Supreme Court

ARK.] KANSAS CITY , SO. RY. CO . V. LESLIE. 305 KANSAS CITY SOUTHERN RAILWAY COMPANY V. LESLIE, ADMINISTRATOR.

Opinion delivered April 6, 1914. 1. REMOVAL OF CAUSES-FEDERAL EMPLOYERS' LIABILITY ACT-WRONGFUL DEATH.-It is proper for the trial court to refuse to transfer to the Federal court, an action _brought in the State court, by the admin­istrator of the deceased, to recover damages on account of the wrongful death of deceased, caused by the negligence of defend­ant railroad company. (Page 316.)

2. PLEADING-UNNECESSARY ALLEGATIONS-DEMURRER-MOTION TO MAKE MORE DEFINITE AND CERTAnst.—Although a complaint is redundant in parts and contains unnecessary detailed descriptions, if, on the

whole, it contains allegations sufficient to state a cause of action, it is proper for the court to overrule a demurrer thereto, and to overrule a motion to strike and to make more definite and certain. (Page 316.)

2. CONTINUANCES - AMENDED COMPLAINT - SURPRISE - DEFENSEL\ -% Al­though an amended complaint was filed less than ten days before the date of trial, where the evidence showed that defendant had thoroughly investigated the facts therein alleged, and the amended complaint merely restated the allegations of the original corn-

306 KANSAS CITY SO. R. CO. v. LESLIE. [11 plaint more fully, the refusal of the court to grant a continuance on defendant's motion, held, not to constitute prejudicial error.

(Page 317.)

4. EVIDENCE—ADMISSION OF INCOMPETENT TESTIMONY —HOW EXCLUDED.— Where testimony is admitted over objection, which is competent and relevant at the time of its admission, but such testimony is later rendered incompetent by evidence subsequently introduced, it is the duty of the objecting party to move to exclude the testi7 mony after it appears that it is incompetent. (Page 319.)

5. MASTER AND SERVANT—DEATH OF SERVANT—SAFE APPLIANCES—SAFE PLACE TO WORK.—It is the duty of an employer to provide his ser­vants with a safe place in which, and with safe appliances with which, to work, and where the employee of a railroad company is killed, it is a question for the jury, whether the railroad provided proper and safe appliances on its cars, for the use of its em-ployees, in the course of this employment. (Page 321.)

6. EVIDENCE—CROSS EXAMINATION —QUESTION NOT RESPONSIVE TO EXAM-INATION IN CHIEF —Where, on cross examination, a witness is asked a question which is not responsive to the examination in chief, but which is otherwise competent and relevant to the issue, the answer is properly admitted, when the objecting party does not specifically object to the question on the ground that it is not responsive to the examination in chief. (Page 322.)

7. MASTER AND SERVANT—DEATH OF SERVANT—PROXIMATE CAUSE—CIR-CUMSTANCES.—Where deceased was killed by the operation of a train, when there were no eyewitnesses to the injury resulting in death, negligent acts of defendant company may be shown to be the proximate cause of the death, by circumstantial evidence. (Page 324.)

8. EVIDENCE—ADMISSIONS AGAINST INTEREST —ACTION FOR WRONGFUL DEATH.—In an action by the administrator under the Federal Em-ployers' Liability Act as amended April 5, 1910, for damages on ac­count of the wrongful death of an employee, due to the negligence of the railroad company, where the two causes of action given by the statute are tried together, evidence of admissions by deceased against his interest, as to the cause of his death are properly ex­cluded in the 'action to recover for loss of contribution to the widow and child of the deceased. (Page 327.)

9. EVIDENCE—TESTIMONY COMPETENT FOR ONE PURPOSE—ADMISSIBILITY.— Where evidence is competent in a cause for a specific purpose and otherwise incompetent, it is the duty of the party offering the same to request the court to admit the testimony for the purpose for which it is competent. (Page 329.)

10. EVIDENCE—ACTIONS UNDER FEDERAL STATUTES —RULES.—In an action brought in a State court to enforce rights given by a Federal stat-

ARK.] KANSAS CITY SO. BY. CO. v. LESLIE. 307 ute, the rules of evidence of the State court control, unless other­wise provided by the Federal law. (Page 329.)

11. APPEAL AND ERROR—OBJECTIONS TO INSTRUCTIONS —FAILURE TO AR-STRACT.—Where appellant fails to abstract specific objections to the rulings of the trial court, in the giving and refusing prayers' for instructions, the objections will not be considered. (Page 331.)

12. JUDGMENTS—CONSOLIDATED CAUSES OF ACTION—FORM OF VERDICT.—In an action under the Federal Employers' Liability Act, where the

judgment rendered does not separate the amounts found due for pain and suffering and for compensation for loss of contributions,

but where the judgment clearly is not excessive, when all the proper elements of damage are considered, the form of the verdict and judgment will not be held to be prejudicial. (Page 331.)

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge ; affirmed. STATEMENT BY THE COURT. This is a suit brought by the appellee as administra­tor of the estate of Leslie A. Old, deceased, for the bene­fit of the widow and her infant child, under the.Federal Employers' Liability Act and its amendment of April 5, 1910. The suit is brought for the loss of contributions . to the widow and child by reason of the death of Old, and -also for the conscious pain and Suffering which Old endured before his death, which, under the act, survived to the administrator for the benefit of his widow and child. The complaint, after alleging the incorporation of the appellant, and that it was engaged in interstate coin-Merce, and after alleging that Leslid A. Old was in the employment of appellant as swing brakeman, actually en­gaged at the time of his injuries as such brakeman on a train that was being operated : at the time in interstate _commerce, alleged "that his work required him to look after and pass over th'e tops of the cars composing the middle section of said train; that there were two box cars or refrigerator cars of equal height, and that immediately in front of these two cars was an oil tank car; that the floor of this car was seven or eight feet lower than the runway on top of the refrigerator car immediately in its rear ; that there were no ladders or grab-irons or

308 KANSAS CITY , SO. RY. CO. v. LESLIE. [112 hand-holds on the end of the box or refrigerator car to enable the brakeman to safely get from the top of the box or refrigerator car onto the platform or runway on the oil car immediately in front of it, except a ladder or grab-iron down the side of the refrigerator car some distanca from the end thereof, that the absence of these grab-irons or hand-holds or ladders down the end of the box or refrigerator car made it unnecessarily hazardous for the brakeman to pass from the top of the box or refriger­ator car to the platform or walkway of the oil tank car immediately in front of it ; that there were no grab-irons • or hand-holds on the end of the oil car or tank car imme­diately in front of the refrigerator car or any other ap­pliances thereon to enable a brakeman in passing from the rear car to the oil car to hold to and steady himself

while making the passage." The complaint further alleged "that the engineer of said train was negligent on the occasion of deceased's in­jury in tlermitting his air to become out of order or in carelessly manipulating his air in such manner that said train was caused to jerk violently and unusually, which jerking contributed to the injury of plaintiff's deceased as aforesaid." There were further allegations in the complaint to the effect that the defendant was negligent in making up said train "in carelessly and negligently placing the oil car or tank next to the box or refrigerator car knowing the platform or walkway oh the oil car was some six or seven feet lower than the top of the box or refrigerator car, without providing some means or appliances on both the refrigerator car and the oil car which would enable brakemen to get from one to the other without any un­necessary danger." There is an allegation to the effect that the acts of negligence complained of were unknown to the de-ceased, and by reason of his inexperience as a brakeman, he was unable to, and did not, appreciate the dangers

arising from said acts of negligence.

ARK.] KANSAS CITY SO. RV. CO. v. LESLIE. 309 There was a furtherrallegation to the effect that "by reason of the absence of such hand-holds or ladders on the end of said box car or other proper appliances which would have enabled deceased to safely go from the top of said box car to said oil car, concurring with the un­usual and violent jerking of the train as it passed out of Page, deceased was unable to get from the top of the box car to the oil car, and while in the effort to do so, and while in the exercise of due care himself, he was thrown between the ends of the said cars, or fell between the ends of said cars" and received the injuries, which were specifically described. The complaint concluded with a-prayer for damages on account of pain and suffering in the sum of ten thou­sand dollars and for loss of contributions in the sum of fifteen thousand dollars, and for a judgment in the total sum of twenty-five thousand dollars. The appellant in due time and form, filed a petition and bond for removal of the cause to the Federal court, which was overruled. The appellant also moved to have the complaint . made more definite and certain, which mo­tion was overruled. Appellant then demurred, and its demurrer was overruled. Appellant then moved to strike out certain portions of the complaint, which mo­tion was overruled. Appellant then answered, denying the allegations of the complaint and setting up the de­fense of contributory negligence. The appellant then filed a motion for a continuance, which was overruled. The appellant duly excepted to the rulings of the court on its motions and in overruling its demurrer. The cause was then sent to the jury, and the testi­mony developed the following facts, as stated by counsel for appellee, which we find to be substantially correct. On the forenoon of March 24, 1913, Leslie A. Old was sent out from De Queen, Arkansas, as middle brake­man on appellant's through freight train to Heavener, Oklahoma. Old was called for service on the train about an hour before it left De Queen. Appellant's road tra­

verses a mountainous country, and there were some

310 KANSAS CITY SO. By. 'CO. v. LESLIE. [11.2 heavy grades from Mena north. Before descending these grades, it was necessary for the brakemen to go over the tops of the cars and turn up the retainer valves on from .75 to 80 per cent of the loaded cars, in order to assist the engineer down grade, and after the descent was made it was then necessary for the brakemen to again

go over the tops of the cars and turn the retainer valves down. It was upgrade from Meim to Rich Mountain, and from Rich Mountain to Page, where. the injury oc-curred, it was down grade. From Page two miles north it was up grade and then north down grade set in. The train arrived at Page at 8 o'clock at night and stopped

there to get orders for future movements. Old and the head brakeman and the conductor all went in the station house at Page to secure their orders. They then -left the station house to take up their duties on the train. The head brakeman came out first with orders for the engi­neer and proceeded to the front end of the train. Then the conductor came out and walked to the south end of the platform, about eighty feet from the station, and

stopped. By this time the train had Started slowly for-ward. Old passed the conductor, with his lantern, going south, and a very short- time thereafter the conductor

saw some man with a lantern climb up on the train about eighty feet south of him and from the point where he saw Old go. As the train moved slowly along a Man with a lantern on top of the train, going north, passed the con-

ductor. The car that the man was on was the second car in the rear of the tank car. As the train moved out there was a violent and unusual jerking of the cars, two jerks being especially noticeable. Just after the last heavy jerk some one was heard to cry out "Oh, Oh!" as if calling for help. After the train passed out a witness whose attention was attracted by the unusual jerking of the train went out on the track to discover what was the cause of the jerking, and ninety-five yards north of the front door of the station he found Leslie Old lying on the track between the rails with both legs cut off be­tween the knees and the feet, one shoulder crushed and

ARK.] KANSAS CITY 80. RY. CO . v. LESLIE. 311 mangled, part of the left hand crushed off, and skin knocked off his head. Some fifteen or eighteen feet south of where he lay his lantern was_f ound lying on the track between the rails, with the broken globe lying around it. About seven feet north of the lantern blood and small pieces of bone were found -on the rail nearest the depot, and pieces of bone and blood were also found between this point and where the deceased lay. There were no signs of blood or bones anywhere else: The two cars immediately in the rear of the tank car complained of were S. F. R. D. cars, of the same type and height. The tank car was a large iron tank set upon a frame in the nature of a flat car, and that part of the floor of this car between the tank and the outer edge was the only walkway or passageway over this tank car. The tank car had side rails on the outer edges of the side of • the car which lacked twenty-four inches coming to the end of the frame of the car. The only applian6e fur­nished the brakemen to pass from the top of the S. F. R. D. car to the tank car was a side ladder on the end thereof. One had to step from this side ladder onto the end of the tank car and grab to the end of the side rail on said car. From the side ladder to the nearest end .of the side rail was about five feet. There was no end lad­der on the S. F. R. D. car and no grab-irons on the end of that car eicept down near the bottom of the car, which was used by the brakemen in coupling and uncoupling cars. There were no end ladders or grab-irons on the tank car at all except on the sill below the floor. There was nothing on the end of the tank car for the brakemen to 'hold to while making the passage except the end of the side rail. It was necessary for a brakeman, in passing from the side ladder on the S. F. R. D. car to the tank car, while the train was in motion, to release his hold on the former before he was able to secure a hand-hold on

the railing on the tank car. It was shown that the train would have to go a quar­ter or a half mile after starting before it could get under good headway.

312 KANSAS CITY SO. RI% CO. V. LESLIE. [112 The appellant excepted to the rulings of the court in-admitting and excluding testimony. The appellant presented ninety-seven prayers for instructions. Of these the court refused all but seven. The court granted ten prayers for instructions on behalf of appellee, and gave eight instructions of its own mo-tion. The appellant excepted to the rulings of the court in refusing its prayers for instructions, and also ex­cepted to the rulings of the court in granting the prayers of appellee for instructions, and to the giving of the in­structions by the court of its own motion. The jury returned a verdict in favor of the appellee for $25,000. The court caused a remittitur to be entered in the sum of $7,000, and overruled appellant's motion for a new trial, and entered judgment in favor of the appellee for the sum of $18,000, from which this appeal has been duly prosecuted. Other facts stated in the opinion.

Read & McDonough, for appellant. 1. The court erred in denying the petition for re­moval to the United States court. We insist, notwith­standing the opinion of the court in the Cook case, 100 Ark: 467, and the Conarty case, 106 Ark. 421, 155 S. W. (Ark.) 93, that the act of Congress of 1908, as amended by the act of April 5, 1910, did not intend to destroy the right of removal where the diversity of citizenship exists. The claim of a right of removal raises a Federal question. 33 Sup. C. R. 974 ; Id. 1003; 229 U. S. 123. 2. The motion to strike should have been sustained. 3. The court erred in overruling the motion to make the complaint more definite and certain. 66 Ark. 278; 102 Ark. 187; 98 Ark. 481; 89 Ark. 136; 94 Ark. 524; 93 Ark. 392. 4. The court having refused to have stricken from the complaint its many unnecessary allegations, and to require the same to be made more definite and certain should have sustained the demurrer. 89 Ark. 136, and cases cited.

ARK.] KANSAS CIT -S SO. Ry . CO. v. LESLIE. 313 5. The motion for continuance to enable appellant to prepare to meet the new issues raised within less than ten days before the commencement of the term by the amendment to the complaint, should have been sustained. 78 Ark. 536; 71 Ark. 197; 67 Ark. 142; 21 Ark. 460; 85 Ark. 334; 95 Ark. 291 ; 99 Ark. 394; 35 -Ark. 247. 6. It was reversible error to admit testimony show- . ing that there had been trouble with the air in two cars which had been set out at Rich Mountain and Howard. 67 Ark. 112; 68 Ark. 225; 66 Ark. 494; 76 Ark. 302; 58 Ark. 125; Id. 454; 48 Ark. 460; 3 Elliott on Evidence, § 2506; 1 Id., § 185, and cases cited; 132 Pac. 112; 86 Atl.. 16 ; 160 Ill. App. 458; 131 N. W. 165; 92 Pac. 922; 100 S. W. 675; 102 Me. 39; 98 N. W. 569; 115 Mass. 239; 60 Mo. 227. 7. Testimony of witnesses tending to show that rail­roads in the United States use end ladders on fifty to seventy-five 'per cent of refrigerator cars or box cars, was inadmissible. The evidence of these witnesses to the effect that it . would be easier for a brakeman to pass from the refrigerator car to the tank car if there were hand-holds on the former car was inadmissible because, (1) they did not qualify as exp,erts. 66 Ark. 494; 65 Ark. 98 ; 1 Elliott on Evidence, § § 672, 674, 675 and 683 ; 2 Id., § § 1041, 1042, 1078 and 1095; 3 Id., § 2509. Facts rather than opinions must be given. 166 Ill. App. 306. (2) It is admissible because it does not tend to show negligence. Under the interstate commerce act, and the rulings of the Interstate Commerce Commission, car­riers are not required to change the hand-holds until 1916. 1 Fed. Stat. Annotated, Supp. 1912, pp. 335, 336; 6 Id. 752-756; 10 Id. 375; 188 Fed. 516; 130 N. Y. S. 917 ; 80 Atl. 779 ; 54 Ark. 389 ; 132 N. W. 513; 139 S. W. 172 ; 6 Thompson on Neg., § 7777; 4 Id., § 4770 ; 152 Pa. St. 314; 23 Ohio C. C. 207. The admissibility of this testimony is a Federal question, and under the act of Congress it is wholly in-admissible, because it takes away from the Interstate Commerce Commission the power to regulate the hand-

314 KANSAS CITY SO. RV. CO . V. LESLIE. [112 holds, and leaves the same to the eviden • ce of witnesses and to the shifting verdicts of juries. Such is not the intention of the act of Congress. 33 S. C. Rep.-858; 222 U. S. 222. 8. It was error to exclude testimony tending to show that under the rules of the Interstate Commerce Commission appellant could not refuse to accept the cars in controversy for shipment, and that, under said rules, the cars were properly equipped. The decisions of the Interstate Commerce Commission are law until reversed •or suspended. 200 Fed. 652. 9. The court erred in refusing to direct a verdict for appellant. It is _well established that no presumption of negligence arises from the occurrence of the injury. It is also well established that the happening of an acci­dent and the, existence of negligence, or of a negligent condition of affairs, is not sufficient to authorize a verdict for a plaintiff, but there must be a causal relation be­tween the injury and the alleged negligence. There is no negligence shown in this case. 181 Fed. 91 ; 190 Fed. 717; 107 Ark. 476; 179 U. S. 658; 90 Fed. 717 ; 139 Fed. 737; 145 Fed. 327 ; 159 S. W. (Ark.) 214; 33 S. C. Rep. 858. • 10. The court's instruction numbered 10, is erro­neous because it does not state the measure of damages under the Federal law ; which superseded the State law on the question, and governs the measure of damages. 226 U. S. 570 ; 33 S. C. Rep. 192. 11. It was error to exclude testimony as to the ad­mission of Leslie Old to the effect that he attempted to catch the train and slipped. A motion to exclude testi­

mony should be overruled where the testimony is admis­sible for any purpose ; and it is error to exclude the en­tire evidence of a witness when that evidence is admis­sible as to a part of the case. 107 Ark. 494; 87 Ark. 243 ; Id. 331 ; 49 S. W . 859; 38 Cyc. 1348 and cases cited; 229 U. S. 265; 33 S. C. Rep. 703 ; Id. 191 ; Id. 426.

ARK.] KANSAS CITY SO. RY. CO . V. LESLIE. 315 12. The verdict was excessive. The damages un­der the second employer's liability act is limited to the pecuniary loss sustained. 197 Fed. 715; 83 Atl. 788. The Measure of damages is the present worth of a sum which, paitl in annual installments for the term of decedent's life would give the beneficiary the annual amount of decedent's contributions. 83 Atl. (N. J.) 1006; 142 N. W. 67. Before there can be any recovery there must be evi-.dence that deceased contributed to the support, and how