injury of which the plaintiff complained was received under the following circumstances: In 1890 the defendant employed plaintiff to labor as a fireman on one of its locomotives on the railway leased by it from the Kansas & Arkansas Railway Company. He was constantly engaged in the performance of this work until the 19th of September, 1895, when at Ross station, in the Indian Territory, the train of the defendant on the leased railway, on the engine of which he was serving as fireman, ran on a side track to allow a passenger train to pass. Two cars being already on the side track, the engine of the former train pushed them ahead of it until the train hauled by it was fully on the side track. After the passenger train had passed, the other train backed out over the main line, over the way it had come, and pulled the two cars, which it had pushed ahead of it, as it moved out. A brakeman made an effort to detach them (the two cars) from the engine by uncoupling, while the train was moving, but he failed to do so, and signalled to the engineer to stop, and he obeyed; and as he did so one of the links used in coupling the cars composing the train broke, and the train at this place of junction separated into two parts, and the part in the rear moved up the track. The two cars were then separated from the engine, and the engineer moved the remainder of the train back. As he did so, plaintiff was sitting on the end of the pilot beam, cleaning out the engine from the front end. The two parts into which the train was divided collided. Plaintiff fell from the pilot beam, and a wheel of the engine ran across his right foot, taking off the great toe and the two next to it.

The defendant insists that the Crawford circuit court did not have the jurisdiction to hear and determine any cause of action based upon the injury of plaintiff, because the injury was done in the Indian Territory, and the United States court in that country had jurisdiction to try whatever cause of action accrued to him on account of it. But it is in error. Actions for personal injuries are transitory, and not local, and may be brought against railroad companies in any county where the law provides for suing them, and where service of summons can be effectively made. Under the statute of this state (Sand. & . Dig., § 5692), an action against a railroad company for an injury to person or property upon the road of the defendant may be brought in any county through or into which the road upon which the cause of action arose passes. The road upon which the cause of action in this case arose passes into Crawford county, and the circuit court of that county, if the defendant was property served with summons, had jurisdiction to try it; the cause of action being transitory, and the domicile of both parties being in this state. Eureka Springs Ry. Co. v. Timmons, 51 Ark. 459, 11 S.W. 690; St. L. & S. F. Ry. Co. v. Brown, 62 Ark. 254; Bruce v. Cincinnati R. Co., 83 Ky. 174.

The right of plaintiff to recover in this action depends upon the liability of the defendant to pay damages on account of the breaking of the link which caused the separation of the train. Upon this part of the case the trial court instructed the jury, over the objections of the defendant, as follows "It is the duty of the defendant to use reasonable care to provide and keep in reasonably safe condition for use by its employees the cars and appliances, including links used by them in its service. A violation of this duty is negligence. This duty is violated, so far this case is concerned, only when a link is used which is so defective as to be reasonably liable to break and cause injury; and defendant must have known this, or, if it did not know it, as an ordinarily prudent and careful person ought to have...