St. Louis-San Francisco Railway Co. v. Barron

• Decision Date: 15 December 1924
• Docket Number: 48
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BARRON
• Court: Arkansas Supreme Court

267 S.W. 582

166 Ark. 641

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BARRON

No. 48

Supreme Court of Arkansas

December 15, 1924

Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

Judgment affirmed.

W. F Evans, and Warner, Hardin & Warner, for appellant.

The court erred in denying the petition for removal to the U. S District Court. 75 Ark. 116; 152 Ark. 258. A case not removable when commenced may afterwards become removable. 246 U.S. 276; 169 U.S. 94. The petition to remove was in time when it was filed as soon as the amendment to the complaint was made proving citizenship in Arkansas. 212 U.S. 364; 89 Ark. 95; 209 P. 312. Upon proof of citizenship in this State the complaint is deemed amended to conform thereto. 88 Ark 363. Defendant did not waive its right of removal by answering and going to trial. 27 R. C. L. § 2, p. 904; Id. § 5, p. 908. See also 96 Ark. 379; 36 Ark. 481. Plaintiff was a mere licensee, and no duty to him was violated by defendant. 113 Ark. 265; 172 P. 929; 56 Okla. 765; 156 P. 654; 77 Okla. 54; 4 Elliott on R. R. (3rd ed.) § 1869, p. 126; 3 Elliott on R. R. § 1789, p. 837; 212 P. 314; 195 P. 139, § 114 Ark. 218; 159 Ark. 423; 138 P. 325. Even if it be assumed that plaintiff was an employee, still there was no negligence shown upon the part of defendant. 220 P. 853; 155 Ark. 585; 219 P. 372; 221 P. 80. See also 133 Ark. 336; 80 Ark. 396. If any negligence of defendant was proved it was not the proximate cause of the injury. 220 P. 853; 154 P. 667; 179 P. 590; 184 P. 758; 113 Ark. 60; 106 Ark. 436; 90 Ark. 210. Plaintiff was guilty of contributory negligence, which bars a recovery by him. 163 Ark. 335; 48 Okla. 15; 41 Ark. 542; 90 Ark. 387; 93 Ark. 484; 198 S.W. 529. Plaintiff assumed the risk, and cannot recover. 170 P. 485; 254 U.S. 415; 135 Ark. 563. See also 153 Ark. 236; 137 Ark. 95; 149 Ark. 77. Instruction No. 2 was erroneous in that it assumed the existence of certain facts not proved in the case. 88 Ark. 20; 71 Ark. 518; 69 Ark. 489; 87 Ark. 471; 156 Ark. 465; 152 Ark. 90. There was no competent testimony to prove the existence of the interstate commerce rule relied on. Courts will not take judicial notice of such rules. 23 C. J. § 900, p. 102; 138 N.W. 809; 63 S.W. 323. Instruction No. 4 was erroneous in declaring that plaintiff did not assume the risks or dangers created by the negligence of the master or his servants, unless such risks and dangers were known to him and appreciated by him. 147 Ark. 95; 153 Ark. 236; 170 P. 485. The court erred in admitting opinion evidence. 66 Ark. 494; 82 Ark. 214. See also 85 Ark. 488; 97 Ark. 180; 133 Ark. 336.

George G. Stockard and G. L. Grant, for appellee.

By failing to file its petition to remove before answering, appellant waived its right to a removal. Lewis on Removal of Causes, 135; 169 U.S. 92; 138 U.S. 298; 246 U.S. 276; 260 U.S. 261; 260 U.S. 653. Appellee was an employee and not a licensee at the time he was injured. 161 Ark. 183; 98 Ark. 259; 78 Ark. 510; 85 Ark. 503; 115 Ark. 478; 44 A. 592; 74 N.E. 1097; 82 N.E. 705; 19 L. R. A. (N. S.) 717; 60 Utah 161. Plaintiff was protected by the Safety Appliance Act. It is sufficient that the company was an interstate carrier. 241 U.S. 33. The Federal statute imposes an absolute duty upon appellant to maintain the safety appliances in a secure condition. Roberts, Fed. Liab., vol. 2, § 834, p. 1368; 241 U.S. 33; 71 Ark. 445; 210 U.S. 281; 83 Ark. 591; 220 U.S. 559; 220 U.S. 580. The court will take judicial notice that appellant is an interstate carrier. 94 P. 138; 16 Cyc. 861; 23 C. J. 1823, p. 66; 605 E. 506. Under the Federal statute it is not necessary to prove negligence as in cases under the common law. 112 Ark. 305. See also 86 Ark. 244. The question of contributory negligence was properly submitted to the jury. 86 Ark. 244; Roberts, Interstate Liability, vol. 2, p. 1400. On the question of assumed risk, appellee was not required by law to make an inspection to find the defect. 98 Ark. 240. It was the unqualified duty of appellant to provide appliances as required by the statute. 242 U.S. 617; 241. U.S. 33; 86 Ark. 244. Courts will take judicial notice of safety appliance standards for the Interstate Commerce Commission. 20 C. J. 1897, p. 97, citing 107 A. 118; 149 Ark. 502; 90 Ark. 350; 130 Ark. 456; 134 Ark. 424; 137 Ark. 165; 141 Ark. 495; 150 Ark. 303. The evidence objected to by appellant cannot be classed as expert evidence, and is in line with the holding in 88 Ark. 484.

OPINION

MCCULLOCH, C. J.

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 grab-iron 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. 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 two, preferably two and a half 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 two 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, 53 L.Ed. 551, 29 S.Ct. 366; Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 62 L.Ed. 713, 38 S.Ct. 237. 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, 67 L.Ed. 244, 43 S.Ct. 106; Lee v. Chesapeake & Ohio Ry. Co., 260 U.S. 653, 67 L.Ed. 443, 43 S.Ct. 230. 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, 51 L.Ed. 264, 27 S.Ct. 150, 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...