St. Louis & S. F. Ry. Co. v. Kirk

Anderson, J., delivered the opinion of the court. . The appellee, John R. Kirk, sued appellant, St. Louis & San Francisco Railway Company, in the circuit court of Lee county, for damages for a personal injury received by him, through the alleged fault of appellant, while said Kirk was engaged as an employee of appellant in the capacity of switchman in its yards at Amory, and recovered a judgment of five thousand dollars, from which appellant prosecutes this appeal. The ground upon which appellee based his right to recover was that he received the injury complained of because of a violation by appellant of section 2 of the federal Safety Appliance Act (27 Stat. 531, 8 U. S. Comp. St. 1916, section 8606, p. 9025), in that the cars in use by appellant which appellee was attempting to couple when injured were not ‘ ‘ equipped with couplers coupling; automatically-by impact,” as required by said statute. Appellant duly presented a proper petition and bond to remove the case into the proper federal district court of this state, on the ground of diversity of citizenship. The trial court, after hearing argument on the application to remove, first announced, that an order would be made granting the removal, but before the formal entry of the order of removal, and during the same day the application to remove was heard, the court announced — 617 — that the order of removal would not he then entered, hut would be delayed to a subsequent day of the term, to enable the court to further consider the matter. On a subsequent day, during the same term, the court reversed itself, and overruled the application to remove. The three main questions presented in the argument are: (1) Whether or not the court below erred in refusing to grant an order of removal. (2) Conceding that the case was not removable, whether or not the court after having made an order of removal could, even at the same term, reverse itself apd overrule the application to remove. (3.) Whether or not the evidence for appellee was sufficient to go to the jury on the question of appellant’s liability for the injury complained of. We will consider the questions in the order stated. Beyond controversy, at the time of appellee’s- injury, appellant was engaged-in interstate commerce while appellee was employed in the same character of commerce; the jurisdictional amount was involved, and there was diversity of citizenship. Appellee concedes that the case would be removable to the federal court except for the amendment of April 5, 1910, to the federal Employers’ Liability Act (U. S. Comp. St., section 8662), which provides in substance that the jurisdiction of the courts of the United States under that act shall be concurrent with that of the courts of the several states, and that no cause arising under the act brought in a state court having jurisdiction shall be removed into any court of the United States. Appellant contends, that that amendment has no application, because this is .a. case brought under the federal Safety Appliance Act (U.'S. Comp.. St., section 8605 et seq.), and not under the federal Employers’ Liability Act (U. S. Comp. St., sections 8657-86&5j. Appellee in his declaration, after setting out the diversity of citizenship between the parties,- stated the ground upon which he sought to recover, in the following language: — 618 — “That at the time of the wrongs and injuries- hereinafter complained of, plaintiff was an employee of said defendant, and as such was employed by said common carrier by rail in interstate commerce. That on January 31, 1923, said plaintiff was employed by said defendant as a yard switchman, in its yards at Amory, in Monroe county, Miss., and it then and there became and was- the duty of said plaintiff to couple and uncouple cars, and otherwise assist in making up the freight trains of said defendant company for their interstate journeys. That on said 3-lst day of January, 1923-, while the said plaintiff was employed as switchman aforesaid, it then and there became and was the duty of said defendant company to furnish the said plaintiff1 with cars properly equipped with automatic couplers, as is required by an act of Congress, known as the federal Safety Appliance Act; yet the said defendant, ■ not regarding its duty in this- behalf, permitted said switchman to work on a train of cars-, a part of which were not properly equipped with automatic couplers in accordance with said act, but on the other hand two of said cars, which were then and there being used for1 interstate shipments, to-wit, Pennsylvania car No. 858172, and Illinois Central car No. 22877, were defectively equipped with couplers, in this, that the couplers on said ears- were not equalized or were out of line or not properly adjusted, that by reason of said defect in said couplers, it then and there became necessary for said plaintiff to go between said cars for the purpose of coupling same, .and while he was between said cars, mailing an effort to- equalize said couplers in order that they would couple, his hand was caught therein and was so bruised, wounded, and mangled that it became necessary to amputate practically the entire hand.” Every averment necessary to bring the cause under the federal Eimployers’ Liability Act is contained in the declaration. Nevertheless the ground of negligence relied on by appellee consisted as averred in the declaration — 619 — of a violation of the federal Safety Appliance Act by appellant in that the cars used by it cansing the injury, were not equipped with couplers that would couple by impact automatically. For that reason appellant contends that the amendment of April 5,1919, to the federal Employers’ Liability Act has no application to this cause; while appellee contends that by the very terms of the Employers’ Liability Act a violation by the carrier of section 2 of the federal Safety Appliance Act in using cars not equipped with couplers coupling automatically by impact is made a ground of recovery under said former act. The concluding clause of section 2 of the federal Employers’ Liability Act, 35 Stat. 66 (8> U. S. Comp. St. 1916, section 8658, p. 9422), is in this language: “Or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equip- . ment. ’ ’ Section 3 of said federal Employers’ Liability Act (35 Stat. 66, 8 U. S. Comp. St. 1916, section 8659, p. 9423), contains this proviso: “Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of .such employee. ’ ’ Section 4 of said federal Employers’ Liability Act (36 Stat. 66, 8 U. S. Comp. St. 1916, section 8660, pp. 9427, 9428), is in this language: “In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute, enacted for the safety of employees contributed to the injury or death of such employee. ’ ’ — 620 — It appears that the purpose of Congress by the above provisions of the federal Employers’ Liability Act was to integrate into and make a part of said act the several sections of the Safety Appliance Act providing for the safety of employees. The federal Employers’ Liability Act, as section 2 thereof clearly shows, recognizes that rights of action may arise out of a violation of the Safety Appliance Act, for which suit may be brought under the former act. Roberts’ Federal Liabilities of Carriers, section 529, p. 921. It seems that the case of St. Joseph & Grand Island Railway Co. v. Moore, 243 U. S. 311, 37 Sup. Ct. 278, 61 L. Ed. 741, settles this question in favor of appellee’s contention. That was a suit under the federal Eimployers’ Liability Act. It is true that the court in its opinion stated that “the applicability of the Employers ’ Liability Act to the case was admitted from the beginning.” However, even though that admission had not been made, the facts of the case clearly showed it was governed by the Employers’ Liability Act. It is true in that case as in this the ground of recovery relied on by the plaintiff was a violation by the defendant of the Safety Appliance Act. An application was made in that case to remove to the federal court, upon the ground of diversity of citizenship. The court held that removal could not be had because of the amendment to said act of April 5', 1910. The trial court having1 erroneously made an order removing the case into the federal court, could it at the same term of the court reverse itself by making an order denying removal? Appellant’s contention is that by the first order the court divested itself of jurisdiction to make any further order in the cause, and the federal court became invested with jurisdiction, and that thereafter the question of the rightfulness of the removal was entirely with the federal court. There seems little difficulty under the authorities in solving* this question. An order removing a cause from a state court to a federal court, — 621 — which, is not removable, may be rescinded. The question of jurisdiction is> one of law, and a court cannot by an erroneous decision divest itself of jurisdiction and confer jurisdiction on another court, which under the law has no jurisdiction. An order of removal of a cause not embraced within the removal statute is void; and has no legal effect. 23 R. C. L., section 161, p. 779; 15 Corpus Juris, section 106, p. 810, section 173, p. 852, and notes. •Was the evidence sufficient to put the appellee’s case to the jury on the proposition that his injury was caused by a coupler that would not couple automatically by impact? Appellant says the evidence is insufficient, because it shows without conflict that appellee went between the cars and undertook to manipulate the drawhead in order to malm the coupling', without first permitting; the cars to come together for the purpose of making the coupling automatically by impact. It seems that a complete answer to appellant’s position is contained in the evidence of appellee, which the jury found to be true, and that is, he saw before going between the cars that the couplers were out of line, and he tried the' lift lever and it would not open the knuckle, and it was apparent after going this far that the coupling had to be made otherwise than automatically by impact. It was not necessary for appellee to make an experiment which he knew in advance was going to be a failure. He simply testified that he knew from longj experience by appearances in connection with his effort to open the knuckle of the coupler that the cars would not couple automatically by impact. It is true appellant’s evidence tends to show that before and after the injury these cars did couple automatically by impact, but the effect of that testimony was only to make an issue for the jury as to the truth of appellee’s case as made by his own evidence. We do not deem the other questions argued of sufficient importance to call for a discussion. Affirmed.