White v. Missouri Pac. Ry. Co.

• Decision Date: 01 June 1915
• Docket Number: No. 17327.,17327.
• Citation: 178 S.W. 83
• Parties: WHITE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

178 S.W. 83

WHITE v. MISSOURI PAC. RY. CO.

No. 17327.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Rehearing Denied June 30, 1915.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Abrum J. White against the Missouri Pacific Railway Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Edw. J. White and Thos. Hackney, both of Kansas City, for appellant. Guthrie, Gamble & Street, of Kansas City, for respondent.

BOND, J.

Plaintiff was the engineer on a freight train engaged in interstate commerce belonging to defendant, which collided with another of its freight trains near Garnett, Kan., on February 10, 1910, causing serious injuries to the plaintiff, who sued for such injuries in the circuit court of Jackson county, Mo., on the 24th of September, 1910, alleging in his petition, in substance, that the officers, agents, and employs of the defendant negligently caused and permitted its two freight trains to come into collision with each other, and thereby to injure the plaintiff as set forth in his petition. The answer to the defendant averred that the injury to plaintiff was caused by his own negligence, and was a risk assumed by him under his employment. The case was tried before a jury, and a verdict rendered for plaintiff on the 20th of June, 1911, for $15,000. The trial court directed a remittitur of $3,000, which was entered by the plaintiff, and thereupon judgment rendered for $12,000, from which defendant has duly appealed.

I. It is insisted by the learned counsel for appellant that the state court had no jurisdiction of this cause; the ground of this contention, as we understand it, being that state courts acquired no concurrent jurisdiction of causes arising under the federal Employers' Liability Act of 1908 until the subsequent amendment thereof on the 5th of April, 1910. Wherefore it is urged by appellant that plaintiff, who was injured between the date of the original act and its subsequent amendment, was not entitled to invoke the jurisdiction of a state court. This notion is wholly untenable. Plaintiff's cause of action arose after the enactment by Congress of the federal Employers' Liability Act. Immediately following that legislation, state courts, in virtue of their powers as such, were possessed of jurisdiction of any causes arising under the act whenever the facts in question brought matters in controversy within the local jurisdiction of the state courts. It is true the amendment of April 5, 1910, among other things, provided for concurrent jurisdiction on the part of the courts of the United States with that of the state courts, and for the irremovability of any cause properly brought in a state court; but in Fish v. Chicago, R. I. & Pac. Ry. Co., 172 S. W. 340, the entire federal act after its amendment is literally set out, and it was there ruled by this court in banc, following the Supreme Court of the United States in Second Employers' Liability Cases, 223 U. S. 56, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, and other authorities, that the courts of several states were possessed of jurisdiction for violations of that act, not by the terms of its amendment, but by the provisions of the original act. The purpose of the amendment, among other things, was to prevent the removal of causes which, though brought in a state court, might; otherwise than for the amendment in certain cases have been removed to a federal court. The amendment did not vest original jurisdiction in state courts. It recognized it as rightfully existing in them.

The case at bar was properly brought in the circuit court of Jackson county. Plaintiff's cause of action arose for an alleged violation of the federal Employers' Liability Act, which had been enacted by Congress and approved on the 22d of April, 1908, and his right to sue therefor was wholly unaffected by the amendment to said act, which, though adopted after his cause of action arose, related solely to the remedies provided for the enforcement of his anterior cause of action. There is clearly no merit in appellant's contention that the state court had no jurisdiction of this action.

II. Appellant also assigns for error the giving of certain instructions, and the admission of certain evidence....