ARlt.] MISSOURI.PACIFIC RD. CO . V. HENDRIX. 825 MISSOURI PACIFIC RAILROAD COMPANY V. HENDRI%. Opinion delivered November 16, 1925. 1. REMOVAL OF CAUSE—EMPLOYERS' LIABILITY ACT.—Under the Judi-. cial Code, § 28, providing that no c • ase under the Employers' Liability Act brought in a State, court of competent jurisdiction shall be removed to •any court Of the United States because of diversity of citizenship, a railroad company, sued for an injury to an employee alleged to have occurred in interstate commerce, cannot, on motion to remove the case to the Federal Court, raise an issue as to the injury having occurred in interstate commerce, as the character of plaintiff's action must be tested by the allegations of the complaint. 2. MASTER AND SERVANT — NEGLIGENCE AND PROXIMATE CAUSE—SUF-- • FICIENCY OF EVIDENCE.—Evidence held sufficient to show that defendant railroad company was negligent in permitting a shaker. bar in a locomotive engine to get out of repair, and tbat such negligence was the proximate cause of injury to plaintiff's hand`when attempting to shake fire grates. 3. MASTER AND SERVANT — JURY QUESTIONS.—Whether a shaker. .bar on a locomotive engine is an appliance so simple in its appearance and use that there was no duty of inspection on • the part 'of the railroad company, and whether an employee in using it assumed the risk oP was negligent in using the shaker bar, held for the jury. 4. MASTER AND SE RVA NT—ASSUMED RISK—CONTRIBUTORY NEGLIGENCE. —An employee who had no opportunity to inspect tools furnished
826 MISSOURI PACIFIC RD. co. V. HEI■TDRIN.. [169 and no choice as to what tools he would use was not chargeable with assumed risk or contributory negligence, unless danger from the use of a particular tool furnished was so obviou that a man • Of ordinary Prudence would not use it. 5. TRIAL—DENIAL OF REQUEST FOR INSPECTION. —ID an action for in-, jury to an employee's hand, sustained in attempting to shake clinkers and ashes from the firebox of an engine, denial , of defendant's request that the jury inspect a similar engine was not error, there being no statutory authority for such inspection, ' as Crawford & Moses' Dig., §1295', relates to inspection of real • property onlY. APPEAL AND ERROR—CONCLUSIVENESS OF . VERDICT.—In an • action for personal injuries, the element of pain and suffering is one which must be left largely to the sound judgment of the ,jury ; and their conclusion as to the proper amount should not be disturbed unless the amount is clearly excessive. 7. DAMAGES—AWARD — EXCESSIVE AMOUNT.—Where an injury to an employee's hand caused infection, incapacitating plaintiff from performing manual labor over , a period of , almost two years and up to the time of trial and causing great pain, an award of $7,500 held not excessive. ;Appeal from_Lawrenec Circuit Court, Eastern District • ; Dene H. Coleman, Judge; affirmed. Thomas B.' Pryor and H. L. Ponder, for appellant. W. P. Smith, Pace & Davis and Tom W. Campbell, for appellee. . • '1\icCuL.Locll, C. J'H The plaintiff, Charles Hendrix, reeeived persOnal injuries while working in the service of the defendant, and he instituted this suit to recover compensation, alleging that his injuries resulted from neg.- ligence 'on . the part of defendant in failing to exercise ordinary care to furnish reasonably safe appliances with which he.was required to work.' It was alleged in the complaint that the defendant was an interstate carrier of freight and passengers, that the locomotive engine on -which plaintiff was working at the time he received his injUries was hi use in interstate commerce, and the right of' action was predicated on the federql employers' lia-bility- act. Defendant, in apt time, filed its application and bond for removal of the cause to the federal court on the
ARK.] MISSOURI PACIFIC RD. CO . v. HENDRIX. 827 ground of diversity of citizenship; but the court denied the petition, wheretpon : defendant filed . its anSwer denying the allegations of negligence and pleading contribu'- tory negligence and assumed risk on the part of the plaintiff, and the cause went to trial , before a jury. The trial resUlted in a verdict in favor of plaintiff, assesSink dam-age8 in the sum of $7,500; from which judgment the defendant . has &Lily prosecuted this appeal. ' ; It . is first 'cOntended that the judgthent should be reversed beeauSe of the : O'ourt'S tilling in denying ' the petitiOn° for removal to the federal court. The federal statute (Hopkins' Judicial Code, § 28) expressly pro: vides that no case under the OmployerS' :liability act brought in a State court of:competent jurisdiction shall be . reMoved to any court of the United States 'because of diversity of citizenship: ThiS provision 'of the . stat: ute has been uphel c d i t b y Y the SupreMe Court of the United States in Kansas Southern Ry. Co: v. Leslie, 238 IT: S. 59 -9. The 'defendant; in' its petition -for remoVal; traverses the allegations in; the complaint -with .respeet tO plaintiff's. injury having occurred while eagaged: in interstate commerce, and it is contended now by "cohnSel that this raised an issue of fact which should:have been tried. by the. United States District :Court onamotion te remand . This argument is unsound for the reasen that the character of the plaintiff's 'cause of action must- be tested by -the allegations of the coMplaint, .and no 'issue of: facts can be raised concerning the sande except appropriate allegations of fraud on . the part of plaintiff in misjoining defendants in order to defeat"the right of the petitioner to remove to the federal court because of diversity of citizenship. In other words, the defendant had no right to try out the issUes arising on the Merits of the, case f or the purpose of obtaining a removal of the cause. Southern Ry. Co. A T ,. Lloyd, 239 U. S. 496; Frazier v: Hines, 260 Fed. 874. It is next contended that the evidence is noi suffieient to sustain the verdict, in that it fails to : establish , heg-1i„:9;enee on the part of the defendant, and, on the COntrary,
828 MISSOURI PACIFIC Rp. Co. V. HENDRIX. [169 shows that the plaintiff assumed the risk and was guilty of contributory negligence , which (barred his . right of re-: covery. Plaintiff, at the time of his injury, was regu.-: larly employed by defendant as engine watchman at the roundhouse at Hoxie, Arkansas, and on the night of °June 16, 1922, he was sent by his foreman to take charge of an engine near Neelyville, MiQgrynri . T11P Angine in question was pulling a passenger train en route to St. Louis, and it was halted behind a wrecked freight train, and had to remain there all night. Plaintiff, pursuant to ,the orders of his foreman, went to Neelyville on %mother train and took charge of the engine to watch it during the night, and the engineer, and fireman left the engine as soon as plaintiff , reached it. , Plaintiff received injury to one of his hands in shaking down the cinders and ashes in the engine in order to keep the fire going, and It was a part of'bis duty to do that. It is explained in the testimony that the fire grates are in four sections, and that each of the section§ has to be shaken in order to relieve the ' congestion Of clinkers .and ashes. There is attached to each of the 'sections an extension called a brake staff, which extends up through the . floor of the cab about ten inches, and an iron bar, called the shaker-bar, iS used by attaching it to the brake-staff in order to move the grate back and forth when shaking down its contents. The allegations of negligence relate to the condition .of the shaker-bar, it being alleged that it had become worn and cracked so that when in use it slipped and became disconnected from the brake-staff. Plaintiff testified that when it became necessary for him to shake down the ashes and clinkers he attached the shaker-Ibar, which was four or five feet long and about two inches wide, to one of the brake-staffs and proceeded to move it, when, on account of the defective condition, it *becalm suddenly diseonnected froM the staff, and his hand was thrown against the boiler and mashed. He testified that afterwards he examined the end of the shaker-bar and found that the cuff on the end of it, which served the purpose of slipping down over the end of the
ARK.] MISSOURI PACIFIC RD. CO . v. HENDRIX. 829 staff and holding the bar in place, Was worn on the undeyt side and craeked. • • • According to the evidence, there was in use on some of. the engines of the defendant a . shaker-bar with a pin attached thereto by a chain, and there was a hole , through the cuff of the bar 'and a correspondingene on the brake-staff, so that the pin could be inserted and'the. bar. held secure on 'the staff. This was, according to. the testimony; rather a 'recent appliance,.and. was only in use on Some of the engines. It was mot in use on the engine of ,which plaintiff was placed in charge. There was an allegation of negligence in failing to have any pin on the shaker , bar, but we need hot determine whether . or not this constituted negligence, for we are of the opihion that the evidence was sufficient 'to: show that defendant was guilty of negligence in permitting the Shaker-bar to get out of repair. There is a &Inflict in the testimony aS! to whether the 'worn condition of the Shaker-bar was the cause of its slipping off the staff. The witnesS introduced by 'appellant testified -that . the more the . bar was worn .the further down it would Work on the staff, thereby preventing slipping, but according to the testi., mony of plaintiff the worn and cracked condition of the shaker l bar was the cause of it beComing disconnected with . the staff. This conflict must be treated as settled by the verdict of the jury, and it is sufficient to show that the -defect was the proximate .cause of the injury: Counsel for defendant. invoke what . iS generally .referred . to las the simple tool doctrine, and contend that the shaker-bar was an appliance or tool so simple in its appearance and use that there was no duty of inspeetion on the part of the master. We do not agree with counsel that the so-called doctrine, to, whatever extent, it ha's gen-- erally been applied, has any application to the 'facts of the present case. C. R. I. c6 P. Ry. Co. v. Smith, 107 Ark. 512 ; Wisconsin-Arkansas Lbr. Co. v. Ashley, 158 Ark. 379. It was a question for the jury to determine , whether the danger Arising from the defective condition of the appliance, which formed a part of a somewhat complex equip-
830 MISSOURI PACIFIC RD. CO . V. HENDRIX: [169 ment, was such that it was reasonably to be anticipated that injury might result. It is not 'for :the court to • say that the simplicity of the appliance was so obvious that an inspection for defects was unnecessary. Nor ean it be said as a matter of law that plaintiff -either assumed the risk or was guilty of contributory'negligence, Plaintiff testi-6.0 th q t lier es w ns Pri light on the engine, and that; though he could have procured his torchlight and examined the bar before using , it, he did not consider it necessary to do so. He testified fUrther that the- injury oécurred when he attempted , to' shake Abe first one of the grates. The evidence was sufficient 'to warrant a finding that there . was a diScoverable- defeet in the shaker-bar—a defect which could have-been : discovered upon reasonable inSpection— , and :the duty --of inspection' rested UpOn the master, not upon the : servant. The standard of care in TliScovering defects is different as to-master and servant, and- it cannot be . said that Ahe plaintiff was guilty of any negligence or that he -assumed the risk in failing to make ,such an inspection as was sufficient to 'discover the defects, wihereas the eYidence , warranted a finding that there was a failure to make Such an inspection as the master should have made. In testing the duty of the plaintiff as to his' use , Of the shaker-bar in performing his labor, the : fact miist not be overlooked that he waS out on the road with an engine and not, onlY had no reasonable opportunity to inspeCt the tools furnished'him, but he 'had no choice ' -as to what tools he would use. Under those-circumstances he is:not chargeable with the assumption of risk or contributory negligence unless the danger from the of the particular tool was so obvious that a man of ordinary prudence would not use it. Fordyce v. Edwards, 60 Ark..438 ;:L. J. Smith- Constructio'n Co. v. Tate, 151 Ark. 278. There are numerous . Assignments of error with re:- sPect to refusals to give instructions requested- by de-fendanFs counsel: There is no objection made to the eharge of the cOurt upon its oWn -Motion and on request's for instructions made by the plaintiff. The instructions
MISSOURI PACIFIC RD. CO . v. HENDRIX. 831 of the court were full-and complete on all branches of the case and embraced several. instructions requested.hy the defendant. MoSt of the refused instructions were in conffict with, settled principles of the law, and the court's ruling . was correct. • , Others were fully covered by the cpurt's . charge. We find it unnecessary ,to set out these instructions in detail. . , The defendant ,introduced as, a witness Torn Harris, the . chief foreman of.its shopSin North Little Rock, and in '. COnnection with his testimony exhibited to :the 'jury the 'grate's, levers, staffs and hanale-bar ordinarily in suSe on . the engines, Harris testified with respect thereto and eXplained to the jury the 'use of each part: These appliances were not from the engine en..whieh plaintiff Was working when injured, but: the exhibits were.Merely used as ilhistrations to the jury in.. exPlanation or the' Methed in Which the Work in which plaintiff was engaged was ordinarily Performed. At the conclusiOn of Harris? testimony the 'defendant's counsel asked that-the dburt ifiake an' order : directing the sheriff •te take the jury out to , inspect anengine on one' of the tracksin Walnut Ridge, where; the case was being tried.. Plaintiff's counsel then inquired whether or not the:engine in question was .the one on which.plaintiff was hurt, .and counsel replied that it Wasfnot the same- engine, but that it contained the same kind of , equipinent. .The court denied the request,: and this:ruling is:assigned as .error. •We do not.think,.how-, ever; that there was 'any error' Committed. There is no; statute .proy iding . for such an inspection . , as the only statute on that subject (Crawford & Moses . ' Digest,- 1293) relates to ins p ection of. real 2property:by a 'trial jury in a law case. There was certainly no abnse of dis.-- cretion by . the court in refusing this request. :It is unnecessary for us :to decide whether or not it would :have been a Proper exercise of discretion to permit it to -be done. It *as certainly unnecessary to do so, and there wa.s ho prejudice in . the-refusal becanse the equipment had been fully explained and similar equipnient had been exhibited- to the jury.
832 MISSOURI PACIFIC RD. CO . V. HENDRIX. [169 Finally, it is contended that the verdict is excessive. ACCording to the testimony in the case, the injury to plaintiff's hand was thought at first to be slight, and the next morning he reported to diis foreman that his hand Was slightly hurt, and he had it wrapped up at that time. Sliortly afterwards it became infected, and according to the testimony the injury was wry painful and continued to 'be so up to the time of the trial, and the condition of plaintiff's hand was such that he was totally incapacitated from performing manual labor. He worked for a short time in the service of defendant, but soon quit that work, and it was difficult for him to find employment. The• injury : occurred on June 16, 1922, and the serious condition of plaintiff's injury continued up •to the time Of the trial in March, 1924. Plaintiff testified that his hand was imworse condition from March, 1923, up to the time he: went to the hospital in September, 1923, but began to . get better then. Plaintiff was in vigorous health up to the time of his injury, and was earning more than four, dollars a day, with steady eanployment, and on account of the' injury he was totally disabled. He testified that hewas only able to earn thirty or thirty-five dollars during the two years from the date of the injury up to the time of the trial, mid that he was still under this dis: ability. His hand -in the damaged condition was ex-' hibited to the jury, and was closely observed by the members * of 'the jury. Considering plaintiff's loss of earning capacity and the pain resulting from the injury, extending over so long a period of time, we cannot say the aWard , of damages was excessive. According to the testimony, the loss of edrnings up t6 the time of the trial amounted to about $2,500, and the testimony reasonably warranted the inference that the loss would continue for a 'considerable length of time thereafter, thmigh the injury "was not permanent. The element of pain and suffering is one whicb must be left largely to the sound judgment of a trial jury, and the conclusion reached by the jury as to the proper amount should not be disturbed
unless the award is clearly excessive. Considering the testimony as a whole, we are unable to say that the award is ekcessive. Judgment affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.