Terminal R. Ass'n of St. Louis v. Kimbrel

Decision Date26 June 1939
Docket NumberNo. 11367.,11367.
PartiesTERMINAL R. ASS'N OF ST. LOUIS v. KIMBREL.
CourtU.S. Court of Appeals — Eighth Circuit

Arnot L. Sheppard, of St. Louis, Mo. (Thomas M. Pierce, Walter N. Davis, Joseph L. Howell and William A. Thie, all of St. Louis, Mo., on the brief), for appellant.

William H. Allen, of St. Louis, Mo. (Charles P. Noell, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER and WOODROUGH, Circuit Judges, and BELL, District Judge.

WOODROUGH, Circuit Judge.

This is a civil action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, Act of April 22, 1908, c. 149, Sec. 1, 35 Stat. 65, to recover damages for personal injuries sustained by the plaintiff, Edward B. Kimbrel, while in the employ of the defendant railroad carrier as a brakeman, alleged to have been proximately caused by the violation by defendant of Section 2 of the Federal Safety Appliance Act, 45 U.S.C.A. § 2, Act of March 2, 1893, c. 196, Sec. 2, 27 Stat. 531, providing that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars.

The trial below, before the Court and a jury, resulted in a verdict and judgment in favor of the plaintiff in the sum of $13,500, from which judgment the defendant prosecutes this appeal.

It was stipulated that "at the time the plaintiff received the injuries complained of in his petition he was a member of a switch crew employed by the defendant and was handling and switching cars that were moving in interstate commerce on the defendant's lines of railroad", and it sufficiently appears that it was dark at the time and plaintiff was working with lighted lantern.

He had set two identified cars for coupling and they had been pushed together for that purpose, but the cars failed to couple on the impact. When the plaintiff came up to the ends of the cars he found that the knuckles of both of the couplers were closed and that it would be necessary to open one of them in order to effect the coupling. As the cars stood, the pin lifter of one of them was on the side of the track where he was, and after some slack had been made he tried to open the knuckle by means of the pin lifter without going between the cars. The pin lifter would not budge and he went between the cars to open the knuckle by hand, "the very evil against which the Federal Safety Appliance Act is directed". Lang v. New York Central Railroad Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729. As he did so, the cars were pushed together without any signal given by him, his right arm was caught and injured so that it had to be amputated. The accident occurred in East St. Louis, Illinois.

The appellant has not contended that the evidence was insufficient to sustain a verdict for the plaintiff, but presents (1) that there was lack of jurisdiction, (2) that the court erred in giving certain instructions, and (3) in refusing to give instructions requested.

(1) Jurisdiction. No question of the sufficiency of the plaintiff's petition was raised in the court below, but on this appeal it is contended that it was not affirmatively shown that the action was brought in the proper district. It was brought in the District Court for the Eastern District of Missouri sitting in St. Louis, but the point is made that it was not shown that the Terminal Railroad Association of St. Louis was doing business in Missouri. The statute authorizes the action to be brought in the district "in which the defendant shall be doing business at the time of commencing such action". 45 U.S.C.A. § 56.

We had the fact of the St. Louis Terminal's doing business in St. Louis proved before us in Helvering v. Terminal Railroad Association of St. Louis, 8 Cir., 89 F.2d 739, and declared the fact in the opinion. The fact is also indicated in the last report of the Interstate Commerce Commission on the statistics of railways at page 257. Judicial notice might appropriately be taken of it. United States v. Chicago, B. & Q. R. Co., 8 Cir., 293 F. 185. However, the question as to the particular district in which the case was tried does not go to the jurisdiction of the court but merely to the venue. The court's jurisdiction to try personal injury cases under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., is plenary. The summons in the action issued in the name of the resident district judge, Honorable George H. Moore (most learned of men in the lore of St. Louis), recited that defendant was "late of" the district and defendant was served with it in the city. When the defendant being so served elected to try the case in that district, all question of the venue (if any there ever was) was waived. Wabash Ry. Co. v. Bridal, 8 Cir., 94 F.2d 117; Chesapeake & Ohio R. Co. v. Wood, 6 Cir., 59 F.2d 1017; Burnrite Coal Co. v. Riggs, 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002; Erie Railroad Co. v. Kennedy, 6 Cir., 191 F. 332; Thompson v. Hocking Valley R. Co., 6 Cir., 45 F.2d 155; Commercial Casualty Insurance Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S.Ct. 98, 73 L.Ed. 252.

(2) Instructions: By its several requests for instructions and by its exceptions taken to instructions given by the court, the defendant called...

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6 cases
  • Kurn v. Stanfield
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 24 Mayo 1940
    ...51-59. He was concededly injured while engaged in interstate commerce and the case is within federal jurisdiction. Terminal R. Association v. Kimbrel, 8 Cir., 105 F.2d 262. Marion F. Stanfield was a brakeman, fifty-six years of age, having had twenty-five years experience with the railroad.......
  • Crabtree v. Kurn
    • United States
    • Missouri Supreme Court
    • 7 Junio 1943
    ... ... J. M. Kurn and John G. Lonsdale as Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants No. 38304 ... Paul & Pac. R. Co. v ... Linehan, 66 F.2d 373; Brady v. Terminal Ry ... Assn., 303 U.S. 10, 82 L.Ed. 614, 58 S.Ct. 426. (6) A ... Ass'n. of ... St. Louis v. Kimbrel", 105 F.2d 262 and Alcorn v ... Missouri Pac. R. Co., supra ...    \xC2" ... ...
  • Funk v. Commissioner of Internal Revenue
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 25 Septiembre 1947
    ...cf. Tyler v. Lowe, 2 Cir., 1943, 138 F.2d 867; In re Aughenbaugh, 3 Cir., 1942, 125 F.2d 887; but see Terminal R. Ass'n of St. Louis v. Kimbrel, 8 Cir., 1939, 105 F.2d 262. IV. Res judicata and collateral estoppel. Paridy v. Caterpillar Tractor Co., 7 Cir., 1931, 48 F.2d 166, citing 15 R.C.......
  • Barrera v. ROSCOE, SNYDER AND PACIFIC RAILWAY CO.
    • United States
    • U.S. District Court — Northern District of Texas
    • 9 Octubre 1973
    ...Tex.Civ.App., 66 S.W.2d 347, writ dis. 11 Barber v. Intercoast Jobbers & Brokers, Tex.S.Ct., 417 S.W.2d 154; Terminal R. Asso. of St. Louis v. Kimbrel, 8 Cir., 105 F. 2d 262; 600 California Corp. v. Harjean, D.C.N.D.Tex., 284 F.Supp. 12 The opinions in each of the cases cited were adopted b......
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