St. Louis, Iron Mountain & Southern Railway Company v. Mcnamare

• Decision Date: 28 June 1909
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MCNAMARE
• Court: Arkansas Supreme Court

122 S.W. 102

91 Ark. 515

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

Supreme Court of Arkansas

June 28, 1909

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; reversed.

STATEMENT BY THE COURT.

This is an action by Ruth E. McNamare, widow of F. McNamare, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for alleged negligence in killing her husband while in the employment of said railway company.

The material facts upon which the suit is based are as follows On the 18th day of February, 1908, plaintiff's husband was in the employment of the defendant as a brakeman on one of its freight trains, running from Cotter, Arkansas, to Crane, Missouri. On said date one of the defendant's freight trains, upon which her said husband was a brakeman was running north on defendant's railroad at or near Melva, Missouri, and the conductor ordered her husband, who was in the rear of said train, to walk over the cars and notify the engineer to head in on a switch in the yards at Melva for the purpose of allowing a passenger train to pass. In obedience to the order, McNamare went forward and notified the engineer. The engineer, instead of heading into the switch, went to the other end of it for the purpose of backing into it. It was the duty of McNamare to assist in operating the switch. For that purpose, as the engine approached the switch stand, he jumped off of it. His foot was caught in an unblocked frog or guard rail, and was held so firmly that he could not unloose it so as to get out of the way of the train. The train ran over him, severing his legs from his body, which resulted in his death. In getting off of the engine he jumped on the side next to the switch instead of on the opposite side, as he was required to do by the rules of the company.

There was a jury trial and verdict for the plaintiff in the sum of $ 7,500.

From the judgment entered on the verdict the defendant has appealed.

Judgment reversed and cause remanded.

E. B. Kinsworthy, S.D. Campbell and Thos. T. Dickinson, for appellants.

1. The statutes of Missouri are penal statutes, and are so dissimilar to the statutes of Arkansas relating to wrongful death and survival of action, and so against the policy of our laws, that this action cannot be maintained in our courts. 60 P. 747; 84 Mo. 679; 16 S.W. 487; 174 Mo. 225; 52 F. 371; 18 Kans. 46; 98 Mass. 85; 46 F. 269; 143 Mass. 301; 67 Vt. 76; 25 Oh. St. 667; 9 S.W. 540; 64 Oh. St. 133; 72 Md. 144; 5 L. R. A. 364; §§ 2864-5 Rev. St. of Mo.; Laws of Mo., 1905, p. 135; Id. Laws 1907, p. 181, 252; Kirby's Dig., §§ 6289, 6290; 64 Oh. St. 133; 7 Am. Dec. 467; 69 Id. 740; 105 Am. St. 820; 14 Id. 344; 71 Ark. 258; 32 Id. 120; 70 Id. 494.

2. The statutes of Missouri are contrary to the constitutions of Missouri and the United States, and "the public policy" of the United States as declared by Congress and the judicial department. Const. of Mo., art 2, §§ 10, 30; Id. art. 4, § 53; 111 S.W. 500; Const. U.S. 5th amend., § 1, art 1, §§ 8, 10. Congress has entered the field of exclusive jurisdiction and legislation as to interstate commerce matters, and state statutes are void. 6 Fed. Stat. An. 752-756; Ib. 1907 Supp., pp. 68-69, Employers Liability Act, etc.; 117 N.W. 686; 111 S.W. 500; 207 U.S. 463.

3. Defendant was entitled to a change of venue. Kirby's Dig., §§ 7096-8; 81 Ark. 499.

4. The place where the injury occurred was not a yard, divisional or terminal point, and the act did not require blocked or filled frogs therein. 110 Mo. 286; 101 Mich. 599; 152 U.S. 145, 150; 57 Ark. 377; 149 Ind. 172; 57 F. 145; 110 Mo. 317.

5. McNamare was injured through his own contributory negligence; he assumed the risk and violated the rules of the company with which he was familiar, hence there can be no recovery. 41 Ark. 542; 46 Id. 569; 61 Id. 549; 57 Id. 461; 63 Id. 427; 106 Mo. 74; 110 Id. 395.

6. The courts of this State are without jurisdiction to render judgment for death occurring in Missouri. Authorities supra; 84 Mo. 679; 54 Am. Rep. 105; 16 S.W. 487; 97 Am. St. 553; 52 F. 371; 79 Ark. 62; 26 Am. Rep. 742; 18 Kans. 46; 98 Mass. 85; 60 P. 747; 174 Mo. 225; 215 Ill. 47; 46 F. 268; 67 Vt. 76; 147 Mass. 301; 20 Am. St. 461; 83 Id. 739; 5 L. R. A. 364; 32 Ark. 120; 70 Id. 494.

Jones & Seawel and Hamlin & Seawel, for appellee.

1. The right of action is given by section 2865, and the measure of damages is governed by section 2866, as amended by act of 1907, Rev. St. of Mo., 1905, p. 155, etc.: 67 Mo. 272; 78 Id. 195; 69 Id. 536; 98 Id. 74; 155 Id. 610; 173 Id. 654; 91 Id. 509; 97 Id. 253; 106 Id. 74; 109 Id. 518; 90 Id. 403; 94 Id. 286. The damages are compensatory and not penal. Cases supra and 75 Mo.App. 535; 80 Id. 93; 178 Mo. 528; 94 Id. 286. This is the doctrine held in Arkansas. 62 Ark. 254; 76 Id. 362; 67 Id. 295; 71 Id. 445; 50 Id. 155; 87 Ark. 65; 103 U.S. 11; Minor, Conflict of Laws (1901), § 200; 56 L. R. A. 193 and notes.

2. The statute is constitutional, and is not a regulation of interstate commerce. The United States "Employers Liability Act" was not in force when the injury occurred. 207 U.S. 463; 77 Ark. 483; 86 Ark. 412; 128 U.S. 96; 86 Ark. 246; 129 U.S. 34; 68 L. R. A. 168; 169 U.S. 613; 80 Ark. 404; 115 U.S. 463; 26 Cyc. 980-1230.

3. The petition for change of venue was properly refused. It was properly supported, and plaintiff was a resident of Marion County. 54 Ark. 243; 71 Id. 180; 76 Id. 276; 80 Id. 360; 74 Id. 172; 83 Id. 38; 86 Ark. 357.

4. It was a question of fact whether or not the place of accident was a yard, and the verdict was conclusive. 78 Ark. 28; 67 Id. 426; 65 Id. 426; 85 Id. 221. The act requires all * * * frogs, etc., to be filled or blocked whether in yards or on their roads.

5. The doctrine of assumed risk and contributory negligence are unavailing under the statute. 122 Mo.App. 227-233; 37 C. C. A. 499; 48 L. R. A. 68; 46 Mo.App. 266; 73 Mo. 219; 112 S.W. 985; 29 Cyc. 622.

HART, J. MCCULLOCH, C. J., concurring.

OPINION

HART, J., (after stating the facts.)

1. Counsel for appellant assign as error the action of the court in refusing to grant it a change of venue. In its petition for a change of venue appellant states "that it verily believes that it cannot obtain a fair and impartial trial in this, Marion County, on account of the undue prejudice against the petitioner in said county. It further says the plaintiff is not a resident of Marion County, Arkansas, but is a resident of the State of Missouri; that her cause of action, if any she has, and the occurrence of which she complains did not take place in Marion County, Arkansas, but occurred in the State of Missouri, and plaintiff was not compelled to institute her suit in Marion County in order to get service on the defendant;" and ends with a prayer to grant it an order changing the venue of this case to some other county in the State of Arkansas, against which there was no valid objection, and for all other proper relief.

The facts are that appellee came to Marion County after the suit was brought, a few weeks before the date of the trial, and resided there at the time of the trial. At the time her husband received the injury complained of, they resided at the town of Cotter, in Baxter County, Arkansas, through which county appellant's line of railroad also extended. The injury complained of occurred in the State of Missouri. The action was not commenced in the county of the plaintiff's residence nor in the county where the occurrence she complains of took place, and it was not necessary to bring the suit in Marion County in order to get service on the appellant. Hence, upon presentation of its petition duly verified, appellant was entitled as a matter of right to a change of venue.

We will quote the two sections of our statutes relative to the question: Section 7996 provides: "Any party to a civil action, trial by jury, may obtain an order for change of venue therein by a motion upon a petition stating that he verily believes that he cannot obtain a fair and impartial trial in said action in the county in which the same is pending on account of the undue influence of his adversary, or of the undue prejudice against the petitioner, or his cause of action, or defense, in such county. The petition shall be signed by the party and verified as pleadings are required to be verified, and shall be supported by affidavits of at least two credible persons to the effect that affiants believe that the statements of the petitioner are true.

Section 7998: "Upon presenting the petition, which may be resisted, and notice to such judge, he may make an order for the change of venue in such action if, in his judgment, it be necessary to a fair and impartial trial, to a county to which there is no valid objection, which he concludes is most convenient to the parties and their witnesses; provided, that, in case where the plaintiff shall have instituted suit in a county other than that of his residence, or of the county where the occurrence of which he complains took place, unless compelled to do so in order to get service on the defendant, the defendant shall have the right to a change of venue upon presentation of his petition duly verified."

The language, "upon presenting the petition, which may be resisted," plainly contemplates the petition duly verified and the supporting affidavits. This is so for the reason that it provides for a resistance, which could not be done, and which would not be necessary to be done, unless a petition for change of venue duly verified and with supporting affidavits, as required by the statute, had been filed. In short, there would be nothing to resist unless the requirements of section 7996 had been complied with.

The proviso...