St. Louis & S. F. Ry. Co. v. Farr, 237.

• Decision Date: 10 July 1893
• Docket Number: 237.
• Citation: 56 F. 994
• Parties: ST. LOUIS & S. F. RY. CO. v. FARR.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 994

ST. LOUIS & S. F. RY. CO. v. FARR.

No. 237.

United States Court of Appeals, Eighth Circuit.

July 10, 1893

Statement by SANBORN, Circuit Judge:

On June 20, 1891, James D. Farr, the defendant in error, hereafter called the plaintiff, was thrown from the top of a freight car, and injured, by the breaking of a brake staff with which he was trying to set a brake on a car in one of the trains of the St. Louis & San Francisco Railway Company, the plaintiff in error, hereafter called the defendant. He was a brakeman in the employment of the defendant, and was performing his duty as such when he was injured. The brake staff broke at the point where the staff proper was welded onto that portion of the brake staff known as the 'barrel.' There was a defect in this welding to such an extent that the staff had only about one-third of the strength of a sound staff of its size. This brake staff was on a freight car owned by the Atchison, Topeka & Santa Fe Railroad Company. This car was passing over defendant's railroad. The plaintiff insisted that a proper inspection would have developed the defect, and have prevented the accident, while the defendant claimed that this defect was latent; that it carefully inspected the car and did not discover it; and that it could not have been discovered before the accident, by any reasonable inspection. Upon this question the evidence was conflicting. One of the plaintiff's witnesses testified that he examined the ends of the staff after it was broken; that 'about one-third of the rod was a fresh break broken right square across, and the rest looked to be an old break. The fresh break seemed to be right square across, and the old break seemed to be slanting;' that the new break seemed to be all together and the old break seemed to be all together; and that he did not see any fresh break or shell around the outer surface of the staff. On the other hand, one of the defendant's witnesses, a machinist of 20 years' experience, testified that he saw the ends of the broken staff; that it was broken about one-third of the way across, nearly square, and then broken diagonally up the staff; that the square break was bright, and the diagonal break was of a dull, dead color, except a thin portion around the edge of this break, and that this thin portion was a bright, fresh break; that the portion which was of a dull color was not a fresh break, but a flaw in the iron caused by a defective weld, and that the thin portion around the edge of this defective weld was evidently caused by a perfect swaging of the iron while hot at the time it was welded, and that this swaging would have effectually concealed the defect from the eye. He further testified that when the weld is made in such a staff, even if there is a flaw caused by a piece of dirt or sulphur or some foreign substance getting between the two parts welded, the blacksmith always swages both parts of the iron,--that is, he hammers both portions while they are yet hot with a tool so constructed as to bring the iron to its proper size and form,--and when thus swaged it is impossible to tell by inspection whether the weld extends clear across the iron or not.

There was a verdict and judgment for the plaintiff, and this writ of error was sued out to reverse the judgment.

L. F Parker, (E. D. Kenna, on the brief,) for plaintiff in error.

George A. Grace, (Thomas S. Osborne, on the brief,) for defendant in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

SANBORN Circuit Judge, after stating the facts as above, .

1. A nonresident of the Indian Territory, who has a cause of action for a personal injury, but has not the means to sue, may be permitted to sue, or to prosecute an action already commenced, in forma pauperis, in the United States court in that Territory, and he is not required to give security for costs under the laws there in force. Sections 1053 to 1061, inclusive, of Mansfield's Digest of the Laws of Arkansas, provide that every poor person not able to sue, and having such a cause of action as that set forth in the complaint in this case, may, by order of the court, be permitted to bring or prosecute his action without liability to his attorney, or to the officers of the court, for costs or fees. Section 1036 of Mansfield's Digest provides that a plaintiff who is a nonresident of the state of Arkansas shall file a bond to secure the costs of the action, and section 1037 provides that:

'An action in which a bond for costs is required by the last section, and has not been given, shall be dismissed on the motion of the defendant at any time before judgment unless in a reasonable time to be allowed by the court after the motion is made therefor the bond is filed securing all past and future costs; and the action shall not be dismissed or abated if a bond for costs is given in such time as the court may allow.'

By the act of congress of May 2, 1890, (26 Stat. 94, c. 182, § 31,) these provisions of the statutes of Arkansas were extended over, and put in force in, the Indian Territory. This action was commenced July 23, 1891. The plaintiff filed a petition in the court below for leave to sue as a poor person, September 2, 1891. This petition was granted, and the defendant was allowed to file its answer by an order of the court made September 3, 1891. The answer was filed on that day. The action was continued over the term September 24, 1891. The defendant moved to set aside the order allowing the plaintiff to sue as a poor person, January 26, 1892. That motion was denied February 8, 1892, and this denial is the first error assigned.

The defendant has no valid ground of complaint here, for two reasons:

First. The act of congress which put the Arkansas statutes in force in the Indian Territory provided, in effect, that the court below might permit any poor person who was unable to pay the costs of a suit to prosecute it in forma pauperis. It will not do to say that this statute applies only to residents of the Indian Territory, because the statute itself declares that 'every poor person' shall have this privilege, and because congress, which was legislating for the entire nation, must be presumed to have granted this privilege to all the poor persons within its jurisdiction; that is to say, to all within the United States. Heckman v. Mackey, 32 F. 574; Miller's Adm'r v. Norfolk & W. R. Co., 47 F. 264, 267.

Second. The motion came too late. The order allowing the plaintiff to sue as a poor person was made in September, 1891. In that month the action was continued. In January, 1892, after more than 20 depositions had been taken, and after more than four months had elapsed since the original order was made, and when the trial was imminent, the defendant, for the first time, moved to set aside this order. This unexplained delay after full notice of the nonresidence of the plaintiff, which was given by the complaint, was a waiver of any right the defendant had in this matter. The fair construction of the statutes of Arkansas we have referred to is that the action of the nonresident who will not give security for costs must be dismissed unless he is a poor person, unable to pay them. When he is adjudged to be such a poor person, the statute provides that the court shall appoint his attorney, who must serve without compensation. It would be a manifest injustice to permit the defendant to impose upon the plaintiff's attorney all the labor of preparing for a trial, where so many depositions were taken, only to dismiss the case on the eve of the trial on a ground of which it must have been aware when the original order was made. ...