St. Louis & San Francisco Railroad Company v. Kitchen

• Decision Date: 10 April 1911
• Citation: 136 S.W. 970,98 Ark. 507
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KITCHEN
• Court: Arkansas Supreme Court

136 S.W. 970

98 Ark. 507

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KITCHEN

Supreme Court of Arkansas

April 10, 1911

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

W. F Evans, T. S. Buzbee and B. R. Davidson, for appellant.

1. The petition to transfer to the Federal court deprived the State court of jurisdiction. 75 Ark. 116; Dillon on Removal of Causes, § 75; 18 Enc. Pl. & Pr. 338, 341; 176 F. 872; 81 Id. 518; 47 Id. 530; 213 U.S. 207; 215 Id. 437.

2. The deceased was not a passenger, not having been accepted by any one authorized to receive passengers. Hutchinson on Car. (3 ed.) §§ 997-1000; 4 Elliott on Railroads §§ 1581-2! 96 Ark. 558; 85 Ark. 504-508; 76 Id. 106; 178 F. 894-899; 176 Id. 519. One cannot impress or impose the obligations of a carrier of passengers on a carrier by riding on a tie train. 4 Elliott, Railroads, §§ 1581-2; Hutch. on Car. (3 ed.) 1000-1; 94 Ark. 566; 111 N.W. 379; 58 S.W. 548; 153 Mass. 188; 29 N.H. 9; 149 Mass. 204; 157 Ind. 20; 63 So. Car. 46; 64 S.E. 112; 165 F. 408. Deceased rode on top of a freight car, and was in no sense a passenger. 165 F. 408; 42 S.W. 855; 58 Id. 548; 25 Id. 229; 149 Mass. 204; 40 Ark. 298-322; 16 Am. St. 520; 34 S.W. 488. He was simply a licensee, and the company owed him no duty except not to wantonly injure him. 193 U.S. 442, 449, 450; 113 Id. 218; 56 Ark. 281-275; 45 Id. 246; 165 F. 408.

3. The company owed deceased no duty to fence its track or keep its right of way clear of weeds or brush. 6 N.E. 448; 160 F. 260; 165 Id. 488; 35 Id. 43. Deceased assumed the risks. The wire gate was left open by parties in no way connected with the company. 19 A. & E. R. Cas. (N. S.) 137; Ib. 149. The Oklahoma statutes do not make railroads liable to one injured on a work train for failure to fence. 15 S.W. 805; 16 N.E. 448; 57 S.W. 948; 81 F. 133; 165 Id. 448.

4. There was no evidence of improper rate of speed. Pence was not competent to testify. 38 Mich. 537; 92 N.W. 639; 120 Mich. 127; 38 Mich. 537; 93 S.W. 752.

5. There was no proof that the track was unnecessarily crooked. 122 U.S. 189; 152 U.S. 153.

6. Deceased assumed all risks, not having paid fare and riding in an improper place. 8 A. & E. R. Cas. 151; 91 S.W. 460; 85 Ark. 460; 89 Id. 84; 93 Id. 153; 76 Id. 520; 57 Id. 160; 178 F. 432; 176 Id. 57; 211 U.S. 459.

7. It was error to submit to the jury whether or not a reasonably prudent man would have ridden on top of a car. 40 Ark. 298-322; 46 Id. 528-533; 70 Id. 603; 41 A. & E. R. Cas. 72; 105 S.W. 744-746; 60 F. 370-378; 71 Ark. 590; 41 Id. 542; 46 Id. 528; 157 F. 347-357.

8. It is the duty of the court to give specific instructions as to the amount of damages when asked. Juries are not lawyers to judge of the court's instructions. 93 Ala. 359; 9 So. 870; 69 Ark. 134; 141 F. 247; 145 Id. 157.

9. The train was engaged in interstate business only (175 F. 28); the Federal laws do not apply. 113 F. 508; 176 Id. 524; 193 W. S. 451.

Manning & Emerson, for appellee.

1. No grounds of removal to the Federal court were stated. Const. U.S. art. 3, § 1; Rev. St. §§ 629-639 (1878); U.S. Comp. St. (1901) p. 508, §§ 1, 2, 3. A suit which could not have been originally brought in the Federal court is not removable. 150 F. 580; 152 Id. 168; 155 Id. 68; Id. 499; 168 Id. 105; 175 Id. 456; 181 Id. 248, 255; 203 U.S. 449; 210 U.S. 366-9; 34 Cyc. 1250. Before the jurisdiction of a State court can be disturbed, it must affirmatively appear that a proper petition and bond have been presented in due time. 117 U.S. 430; 6 S.Ct. 799; 29 L.Ed. (U.S.) 962; 68 S.E. 920; 66 S.E. 427; 133 S.W. 38; Foster, Fed. Pro. vol. 2 (4 ed.) p. 1584; 179 F. 318; 113 U.S.742-6; 131 U.S. 240; 203 U.S. 449; Loveland, App. Jur. (1911) § 338; 204 U.S. 182; 50 Ark. 388; 87 Id. 139; Moon, Removal of Causes, § 131; 148 F. 73, 694, etc.

2. This case is governed by the laws of Oklahoma, which leaves the defense of contributory negligence and assumed risks to the jury. Const. Okl. art. 23, § 6; Comp. Laws, §§ 1389, 1390. The cases, 96 Ark. 558, 76 Ark. 106 and 85 Id. 504 are not in point. See 176 F. 519. Deceased was a passenger. Ray on Negl. of Imposed Duties, § 2, p. 6; 4 Elliott on Railroads, § 1578; 4 Hutchinson on Car. § 997, 1018, 1019, 1022; 2 White on Pers. Inj. on Railroads, § 561-2-8; 56 Ark. 549; 67 Ark. 47-53; 67 Ark. 389; 6 Cyc. 537; 92 S.W. 339; 79 F. 561; 76 A. 613; 10 Mo.App. 197; 17 So. 503; 142 Ga. 587; 64 S.E. 686; 243 Ill. 482; 90 N.E. 1057.

3. The railroad was required to fence its track and for failure is liable. 50 N.E. 116; 119 N.Y. 472; 23 N.E. 1051; 60 F. 370; 124 Mo.App. 140; 27 S.W. 476; 115 U.S. 522; 77 S.W. 439; 104 N.Y.S. 972; 110 Id. 507.

4. A witness need not be an expert in order to give his opinion on the rate of speed of a train and other familiar objects. 92 N.W. 639.

5. Whether it is negligence for a train to operate backward is for the jury. 57 N.E. 640; 74 N.E. 1097.

6. Deceased assumed no risk. The acts causing the death were the negligent failure of the company to comply with the common law and statutes of Oklahoma. 93 Ark. 119; 76 Id. 520; 87 Id. 109; 83 Id. 22; 24 Ark. 75; 126 S.W. 76. The railroad owes the highest degree of care consistent with the practical operation of its freight trains. Cases supra. Riding on top of a car is not contributory negligence per se. 177 F. 44; 3 Hutch. Car. § 1196.

7. There is no error in the charge as to damages. 96 Ark. 87; 74 Ark. 259; 91 P. 883.

OPINION

MCCULLOCH, C. J.

The plaintiff, Cassie Kitchen, instituted this action in the circuit court of Crawford County against defendant railroad company to recover damages resulting from the death of her husband, George T. Kitchen, which is alleged to have been caused by negligence of defendant's servants while he, the said George T. Kitchen, was riding on one of defendant's trains in the State of Oklahoma. The trial of the case resulted in a verdict in favor of plaintiff, and defendant appealed.

The first question presented is upon the ruling of the trial court in refusing to enter an order of removal to the Federal court. It is alleged in the complaint that the plaintiff is a citizen and resident of the city of Little Rock, Arkansas. This city is within the territorial jurisdiction of the United States Circuit Court for the Eastern District of Arkansas; Crawford County, where the action was pending, is in the Western District. The petition for removal filed by defendant is in regular form, and states that the petitioner "was at the time of the commencement of this suit, and still is, a resident and citizen of the State of Missouri, being a corporation created and organized under the laws of the said State of Missouri," and "that the plaintiff, Cassie Kitchen, was at the time of the commencement of this suit, and still is, a citizen and resident of the State of Arkansas."

When it appears from the whole record, down to and including the petition for removal, that a case is removable, then it is the duty of the State court to accept the petition and bond and proceed no further. The allegations of the complaint may be looked to, when not in conflict with the statements of the petition for removal, in order to determine whether or not the case is. removable. Texarkana Tel. Co. v. Bridges, 75 Ark. 116, 86 S.W. 841; Burlington, etc., R. Co. v. Dunn, 122 U.S. 513, 30 L.Ed. 1159, 7 S.Ct. 1262.

Here the statement of the complaint, in substance, that the plaintiff is a citizen and resident of the Eastern District of the Federal Court is not in conflict with the statement of the petition that the plaintiff is a citizen and resident of the State of Arkansas. For the purpose of determining the question of removability, the allegations of the complaint in this case may therefore be considered. This presents squarely the question whether or not a suit 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. The Federal statute provides (section 1 of the act of Congress of March 3, 1887, as amended by the act of August 13, 1888) 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." Section 2 of the same statute, granting the right of removal, provides that "any other suit, of a civil nature, it law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section * * * may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State."

The contention of the defendant is that a plaintiff, by bringing suit in a district other than that of his or her residence waives the objection on that account to a removal, and that the defendant may remove it, notwithstanding the fact that the suit has been brought in the wrong district. We think this question has been decided adversely to defendant's contention by 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. The decision of that court on the question is, of course, binding upon us. Learned counsel for the defendant insist that the Wisner case has been overruled by later cases, but we do not think so. The Wisner case was one where a citizen of Michigan sued a citizen of Louisiana in a court of the State of Missouri. The defendant filed a petition to remove the case to the Federal court. The Supreme Court of the United States decided that the case was not removable because of the fact that it could not have been...