St. Louis & S. F. Ry. Co. v. Kirk

• Decision Date: 06 October 1924
• Docket Number: 24224
• Citation: 136 Miss. 608,101 So. 377
• Parties: ST. LOUIS & S. F. RY. CO. v. KIRK. [*]
• Court: Mississippi Supreme Court

101 So. 377

136 Miss. 608

ST. LOUIS & S. F. RY. CO. v. KIRK. ^[*]

No. 24224

Supreme Court of Mississippi

October 6, 1924

Division A

1. REMOVAL OF CAUSES. Action for injuries to railroad employee based on federal Safety Appliance Act, not removable.

Action against railroad for injuries from railroad's noncompliance with Safety Appliance Act, section 2 (U. S Comp. St., section 8606), held not removable, notwithstanding diversity of citizenship, in view of federal Employers' Liability Act, as amended April 5, 1910 (U. S. Comp. St section 8662), since such action was one under Employers' Liability Act in view of sections 2-4, of Liability Act (U S. Comp. St., sections 8658-8660).

2. REMOVAL OF CAUSES. State court may rescind order removing cause which was not removable.

State court's order removing to federal court cause, which was not removable, may be rescinded.

3. REMOVAL OF CAUSES. Order of removal of cause, not removable, is void.

An order of removal of cause, not removable, is void.

4. MASTER AND SERVANT. Whether injury was caused by coupler not complying with federal act, held for jury.

In action against railroad for injuries to employee under federal Employers' Liability Act, question whether injury was caused by coupler that did not couple automatically by impact as required by Safety Appliance Act, section 2 (U. S. Comp. St., section 8606), held for injury.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Suit by John R. Kirk against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

D. W. Houston, Sr. & Jr. and J. W. Canada, for appellant.

I. THE COURT ERRED IN OVERRULING THE PETITION OF DEFENDANT FOR THE REMOVAL OF THE CAUSE TO THE FEDERAL COURT. The action of the court, presents two propositions. First, was this case removable? and, second, even though it was not a removable case--after the state court had made its order of removal and jurisdiction of the federal court had attached, the state court did not have a right to rescind its said order of removal and again assume jurisdiction over said case which it had released to the federal court, for all power and jurisdiction over said case by the state court had ceased and the federal court alone had a right to act on a motion to remand, if it was not originally a removable case.

(A) THE CASE WAS PROPERLY REMOVABLE. Plaintiff's counsel contend that section 6 of the federal Employers' Liability Act as amended April 5, 1910 (Appdx. F., Roberts F. Liab. Car. (1918), vol. 2, pp. 1591-2), prevents a removal of this case. We respectfully deny this, for, as alleged in our petition for removal, "this suit or cause of action is based solely and wholly upon alleged violation of the federal Safety Appliance Act, and is, therefore, not affected by the federal Employers' Liability Act prohibiting the removal of causes, and said case is removable to the United States district court.

The gist and gravamen--the heart and soul--the very foundation, of this suit, is a violation of the federal Safety Appliance Act by the defendant in having a defective coupler on the car in question, and that there is no allegation whatever of any negligence on the part of the defendant, but a mere statement of defective condition of the coupler, and our contention is that, in the absence of an allegation of negligence, and in view of the specific phraseology of the declaration expressly referring to this being a violation of the Safety Appliance Act, that this suit is based merely and only and entirely and wholly upon said Safety Appliance Act, and is, therefore, not affected by the federal Employers' Liability Act, prohibiting the removal of causes arising thereunder. See Van Brimmer v. T. & P. Ry. Co., 190 F. 394 (Tex. Dist. Ct.); Bedell v. B. & O. R. R., 245 F. 788 (Ohio Dist. Ct.); Flass v. L. C. R. R. Co., 229 F. 391; 2 Roberts F. Liab. Carriers. (1918), appdx. 9, p. 1594.

(B) THE COURT ERRED AFTER ENTERING THE ORDER OF REMOVAL TO THE FEDERAL COURT, IN AFTERWARDS ENTERING ANOTHER AND DIFFERENT ORDER ATTEMPTING TO RESCIND ITS PRIOR ORDER. We contend that, after the court made and entered the order of removal, it lost and was without jurisdiction to hear and determine the issues involved in this suit, and that by the giving of said order, jurisdiction eo instanti had been granted and conferred upon the United States district court; that the jurisdiction of said state court had ceased entirely, and that it had no authority to proceed with the trial of the case, and that any verdict and judgment rendered therein was null and void. "Where an application for the removal of a case from a state circuit court to a United States circuit court has been granted by the former, it is then the province of the latter to determine whether such removal is proper under the statutes of the United States. If the federal court should take jurisdiction of such case, it must be conducted in that court and be there determined, unaffected by any steps that may be taken in any of the state courts, but if the federal court should refuse to take cognizance of the case, it must after such refusal, be proceeded with in the state court as a pending case." Jackson v. Railroad. Co., 58 Miss. 648. Upon the filing of the petition and bond required by the statute, the suit being removable, the jurisdiction of the state court absolutely ceases and that of the federal court immediately attached, in advance of the filing in the latter of the transcript from the former. All orders thereafter made in the state court are coram non judice, unless its jurisdiction is, in some form actually restored. A failure even to file the transcript within the time prescribed by statute does not have the effect to restore the jurisdiction of the state court. Nat'l Stmshp. Co. v. Tugman, 106 U.S. 118-123, 27 L.Ed. 87.

II. THE COURT ERRED IN REFUSING TO SUSTAIN THE MOTION OF THE DEFENDANT AT THE CONCLUSION OF PLAINTIFF'S TESTIMONY AND TO DIRECT A VERDICT FOR THE DEFENDANT, AND AT THE CONCLUSION OF ALL OF THE EVIDENCE IN REFUSING THE PEREMPTORY INSTRUCTION REQUESTED BY DEFENDANT. All the cases that have been decided and all the authorities show that the burden of proof is upon the plaintiff, and the proof must be clear, that the cars would not couple automatically by impact. Johnson v. So. Pac., 196 U.S. 1, 18 and 19; 49 L.Ed. 363; A. C. R. R. v. Parker, 242 U.S. 56-59, 61 L.Ed. 150-1-2; L. & N. R. R. v. Layton, 243 U.S. 617, 61 L.Ed. 931-2-2; M. & St. L. v. Gotschall, 244 U.S. 66, 61 L.Ed. 995-6; San Antonio Ry. v. Wagner, 241 U.S. 476, 60 L.Ed. 1111-1117; C. B. & I. R. Co. v. U.S. 220 U.S. 559, 55 L.Ed. 582-586; Delk v. St. L. S. F. R. R. Co., 220 U.S. 580, 55 L.Ed. 590 and 594-5; A. & V. Ry. Co. v. Dennis, 91 So. 4 and 5.

It will be noted by the court that the testimony by and for the plaintiff in this case fails to come up to such proof as is required in cases of this kind where liability is fixed on defendant railroads; and that the sole cause of the plaintiff's injury was that he voluntarily and without any necessity went in between the ends of the cars, and thus unnecessarily exposed himself to an imminent and known danger, without waiting to see whether or not the cars would couple automatically by impact, as the undisputed proof in the record shows that these cars had done just before this accident and also did at the very time of and just after the accident.

While we recognize that when there is a real substantial conflict in the testimony that ordinarily it is a question for the jury, still when the court considers all of the above testimony, in connection with the fact that two car inspectors swear that immediately after this accident inspections were made of these couplers, etc., and they were found to be in good condition, and actually coupled without any repairs being made thereon, immediately after this accident, and the further fact that it is admitted by all, including the plaintiff himself, that couplings were made immediately preceding the accident, and that the coupling was actually made at the very moment of the accident, we submit that the court is warranted with this and the other testimony in the case, and that it is its duty, to conclude and decide that under such circumstances, the plaintiff has failed to prove his case, and that the overwhelming weight of the testimony is in favor of the defendant, and that the verdict of the jury is manifestly wrong, and that the peremptory instruction requested by the defendant should have been given and that the case should be reversed. See M. & O. R. R. v. Bennett, 127 Miss. 413-415, 90 So. 113, and cases cited therein, especially Fore v. A. & V. Ry. Co., 87 Miss. 211. See, also, So. Ry. Co. v. Elder, 80 So. 333-4.

Geo. T. & Chas. S. Mitchell, for appellee.

I. DID THE COURT ERR IN OVERRULING PETITION OF DEFENDANT FOR THE REMOVAL OF THE CASE TO THE FEDERAL COURT? It is our contention that the case was not removable from any view point. This court understands, of course, that where a railroad at the time of an injury to an employee, is engaged in interstate commerce and the injured employee is employed by it in interstate commerce, the federal Employers' Liability Act is exclusive and the employee has no choice but is compelled to bring his action under the federal Act. Surely it is not necessary to cite authority in support of this proposition, but we merely call the court's attention to section 421, Robert's Federal Liabilities of Carriers. Since therefore it is admitted by counsel for appellant that defendant was engaged in interstate commerce at the time of the alleged injury, and plaintiff was employed by it in such commerce at said time we submit...