* St. Louis & S. F. R. Co. v. Hodge

• Decision Date: 11 January 1916
• Docket Number: Case Number: 3950
• Citation: 1916 OK 25,157 P. 60,53 Okla. 427
• Parties: * ST. LOUIS & S. F. R. CO. v. HODGE.
• Court: Oklahoma Supreme Court

1916 OK 25

157 P. 60

53 Okla. 427

* ST. LOUIS & S. F. R. CO. v. HODGE.

Case Number: 3950

Supreme Court of Oklahoma

Decided: January 11, 1916

Syllabus

¶0 1. REMOVAL OF CAUSES--Determination of Right--Jurisdiction of State Court. A state court is not bound to surrender its jurisdiction of a pending action on a petition for its removal into the District Court of the United States until a case has been made which on its face shows that the petitioner has a right to the transfer. All issues of fact made on the petition for removal must be tried in the federal district court, but the state court is at liberty to determine for itself whether, on the face of the record, a removal has been effected.

2. SAME--Pleading. Where the petition for removal of a cause shows that the plaintiff "at the time of the commencement of the suit was, and now is, a citizen and resident of the State of Oklahoma," and that defendant at said times was a corporation organized under the laws of the State of Missouri, and a citizen and resident thereof, while the plaintiff's petition shows that both plaintiff and his next friend and mother were at all times named therein "residents, citizens, and inhabitants of Snyder, * * * in the Western Judicial District of the United States for the State of Oklahoma," and where jurisdiction of the district court is founded only on the fact that the action is between citizens of different states, consideration may be given the plaintiff's petition (it constituting a part of the record) in determining the question of removability.

3. SAME--Diversity of Citizenship--Court to Which Removed. An action brought in a state court outside of the federal court district of the plaintiff's residence is not, on objection by plaintiff, removable to the federal court on the petition of the defendant, who is a resident of another state, as sections 1 and 2 of Act Cong. March 3, 1887, c. 373, 24 Stat. 552, as amended by Act Cong. August 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. Stat. 1901, pp. 508, 509), provide that, where jurisdiction of the federal court is founded upon diversity of citizenship, suit shall be brought only in the district of the residence of either plaintiff or defendant, and that suits of a civil nature, at law or in equity, may be removed into the federal court for the proper district by the defendant or defendants therein, being nonresidents of the state. To permit the removal would not take the cause to "the proper district" within the meaning of the statute, but, instead, into a district of which neither plaintiff nor defendant was a resident.

4. RAILROADS--Trespassers--Licensees--Duty to Avoid Injury. A railroad company owes no duty to mere trespassers upon its tracks except to avoid unnecessary injury to them after their presence on the premises is discovered; but, where there exists a license, either express or implied, to the children of a community to go upon and across the tracks in the yards of the company, where for a long period of time, with knowledge of the company's servants and employees, they have been accustomed to gather for play or to pick up coal in the yards of the company and near its coal chute, the company is bound to use reasonable care to avoid injury to those whose presence there it may reasonably anticipate.

5. SAME--That children on some occasions had been warned not to take coal or play about the premises of the company did not absolve the company from its duty to exercise reasonable care in operating its trains in the yards, where it was shown that the former custom had not been discontinued.

6. SAME -- Injury to Licensee -- Proximate Cause -- Question for Jury. The proximate cause of an injury is ordinarily for the jury, and is to be determined as a question of fact, in view of the circumstances of fact attending it.

7. APPEAL AND ERROR--Invited Error--Instructions. Instructions to the jury that are in substantial compliance with those requested cannot be made the grounds of reversal at the instance of the party requesting them.

8. RAILROADS--Injury to Child Licensee--Instructions--Contributory Negligence. An instruction to the effect that, if the jury believe and find from the evidence that the plaintiff (a boy 11 years old) was of sufficient age, intelligence, and experience to comprehend and appreciate the danger incident to his situation, under the circumstances of the case, and was injured by reason of negligence on his part, measuring his conduct by the standard that is to be expected from children of his age, capacity, and understanding under like circumstances, and which negligence was the proximate cause of his injury, and that in such event plaintiff would be guilty of contributory negligence and could not recover, it being admitted that plaintiff was acquainted with the dangers incident to the operation of freight trains while being made up in the railroad yards, does not incorrectly state the law; as "children of his age, capacity, and understanding under like circumstances" refers to children such as plaintiff, acquainted with the dangers arising out of the movement of freight trains while switching and being made up.

9. SAME--Evidence of Habit. Evidence of the railroad company in support of its claim of contributory negligence, that plaintiff, a boy 11 years of age, was in the habit or custom of crawling underneath the cars whenever he found the track blocked and desired to cross over said track, the boy himself being a witness, was, for the reason stated in the opinion, inadmissible, and hence properly excluded.

10. APPEAL AND ERROR--Excessive Verdict--Decision on Appeal. While in an action for personal injury a verdict will not be set aside for excessive damages, unless it clearly appear that the jury committed some gross and palpable error, or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which damages are regulated, yet, where from the size of the verdict it is apparent that it was given under the influence of passion or prejudice, the court may direct a reversal of the case, or give the plaintiff the option to remit the excess, and allow the judgment to stand as modified.

11. DAMAGES--Personal Injuries--Excessive Recovery. Evidence examined, and the verdict of $ 20,000 held to be so excessive as to amount to a miscarriage of justice, and that the same should be set aside and a new trial granted unless a remittitur is filed for all in excess of $ 15,000, and interest thereon from date of judgment.

W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.

A. F. Moss, V. E. McInnis, and M. E. Turner, for defendant in error.

SHARP, J.

¶1 On the 9th day of February, 1911, Edgar E. Hodge, a minor, by his next friend and mother, Mrs. E. J. Hodge, instituted in the district court of Marshall county against the St. Louis & San Francisco Railroad Company an action to recover damages on account of an injury sustained by the said Edgar E. Hodge on account of the alleged negligence of defendant's servants and employees in the operation of one of its trains. At the trial plaintiff recovered a verdict for $ 20,000, from which the present proceedings in error have been prosecuted. Among other errors complained of, and the first that commands attention, is that the trial court erred in refusing to enter an order of removal to the federal court. The petition for removal charges that at the time of commencement of said action the plaintiff was a citizen and resident of the State of Oklahoma, and the defendant was a corporation organized under the laws of the State of Missouri, and a citizen and resident of that state. The petition for removal does not allege whether plaintiff was a resident of the Eastern or Western Judicial District of Oklahoma. This fact is supplied in the petition of plaintiff, which charges that at all times therein mentioned both the plaintiff and his next friend and mother were residents, citizens, and inhabitants of Snyder, Swanson (Kiowa) county, in the Western Judicial District for the Circuit Court of the United States for the State of Oklahoma. It therefore appears that plaintiff was a resident of the Western District, while Marshall county, where the action was pending, is in the Eastern District of Oklahoma. In determining the question of law presented to the state court, consideration may be given, not only to the petition for removal, but to the petition of the plaintiff and the pleadings and proceedings down to that time. Western Coal & Mining Co. v. Osborne, 30 Okla. 235, 119 P. 973; Chicago, R. I. & P. Ry. Co. v. Brazzell, 33 Okla. 122, 124 P. 40; Phoenix Ins. Co. v. Pechner, 95 U.S. 183, 24 L. Ed. 427; Stone v. State of South Carolina, 117 U.S. 430, 6 S. Ct. 799, 29 L. Ed. 962; Burlington, C. R. & N. R. Co. v. Dunn, 122 U.S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159. The allegation of plaintiff's petition stating the particular district of the residence of both plaintiff and his mother and next friend in no wise conflicted with the petition for removal. St. Louis & S. F. R. Co. v. Kitchen, 98 Ark. 507, 136 S.W. 970, 50 L.R.A. (N. S.) 828. There was then presented to the state court purely a question of law, upon which it was to determine whether or not the action was removable to the federal court. This involved a determination of the proposition whether or not an action brought in a state court, outside of the federal court district of the plaintiff's residence, is removable on petition of the defendant, who is a citizen and resident of another state. By section 1 of the act of Congress of March 3, 1887 (24 Stat. at L. c. 373, p. 552), as corrected and amended by the act of August 13, 1888 (25 Stat. at L. c. 866, p. 433), it is provided that:

"Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

¶2 The...