St. Louis-San Francisco Ry. Co. v. Barron
| Decision Date | 15 December 1924 |
| Docket Number | (No. 48.) |
| Citation | 267 S.W. 582 |
| Parties | ST. LOUIS-SAN FRANCISCO RY. CO. v. BARRON. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; Jas. Cochran, Judge.
Action by Arthur L. Barron against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
W. F. Evans, of St. Louis, Mo., and Warner, Hardin & Warner, of Ft. Smith, for appellant.
Geo. G. Stockard, of Van Buren, and G. L. Grant, of Ft. Smith, for appellee.
This is an action instituted by appellee against appellant to recover for personal injuries. The injuries occurred at a suburb of the city of Muskogee, in the state of Oklahoma. Appellee was a fireman in the service of appellant. He had a regular day run in the operation of a train, and worked extra at night as hostler in the yards at Muskogee, the duties of that position being to prepare trains for road service. On the evening of the day before appellee received his injury, he returned to Muskogee from his regular run and was called to serve as hostler during the night. This work was finished early next morning, and after riding on an engine from the roundhouse to the passenger station to put away the shovel with which he worked, he started for his home, riding an engine, from which he alighted while the engine was moving slowly, at a street near his home. He wore a pair of gauntleted gloves, which firemen were accustomed to wear, and as he was about to alight he took hold of the grabiron on the edge of the tender, near which was an appliance called a globe valve, and as he stepped off the engine the gauntlet of his glove caught on some part of the valve, which caused him to swing around, and he fell to the ground. One of his legs was projected under the tender and was run over by one of the wheels. It became necessary to amputate the leg below the knee.
Appellee charges that there was a general custom of long standing for employees to ride on the engines on their return to their homes after work, so that this privilege became a part of the contract of service, and that while riding towards his home on this occasion he was still in the service of his employer, and not a bare licensee or trespasser.
The engine on which appellee was riding was not actually engaged in performing an act of interstate commerce, but appellant is an interstate carrier and it is claimed that liability of appellant falls within the control of the federal statute known as the Safety Appliance Act (U. S. Comp. St. § 8605 et seq.). There is a rule of the Interstate Commerce Commission, adopted March 13, 1911, which prescribes that on all locomotives in service there shall be "a minimum clearance of 2, preferably 2½ inches," for all handholds, and the charge of negligence in this case is that the globe valve in question at the time of appellee's injury was situated within less than 2 inches of the handhold on the tender, in violation of the rules of the Commission. It is alleged in the complaint that the globe valve was placed in dangerous proximity to the handhold, and it is also charged that the valve was permitted to get out of repair, so as to lessen the distance below the requirements of the Commission. There was a denial of the allegations, with respect to the charge of negligence, and there was a plea of contributory negligence on the part of appellee, and also a plea of assumption of risk.
The action was instituted in the circuit court of Crawford county, and tried in that court. The complaint contained an allegation that appellee was a citizen and resident of the state of Oklahoma, and that appellant is a Missouri corporation. There was a verdict in favor of appellee, assessing damages in the sum of $15,000. It developed from the testimony adduced by appellee that at the time of the trial he had become a resident of Crawford county, in the state of Arkansas, and thereupon appellant filed its petition and bond for removal of the cause to the federal court, on the ground of diversity of citizenship. The petition was overruled, and that ruling constitutes the basis for appellant's first assignment of error.
Counsel for appellant invoke the rule established by decisions of the Supreme Court of the United States, that, where the jurisdictional facts upon which the right of removal exists do not appear from the face of the pleadings at the time the defendant in the action is called upon to plead, the petition may be filed at any stage of the proceedings when those facts are shown to exist by the pleadings. Fritzlen v. Boatmen's Bank, 212 U. S. 364, 29 S. Ct. 366, 53 L. Ed. 551; Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713. The difficulty with appellant's contention is that, according to recent decisions of the Supreme Court of the United States, the jurisdictional facts for removal existed under the original pleadings, in that the complaint charged that appellee was a citizen and resident of Oklahoma, and that appellant was a Missouri corporation. General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U. S. 261, 43 S. Ct. 106, 67 L. Ed. 244; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653, 43 S. Ct. 230, 67 L. Ed. 443. The contention, therefore, that the jurisdictional facts, according to the allegations of the original complaint, did not exist, is unfounded.
It is argued that at the time of the commencement of the action, under the decisions of the Supreme Court of the United States, in the case of Ex parte Wisner, 203 U. S. 449, 27 S. Ct. 150, 51 L. Ed. 264, there was no right of removal under the facts charged, and that the law was subsequently changed by another decision of that court. This is not correct, for, under the decisions of the Supreme Court of the United States, cited above, the law had always been under the removal statute, notwithstanding what was thought to be the ruling in the Wisner Case, that the facts set forth in the original complaint afforded jurisdictional grounds for removal of a cause to the federal court. In other words, there was no change in the law at all between the time of the commencement of this action and the filing of the petition for removal, and the fact that counsel misconceived the state of the law at the time appellant was first required to plead did not avert the effect of the failure to appropriately petition for a removal as a waiver of that right. It follows, therefore, that the trial court was correct in denying the petition for removal.
It is next contended that the evidence is not legally sufficient to sustain the verdict, in that it fails to establish negligence on the part of appellant, and that it establishes beyond dispute that appellee was guilty of contributory negligence, and that he assumed the risk.
The plea of assumption of the risk may be easily disposed of, on the ground that that defense is not available in an action involving a violation of the federal safety appliance statute. It is clear that that statute applies in this case, and is the sole test of liability. Though the engine on which appellant was riding at the time of his injury was not actually engaged in interstate commerce at that time, the fact that the company was...
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