Appendix — Missouri, K. & TR Co. v. West
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APPENDIX.
Petition for Writ of Error.
In the Supreme Court of the State of Oklahoma.
Missouri, Kansas & Texas Railway
Company, National Surety Com-
pany and American Surety Com-
pany of New York,
Plaintiffs in Error, / No. 1928.
vs.
Tvolue B. West,
Defendant in Error.
Come now the above-named Missouri, Kansas &
Texas Railway Company, National Surety Company
and American Surety Company of New York, plaint-
iffs in error, and say: That on the 9th day of April,
1910, a judgment was rendered in the District Court
within and for the Third Judicial District, Muskogee
County, State of Oklahoma, against the plaintiff in
error, Missouri, Kansas & Texas Railway Company,
for fifteen thousand ($15,000.00) dollars, in favor of
the defendant in error, Ivolue B. West; that pursuant
to the civil statutes of the State of Oklahoma said
cause was appealed to the Supreme Court of the State
of Oklahoma, where, on the 20th day of June, 1912,
this Court handed down its opinion affirming the judg-
ment of the trial court; that thereafter, pursuant to the
civil statutes of the State of Oklahoma, and on the
%Gth day of June, 1912, a petition for rehearing was
filed, presented, considered, and on the 4th day of Feb-
ruary, 1913, granted by this Court, and thereafter, and
on the 6th day of Angust, 1913, this Court handed
down its opinion on rehearing affirming the judgment
of the trial court, which judgment thereupon became
final; that the Supreme Court of the State of Okla-
homa is the highest court in said State in which a de-
oe RE
cision in this action could be had; that these plaintiffs
in error, the said Missouri, Kansas & Texas Railway
Company, National Surety Company and American
Surety Company of New York, were and are aggrieved
in that in said judgment and proceedings had prior
thereto in this case, certain errors were committed to
their prejudice; that this is an action brought by the
defendant in error, Ivolue B. West, as the widow of
William B. West, deceased, for damages for his death
alleged to have been caused through the negligence of
the plaintiff in error, Missouri, Kansas & Texas Rail-
wav Company, and its servants; that this plaintiff in
error, Missouri, Kansas & Texas Railway Company,
is, and was, at the time of the injuries resulting in the
death of the said William B. West, a common earrier
by railroad, engaged in interstate commerce, and the
deceased, William B. West, was, at the time of the in-
juries resulting in his death, emploved by the plaintiff
in error Railway Company in such commerce, being
employed as baggageman, and was, at the time, han-
dling interstate baggage upon a train of the plaintiff
in error, Railway Company, which was at the time en-
gaged in moving interstate traffic; and plaintiffs in er-
ror, therefore, contended, and still eontend, in said
action that defendant in error had no right to maintain
this suit, but that same could only be maintained by
the personal representative of the deceased, as con-
templated by the Act of Congress approved April 22,
1908, entitled ‘*An Act Relating to the Liability of
Common Carriers by Railroad to Their Emploves in
Certain Cases,’’ and that by this action there therefore
was drawn in question the construction of said statute,
and the decision of this Court is against the right
claimed by these plaintiffs in error to insist that said
action should have been so brought, and is, as it be-
be ake alin se
— 115 —
lieves, contrary to the said statute of the United States
relating to actions for the death of persons while in the
employ of common carriers by railroad and engaged
in commerce between the several States, as contem-
plated by said Act; that in said action rights, privi-
leges and immunities were claimed by your petitioners
under the Constitution .and Statutes of the United
States, and under authority exercised under the United
States, and the decision of the said Supreme Court of
the State of Oklahoma was against the rights, privi-
leges and immunities especially set up and claimed un-
der said Constitution, statutes and authority; all of
which will more fully appear in detail from the assign-
ment of errors filed herein.
Wherefore, said plaintiffs in error pray that a writ
of error may issue to the Supreme Court of the State
of Oklahoma for the correction of the errors com-
plained of, and that a duly authenticated transcript of
the record, proceedings and papers herein may be sent
to the United States Supreme Court.
JosepH M. Bryson,
Crirrorp L. Jackson,
Winniam R. ALLEN,
Mavrice D. Green,
Attorneys for Plaintiffs in Error.
Allowed by:
Samcen W. ITaves,
Chief Justice of the Supreme Court
of the State of Oklahoma,
Attest:
W.L. L. Camppecn,
Clerk,
By Jesse Parpor,
(SEAL) Deputy.
Endorsed:
REBELLION RE ELE IN MNES ERE Ea
—116—
No. 1928. In the Supreme Court of the State of Okla-
homa. Missouri, Kansas & Texas Railway Company,
Plaintiff in Error, v. Ivolue B. West, Defendant in Er-
ror. Petition for Writ of Error. Filed Aug. 11, 1913.
W.H. L. Campbell, Clerk. (Ree., pp. 6-9.)
ORDER ALLOWING WRIT OF ERROR.
In the Supreme Court of the State of Oklahoma.
Missouri, Kansas & Texas Railway
Company, National Surety Com-
pany and American Surety Com-
pany of New York,
Plaintiffs in Error, } No. 1928.
vs.
Tvolue B. West,
Defendant in Error.
Now, on this 11th day of August, 1913, come the
Missouri, Kansas & Texas Railway Company, National
Surety Company and American Surety Company of
New York, plaintiffs in error, and file and present to
this Court their petition praying for the allowance of
a writ of error intended to be urged by them; and
praying further that a duly authenticated transcript of
the record, proceedings and papers, upon which the
judgment herein was tendered, may be sent to the Su-
preme Court of the United States; and that such other
and further proceedings may be had in the premises
as may be just and proper; and upon consideration of
the said petition, this Court, desiring to give petition-
ers an opportunity to test in the Supreme Court of the
United States the questions therein presented, it is or-
dered by this Court that writ of error be allowed as
prayed; provided, however, that the said Missouri,
Kansas & Texas Railway Company, National Surety
OL LE GRRL LNT CLAP | TI en Ito pe EE
—117 —
Company and American Surety Company of New
York, plaintiffs in error, give bond, according to law, in
the sum of thirty thousand ($30,000.00) dollars, which
said bond shall operate as a supersedeas bond.
In testimony whereof, witness my hand this 11th day
of August, 1913.
Samvue. W. Hayes,
(SEAL) Chief Justice of the Supreme Court of
the State of Oklahoma.
Attest :
W.H.L. Camprens, Clerk.
By Jesse Parnor, Deputy.
Endorsed: In the Supreme Court of the State of
Oklahoma. No. 1928. Missouri, Kansas & Texas Rail-
way Company et al., Plaintiff in Error, v. Ivolue B.
West, Defendant in Error. Order allowing writ of
error. Filed Aug. 11,1913. W.H.L. Campbell, Clerk.
(Ree., p. 27.)
WRIT OF ERROR.
United States of America—ss:
The President of the United States to the Honorable,
the Justices of the Supreme Court of the State of
Oklahoma—GRreet1yc:
Because in the record and proceedings as also in the
rendition of the judgment of a plea which is in the said
Supreme Court of the State of Oklahoma before you,
or some of you, being the highest court of law or
equity of said State in which a decision could be had
in the said suit between Missouri, Kansas & Texas
Railway Company, as plaintiff in error, and Ivolue B.
West, as defendant in error, wherein was drawn in
question the validity of a treaty or statute of, or an
_ —_— Ai eee Rat es Lhe kan OIE eet eR» ha
— 118 —
authority exercised under, the United States, and the
decision was against their validity; or wherein was
drawn in question the validity of a statute of, or an
authority exercised under said State, on the ground of
their being repugnant to the Constitution, treaties or
laws of the United States, and the decision was in
favor of such their validity; or wherein was drawn in
question the construction of a clause of the Constitu-
tion, or of a treaty, or statute of, or commission held
under the United States, and the decision was against
the title, right, privilege or exemption specially set up
or claimed under such clause of the said Constitution,
treaty, statute, or commission, a manifest error hath
happened, to the great damage of the said Missouri,
Kansas & Texas Railway Company, National Surety
Company and American Surety Company of New York,
plaintiffs in error, as by their complaint appears:
We being willing that error, if any hath been, should
be duly corrected, and full and speedy justice done to
the parties aforesaid in this behalf, do command you,
if judgment be therein given, that then under vour
seal, distinetly and openly, vou send the reeord -and
proceedings aforesaid, with all things concerning the
same, to the Supreme Court of the United States, to-
gether with this writ, so that vou have the same in
the said Supreme Court at Washington within thirty
(30) days from the date hereof, that the reeord and
proceedings aforesaid heing inspected, the said Sn-
preme Court may cause further to be done therein to
correct that error, what of right, and according to the
laws and customs of the United States, should be done.
Witness the Honorable Edward D. White, Chief Jus-
tice of the Supreme Court of the United States, this
eleventh day of August, in the vear of our Lord One
Thousand Nine Hundred Thirteen.
sg oe hc es a ie nea eee ————
— 119 —
Done in the City and County of Oklahoma, State of
Oklahoma, with the seal of the District Court of the
United States for the Western District of the State of
Oklahoma attached.
Arno.tp C. Downer,
(SEA) Clerk of the District Court of the
United States for the Western Dis-
trict of the State of Oklahoma.
Deputy Clerk.
Allowed by:
Samuen W. Hayes,
Chief Justice of the Supreme Court
of Oklahoma.
T hereby certify that a copy of the within writ of
error was, on the 11th day of August, 1913, lodged in
the clerk’s office of the said Supreme Court of the State
of Oklahoma by the plaintiffs in error for the defend-
ant in error.
W. H. L. Camprerr,
(SEAL) Clerk of the Supreme Court of the
State of Oklahoma.
By Jesse Parnor, Deputy.
Endorsed: No. ——. In the Supreme Court of the
United States. Missouri, Kansas & Texas Railway
Company ef al., Plaintiffs in Error, v. Ivolue B. West,
Defendant in Error. Writ of Error. Filed Aug. 11,
13. W. 1. Campbell, Clerk. (Ree., pp. 28-30.)
— 120 —
ASSIGNMENTS OF ERROR. }
In the Supreme Court of the United States.
Missouri, Kansas & Texas Railway
Company, National Surety Com-
pany and American Surety Com-
pany of New York,
Plaintiffs in Error, No. ——.
vs.
Ivolue B. West,
Defendant in Error. /
Come now the Missouri, Kansas & Texas Railway
Company, National Surety Company and American
Surety Company of New York, plaintiffs in error in
- the above-entitled cause, and aver and show that in
the foregoing record and proceedings in said cause
there is manifest error in the action and rulings of the
District Court, within and for the Third Judicial Dis-
trict, Muskogee County, State of Oklahoma, as well as
in the action, rulings and opinion of the Supreme
Court of the State of Oklahoma, in this, to-wit:
i
The trial court erred in overruling the objection of
the plaintiff in error, Missouri, Kansas & Texas Rail-
way Company, to the introduction of any evidence in
the case, and the Supreme Court of the State of Okla-
homa erred in not correcting this error of the trial
court.
II.
The trial court erred in refusing to admit in evidence
the application for a situation of William B. West with
the American Express Company, which application
contained the accident release executed by the said
—_
PSS EY ERT = aS ae a — |
—121—
William B. West, the benefits of which inured to the
plaintiff in error, Missouri, Kansas & Texas Railway
Company. Said application for situation and accident
release executed by the said William B. West being
marked ‘‘Defendant’s Exhibit A’’, and the Supreme
Court of the State of Oklahoma erred in not correcting
this error of the trial court.
Il.
The trial court erred in refusing to admit in evidence
the application for a situation of William B. West with
the American Express Company, which application
contained the accident release executed by the said
William B. West, the benefits of which inured to the
plaintiff in error, Missouri, Kansas & Texas Railway
Company. Said application for situation and accident
release being marked ‘‘Defendant’s Exhibit B’’, and
the Supreme Court of the State of Oklahoma erred in
not correcting this error of the trial court.
a¥.
The trial court erred in refusing to admit in evidence
the application for a situation of William B. West,
with the American Express Company, which applica-
tion contained the accident release executed by the said
William B. West, the benefits of which inured to the
plaintiff in error, Missouri, Kansas & Texas Railway
Company. Said application for situation and accident
release being marked ‘‘Defendant’s Exhibit C’’, and
the Supreme Court of the State of Oklahoma erred in
not correcting this error of the trial court.
— 122 —
V.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
‘*(1) The Court instructs the jury to find the
issues in favor of the defendant.’’
And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
VI.
The trial court erred in instructing the jury as fol-
lows, to-wit:
“*(1) You are instructed that this action is
brought by the plaintiff as the widow of William
B. West, for the benefit of herself as such widow
and of the minor children of herself and of said
William B. West, deceased, for the alleged negli-
gent killing of her hushand while he was running
upon one of the defendant’s trains as an express
messenger in the employ of the American Express
Company.
‘‘Plaintiff alleges that at and prior to the time
of the death of said William B. West he was em-
ploved by the American Express Company as a
messenger, upon the express cars operated by the
defendant company over its line of railroad he-
tween Parsons. Kansas, through the State of Okla-
homa to points bevond in the State of Texas; that
in addition to his duties as express messenger said
West was also engaged in handling passenger hag-
gage upon the exnress ears of the defendant ecom-
pany. That on May 15, 1908, at about 12 o’elock
noon of said dav. said William B. West, in the
course of his employment, was riding in one of the
express cars of the defendant company, then be-
— 123 —
ing operated by defendant over its railroad in a
southerly direction, through the State of Okla-
homa, upon its train known as the ‘Katy Flyer’;
that when said train reached a short distance
south of the Arkansas River between the stations
of Verdark and Muskogee, said train, through
gross carelessness and negligence upon the part of
the railroad company, and while said train was
running at a high and dangerous rate of speed,
caused and allowed to collide in a head-end colli-
sion with a locomotive and freight train, also
owned, operated and maintained by said defend-
ant company and which freight train was also,
through the gross carelessness and negligence of
said defendant company, being run and operated
by said defendant company upon the same track,
in a northerly direction, at a high and dangerous
rate of speed; and that the said William B. West
was by said collision and by the gross carelessness
and negligence on the part of the defendant, and
without any fault or neglect upon his part, was
then and there caused to sustain and receive per-
sonal injuries which resulted in his immediate
death. Plaintiff brings swit in the sum of $50,-
000.00 for said killing.
‘‘The defendant has filed an answer, which, after
denying each and every material allegation in
vlaintiff’s petition, avers that if the said William
B. West was injured and killed at the time, place,
and in the manner hlleged, his death was not due
to anv negligence on the part of the defendant, or
any of its servants, agents, or emploves, but was
due solely to the negligence on the part of the said
William RB. West. Defendant further alleges in
its answer that the defendant, before entering into
the service of this company, had executed two cer-
tain contracts to the American Express Company
by which claim for damages for injuries were
— 124—
waived and released and in which contract he
agreed to release any railroad on which he might
be working at the time of any injury, and that the
plaintiff is now barred from maintaining this ac-
tion.’’
And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
VII.
The trial court erred in instructing the jury as fol-
lows, to-wit:
**(2) You are further instructed that the jury
are the sole judges of the weight of the testimony
and credibility of the witnesses, but the law of the
ease is that which is given to you by the Court in
these instructions, and you are to be governed by
no other law. In determining the: weight of the
testimony and credibility of the witnesses, you
have the right to look to each witness as he con-
ducted himself while upon the witness stand, to
his fairness or lack of fairness, to his intelligence
or his incapacity, as the same appeared to vou, to
his interest in the case, if any, and you have the
right to look to each and every surrounding cir-
cumstance that appears in the testimony. If there
is a conflict between the different parts of the tes-
timony of any witness, it is your duty to reconcile
the same, if this can be done, upon the theory that
each witness has spoken the truth; but if this can-
not be done then vou may disregard any part of
the testimony of any witness, or all of his testi-
mony, as you may see fit under the surrounding
facts and evidence in the case. If vou believe from
the evidence that any witness has willfully testi-
fied falsely to any fact material to the issue in this
case, then you are at liberty to disregard any part
or the whole of the testimony of such witness.’’
And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
VIL
The trial court erred in instructing the jury as fol-
lows, to-wit:
‘*(3) The burden is upon the plaintiff to sus-
tain her contention by a preponderance of the tes-
timony. By this is meant the greater weight of
the testimony, and not necessarily the number of
witnesses testifying upon the one side or the
other.’’
And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
1D.¢
The trial court erred in instructing the jury as fol-
lows, to-wit:
‘*(4) You are instructed that it is the duty of a
railway company to so conduct, maintain and run
its trains used in its business in such a manner as
to prevent injury to persons riding on said trains.’’
And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
X.
The trial court erred in instructing the jury as fol-
lows, to-wit:
‘*(4).) By ‘ordinary care’, as that term is used
in these instructions, is meant that degree of care
PMS OLR RA PERN WIRE ION DA NEEL A EL a TAS. es ec td ge fen a ea me naman
— 126 —
which a person of reasonable prudence and caution
would likely use and exercise under the same or
similar circumstances and conditions, and a failure
to use such care is negligence on the part of the
person or corporation guilty of such failure. That
is to say, negligence is the failure to do or perform
some act or the doing of some act which, from the
nature of the act and under the circumstances, may
result in injury or damage to the person or prop-
erty of others, and which a person of reasonable
prudence would or would not do, as the case may
be, under the same or similar circumstances, and
the rule here stated applies equally to persons and
corporations, the latter, that is, corporations, be-
ing chargeable with the negligence, if any, com-
mitted by their officers, agents and employes in the
discharge of their duty as such.’’
_ And the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
XT.
The trial court erred in instructing the jurv as fol-
lows, to-wit:
‘**(5) Now hearing in mind these instructions
and applying them carefully to the evidence be-
fore you, if vou believe and find from a prepon-
derance of the testimony that on or about the 15th
.day of May, 1908, in the County of Muskogee,
William B. West was personally injured by being
in a wreck caused by a collision hetween the ‘Katy
Flyer’ and one of defendant’s freight trains on
its line of railroad south of the Arkansas River
bridge, and vou further find that sueh injury was
the direct or proximate result of the negligence
of the defendant, its agents, officers or employes
to preperly conduct and run its trains .on said
ER REI cero ae ee mene
fs PRO PE ORE ELS eg eee Pee ey EEE REN ee Ree id
railroad track; that is, if von so find and believe
that the injuries sustained by William B. West
was the direct or proximate result of the failure
of defendant, its officers, agents or employes to
exercise that degree of diligence and care to pre-
vent injury to others as a person of ordinary eau-
tion and prudence would likely have used under
the same or similar circumstances, and you fur-
ther find that such injury caused the death of the
said William B. West, then it will be vour duty
to return a verdict in favor of the plaintiff herein
for such sum, as, in vour judgment, the evidence
shows her to be entitled to under other instrue-
tions given vou in this ecase.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
NTT.
The trial court erred in instructing the jury as fol-
lows, to-wit:
**(6) If vou find for the plaintiff in this case,
then in assessing the damages which she is en-
titled to recover, the jury should assess the same
with reference to the pecuniary loss sustained by
the widow and children of the deceased, and de-
termining this, you may consider the probable
earnings of the deceased, his age, experience, hab-
its, health and bodily qualifications, during what
prohably would have been his lifetime if he had
not been killed, so far as these matters have heen
shown by the evidence; but the amount vou allow
cannot exceed the sum mentioned in the plaintiff’s
petition.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
I LEONI LL LOR ITO IE LONI IAAL SRT ESET niin
_.
— 128 —
XIII.
The trial court erred in instructing the jury as fol-
lows, to-wit:
**(7) Nine of the jury concurring is sufficient
to return a verdict for plaintiff or defendant and
if the verdict is rendered by nine or more, but by
less than the whole number of jurors, then the
jurors who concur in the verdict must sign their
names thereto. If the verdict is concurred in by
the entire jury, then you will select some one of
your number foreman and have him sign the ver-
dict as such foreman and return it into court.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XIV.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
‘*(2) If vou find from the evidence in this ease
that the deceased, W. B. West, was not an em
plove of the defendant, then the defendant would
not be liable unless vou should further find that
the defendant was guilty of gross negligence and
that as a result of such negligence the deceased
was killed.”’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XV.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
_—
— 129 —
**(3) If you find from the evidence in this cause
that the said W. B. West was emploved by the de-
fendant as baggage master and was acting as such
at the time of his death you will find the issues in
favor of the defendant.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XVI.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas,
& Texas Railway Company, as follows, to-wit:
‘*(4) If you find from the evidence in this cause
that the deceased W. B. West was an employe of
the defendant, at the time he received the injuries
which caused his death, and that as such employe
he was engaged in interstate commerce, as here-
after explained, then the laws of the United States
would) govern the liability of the defendant
herein.”’
and the Supreme Court of the State of Oklalioma erred
in not correcting this error of the trial court.
XVIL.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
(5) If vou find from the evidence in this ac-
tion that the deceased W. B. West at the time he
received the injuries which caused his death was
not an employe of the defendant, and if you fur-
ther find that the deceased W. B. West entered
inte the contract introduced in evidence stipulat-
—
— 130 —
ing for a release of the defendant, then your ver-
dict should be for the defendant.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XVIII.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri; Kansas
& Texas Railway Company, as follows, to-wit:
‘*(6) If you find from the evidence that the
train upon which West was working at the time
of his death engaged in commerce between the
States and that he was an employe of the defend-
ant, the plaintiff is not entitled to recover.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XIX.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
**(7) If vou should find for the plaintiff vour
verdict should be for such amount as would com-
pensate the plaintiff for the financial loss sus-
tained and you are not to permit your sympathy
to influence vour verdict. The plaintiff is not
entitled to recover for loss of the society of de-
ceased nor for mental anguish—your verdict must
be based upon the financial loss in dollars anid
cents.”’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
— 131 —
XX.
The trial court erred in refusing to instruct the jury
as requested by the plaintiff in error, Missouri, Kansas
& Texas Railway Company, as follows, to-wit:
**(8) If vou find for the plaintiff your verdict
must not exeeed ten thousand dollars.’’
and the Supreme Court of the State of Oklahoma erred
in not correcting this error of the trial court.
XXII.
The trial court erred in overruling the objection of
the plaintiff in error, Missouri, Kansas & Texas Rail-
way Company, to the making and rendering of the
verdict rendered by the jury in this cause, and the
Supreme Court of Oklahoma erred in not correcting
this error of the trial court.
XXII.
The trial court erred in refusing to set aside the
verdict in this case and to award the plaintiff in error,
Missouri, Kansas & Texas Railway Company, a new
trial because the damages awarded by the jury were
excessive and appear to have been given under the
influence of passion and prejudice, and the Supreme
Court of the State of Oklahoma erred in not correct-
ing this error of the trial court.
XNITT.
The trial court erred in overruling the motion of
the plaintiff in error, Missouri, Kansas & Texas Rail-
way Company, for a new trial, and the Supreme Court
of the State of Oklahoma erred in not correcting this
error of the trial court.
— 132 —
XXIV.
The trial court erred in refusing to grant to the
plaintiff in error, Missouri, Kansas & Texas Railway
Company, a new trial, and the Supreme Court of the
State of Oklahoma erred in not correcting this error
of the trial court.
, XXV.
The trial court erred in refusing to render a judg-
ment against the defendant in error and in favor of the
plaintiffs in error, and the Supreme Court of the State
of Oklahoma erred in not correcting this error of the
trial court.
XXVI.
The trial court erred in rendering judgment in favor
of the defendant in error and against the plaintiffs in
error and the Supreme Court of the State of Oklahoma
erred in not correcting this error of the trial court.
XXVII.
The Supreme Court of the State of Oklahoma erred
in not reversing the judgment of the trial court within
and for the Third Judicial District, Muskogee County,
State of Oklahoma, because of each of the several er-
rors of the latter court as to its actions and rulings as
to each and every one of the several errors above spe-
ecified.
XXVIII.
The Supreme Court of the State of Oklahoma erred
in affirming the judgment of the trial court within and
for the Third Judicial District, Muskogee County,
State of Oklahoma, in this cause, and in not correcting
| aamemae sme
— 133 —
said errors and in not reversing said judgment of the
said trial court.
XXIX.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the de-
ceased, William B. West, was not an employe of the
plaintiff in error, Missouri, Kansas & Texas Railway
Company, at the time of the injury resulting in his
death.
XXX.
The Supreme Court of the State of Oklahoma erred
in holding that the deceased, William B. West, was
employed exclusively by the American Express Com-
pany at the time of the injury resulting in his death.
XXXII.
The Supreme Court of the State of Oklahoma erred
in holding that William B. West, deceased, was an em-
ploye of the Express Company only and not of the
Railway Company, the evidence being undisputed in
this case that the said William B. West, deceased, was
a joint employe of the plaintiff in error, Missouri, Kan-
sas & Texas Railway Company, and the American Ex-
press Company, and the parties to this cause in their
pleadings and both parties and the trial court through-
out the trial proceeding on the theory that West was
an employe of the plaintiff in error, Missouri, Kansas
& Texas Railway Company, at the time of the acci-
dent resulting in his death.
XXXII.
The Supreme Court of the State of Oklahoma erred
in holding in its opinion and judgment that under the
9
— |o+—
issues as framed in this case, the said deceased, Wil-
liam B. West, was an employe of the said American Fx-
press Company, and not of the plaintiff in error, Mis-
souri, Kansas & Texas Railway Company.
XXNIIT.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the peti-
tion of the defendant in error did not allege that the
deceased, William B. West, was an emplove of the
plaintiff in error, Missouri, Kansas & Texas Railway
Company.
XXXTV.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the answer
of the plaintiff in error, Missouri, Kansas & Texas
Railway Company, upon which the case was tried, did
not allege that the deceased, William B. West, was an
employe of the plaintiff in error, Missouri, Kansas &
Texas Railway Company.
XXXV.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgement in holding that the reply
of the defendant in error to the answer of the plaintiff
in error, Missouri, Kansas & Texas Raiiway Company,
upon which the case was tried, did not admit that the
deceased, William B. West, was an emplove of the
plaintiff in error, Missouri, Kansas & Texas Railway
Company.
XXXVI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the plead-
— 135 —
ings of the defendant in error did not allege that Wil-
liam B. West, deceased, was an employe of the plaintiff
in error, Missouri, Kansas & Texas Railway Company.
XXXVII.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the plead-
ings of the plaintiff in error, Missouri, Kansas & Texas
Railway Company, did not allege that William B.
West, deceased, was an employe of the plaintiff in er-
ror, Missouri, Kansas & Texas Railway Company.
XXXVIII.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the parties
to this case did not join an issue of fact as to whether
William B. West, deceased, was an employe of the
plaintiff in error, Missouri, Kansas & Texas Railway
Company.
XX XTX.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that there were
no averments in the pleadings in this case from which
an inference might reasonably be drawn that a con-
tract of employment was entered into between the de-
ceased and the plaintiff in error, Missouri, Kansas &
Texas Railway Company.
XI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the rule
‘that if, during the course of the trial, it develops
that the real case is not controlled by the State
statute but by a Federal statute and the case is
ey
Oh WRENN et FTAA NG PE INAH ONS ION TEN
a
— 136 —
commenced under the former, the case pleaded is
not proved and the case proved is not pleaded”’
is not applicable to this case.
XLI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the de-
ceased, William B. West, was a passenger upon the
train of the plaintiff in error, Missouri, Kansas & Texas
Railway Company, at the time of his injury, resulting
in his death.
XLII.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the act
of Congress of April 22nd, 1908, 35 U.S. Statutes-at-
Large, page 65, entitled, ‘‘An Act relating to liability
of common carriers by railroad to their employes in
certain cases’’ does not apply to and control the ques-
tion of the liability of the plaintiff in error, Missouri,
Kansas & Texas Railway Company, on account of the
injuries resulting in the death of the said William B.
West.
XLITITI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that sections
5945 and 5946 of the Compiled Laws of the State of Ok-
lahoma of 1909, Snyder, as modified by section 7, arti-
cle 23, of the Constitution of the State of Oklahoma,
govern this case.
a5
a
“
— 137 —
XLIV.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that section
2907 of the Compiled Laws of Oklahoma, 1909, Snyder,
applies to this case.
XLV.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that this action
could be properly brought or maintained under the
laws of the State of Oklahoma.
XLVI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that section 7,
article 23, of the Constitution of the State of Ok-
lahoma, defines the rights of the defendant in error as
to any matters involved in this case.
XLVI.
The Supreme Court of the State of Oklalioma erred
in its opinion and judgment in holding that section 8,
article 23, of the Constitution of the State of Ok-
lahoma, applies to any matters involved in this case.
XLIX.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the said
contracts offered in evidence, being the applications of
the deceased, William B. West, for situations with the
said American Express Company, which said applica-
tions contain the accident releases executed by said
William B. West, the benefits of which inured to the
plaintiff in error, Missouri, Kansas & Texas Railway
9)
ee:
Company, and marked ‘‘Defendant’s Exhibits A, B
and C,’’ respectively, and each of them, are void on
account of being in contravention of the laws of the
State of Kansas and of the Constitution of the State
of Oklahoma.
L.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that it was not
clear that the contracts offered in evidence, being the
plaintiff in error, Missouri, Kansas & Texas Railway
Company’s, Exhibits A, B and C, and each of them,
covered the employment in which the deceased, Wil-
liam B. West, was engaged at the time of his death
and that this would be a sufficient ground for refusing
to admit them in evidence.
LI.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the evi-
dence in this case as to the employment of William B.
West by the plaintiff in error, Missouri, Kansas &
Texas Railway Company was not sufficient to take the
ease to the jury on the question of such employment.
LIT.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment in holding that the amount
of damages awarded in this ease was not excessive.
— 139 —
LIT.
The Supreme Court of the State of Oklahoma erred
in its opinion and judgment wherein it stated that
“From a careful investigation of the entire rec-
ord, we are persuaded that if we should reverse
the judgment of the court below upon the ground
that the deceased suffered the injuries which re-
sulted in his death while he was employed by the
railway company, we would compel the widow to
abandon the tenable theory upon which she
brought the case and to accept one less advan-
tageous to her and her children and one which it
would be difficult, if not impossible, to establish.’
LIV.
The Supreme Court of the State of Oklahoma erred
in affirming the judgment of the trial court in this case
as it is shown from said opinion of said Supreme Court
of the State of Oklahoma that it asserted as a reason
for affirming said judgment of the trial court the fol-
lowing:
‘From a careful investigation of the entire rec-
ord, we are persuaded that if we should reverse
the jndement of the court below upon the ground
that the deceased suffered the injuries which re-
sulted in his death while he was employed by the
railway company, we would compel the widow to
abandon the tenable theory upon which she
brought the ease and to aecept one less advan-
tnaveons to her and her children and one which it
would he difficult, if not impossible, to establish.”’
LV.
The Snpreme Court of the State of Oklahoma erred
in the opinion and judgment in denving and in not
f
t
E
— 140 —
giving to the plaintiff in error, Missouri, Kansas &
Texas Railway Company, its rights under the Consti-
tution, statutes and laws of the United States with ref-
erence to interstate commerce, for the reason that the
plaintiff in error, Missouri, Kansas & Texas Railway
Company, is, and was at the time of the injuries re-
sulting in the death of the said William B. West, a
common carrier by railroad, engaged in interstate com-
meree, and the deceased, William B. West, was, at the
time of the injuries resulting in his death, emploved
by the plaintiff in error, Missouri, Kansas & Texas
Railway Company, in such commerce, being employed
as baggageman, and was at the time handling inter-
state baggage upon a train of the plaintiff in error,
Missouri, Kansas & Texas Railway Company, which
was engaged in moving interstate traffie.
LVI.
The Supreme Court of the State of Oklahoma erred
in denying and in not giving to this plaintiff in error,
Missouri, Kansas & Texas Railway Company, riglits
and immunities set up and claimed by said plaintiff in
error under and by virtue of the Act of Congress ap-
proved April 22nd, 1908, entitled ‘*An Act relating to
the liability of common carriers by railroad to their
employes in certain cases,’’? found at page 65 of Vol.
35, U.S. Statutes at Large, which rights and immuni-
ties so claimed, were as follows: This is an action
brought by the defendant in error, who is the widow of
the said William B. West, deceased, and brought by
her for herself and minor children, but not in a rep-
resentative capacity, and she had not been appointed
personal representative of the estate © the said Wil!
liam B. Wes., and the pleadings and admitted facts
— 141 —
show that the said William B. West met his death
while engaged as an employe of the plaintiff in error,
Missouri, Kansas & Texas Railway Company, in inter-
state commerce, the said West acting as baggageman
for said plaintiff in error, Missouri, Kansas & Texas
Railway Company, between the points of Parsons, in
the State of Kansas, through Oklahoma, and to Dallas,
in the State of Texas, this said plaintiff in error, Mis-
souri, Kansas & Texas Railway Company, being en-
gaged as common carrier by railroad in interstate com-
meree at the time of the accident resulting in the death
of the said William B. West, and under the provisions
of said Act of Congress, the defendant in error had no
right of action, and this aetion could not be main-
tained, but notwithstanding this Act of Congress, the
Supreme Court of the State of Oklahoma held she
could maintain the action.
Wherefore, for these and other manifest errors ap-
pearing in the record, the said Missouri, Kansas &
Texas Railway Company, National Surety Company
and American Surety Company of New York, plaintiffs
in error, pray that the said judgment of the said Su-
preme Court of the State of Oklahoma be reversed,
set aside, and held for naught, and that judgment be
rendered for the plaintiffs in error, granting to them
their rights under the statutes and laws of the United
States, and the said plaintiffs in error also pray judg-
ment for their costs.
Joserpu M. Bryson,
Crirrorp L.. JACKSON,
Winntiam R. ALLEN,
Mavrice 1D. Green,
Attorneys for Plaintiffs in Error.
(Ree. pp. 10-26.)
— 142 —
(Note.—Assignments or error numbered 1 to 26, in-
elusive, filed in this Court are the same as the assign-
ments of error made by the Railway Company on ap-
peal to the State Supreme Court and it is not deemed
necessary to include herein separately such assign-
ments. )
PETITION.
Plaintiff complains of defendant and alleges:
1. That defendant now is and during all the times
herein mentioned has been a railroad corporation, duly
created, organized, and existing under and by virtue
of the laws of the State of Kansas, and as such, during
all of said times, has been engaged in the railroad busi-
ness in the State of Kansas and Oklahoma, and else-
where as a common carrier of freight, express, and pas-
sengers for hire. _
2. That during all the times herein mentioned said
defendant corporation, as a part of its said railroad
business, owned and was engaged in operating a cer-
tain line of railroad, extending from St. Louis, Mis-
sonri, southerly to Parsons, Kansas, and thence from
Parsons, Kansas, southerly to the stations of Verdark
and Muskogee in the State of Oklahoma, and thence
southerly through the State of Oklahoma, to points in
the State of Texas, over which line of railroad said
defendant, during all the times herein mentioned was
actually engaged in carrying and transporting freight,
express and passengers for hire, by trains of cars
drawn by steam locomotives by it owned, operated and
maintained. That said line of railroad consisted of
what is known as a single track line and was and is
of the usual form of construction, and by said defend-
ant, owned and maintained.
— 143 —
3. That William B. West, deceased, hereinafter
named, left him surviving, as his only heirs-at-law, the
plaintiff herein, his widow, who is thirty-six (36) years
of age, and three minor children whose names and
ages are as follows, viz: Norma H. West, aged sixteen;
Glenford B. West, aged seven years, and Wilmetta M.
West, aged two vears, and also a posthumous child,
born June 29, 1908.
4. That this action is brought by the plaintiff as
widow of said William B. West, and for the benefit of
herself, as such widow, and of said minor children of
herself and of said William B. West, deceased.
That said William B. West, at the time of his death,
as hereinafter set out, was, and for many years prior
thereto, had been a resident of the County of Labette,
in the State of Kansas, and that plaintiff during all
the times herein mentioned has been and still is a resi-
* dent of said county, and no personal representative of
the estate of said William B. West, deceased, has been
appointed.
5. That at and prior to the time of the death of said
William B. West, deceased, he was employed by the
American Express Company, as express messenger
upon the express cars operated by said defendant com-
pany, over its said line of railroad operated between
said City of Parsons, Kansas, through the State of
Oklahoma, to points beyond in the State of Texas.
That in addition to his duties and emplovment as
express messenger, as aforesaid, said William B. West
also engaged in handling passenger baggage upon the
express cars of said defendant company.
6. That on May 15, 1908, at about twelve o’clock,
noon, of said day, said William B. West, in the course
of his emplovment as hereinbefore set out, was riding
ae PE
— 144—
in one of the express cars of said defendant company,
attached to one of the regular trains of said defendant
company, being then and there run and operated by
said defendant company, over said railroad line in a
southerly direction through the State of Oklahoma,
which train was one of the regular passenger trains
of said defendant, known as ‘‘Number Five,’’ and also
known as the ‘‘Katy Flyer’’, and that when said train
reached a point in said State of Oklahoma, a short dis-
tance southerly of the Arkansas River, between the
said stations of Verdark and Muskogee, in said State
of Oklahoma, said train upon which said Wilfiam B.
West was so riding in the performance of his duties as
aforesaid, was by said defendant railroad corporation,
through gross carelessness and negligence, upon ‘its
part, and while said train was running at a high and
dangerous rate of speed, caused and allowed to collide
in what is known as a head-end collision with a loco-
motive and freight train, also owned, maintained and
operated by said defendant company, and which
freight train was also then and there, through the gross
carelessness and negligence of said defendant com-
pany, being run and operated by said defendant com-
pany upon the same track, in a northerly direction, at
a high and dangerous rate of speed, and that said Wil-
liam B. West was, by said collision and by said gross
carelessness and negligence on the part of said defend-
ant railroad company, in causing and allowing said
trains to be so run and operated upon the same track
and to collide as aforesaid, and without any fault or
néglect, whatsoever, upon the part of said William B.
West; then and there caused to sustain and recetve
such .personal bodily injuries as resulted in his im-
mediate death.
— 145 —
9, That the expectancy of life of. said William B. — 3
West at the time of his death, according to the Carlisle
tables of mortality, was twenty-nine and sixty-four
one-hundredths years (29 64/100), and that at the time
of his death, as aforesaid, said William B. West was
but thirty-eight years of ageand in good health of
body and mind, and of strong physique and was weil
able to do great mental and manual labor, and to earn
at least the sum of eighty-three and thirty-three one-
hundredths dollars ($83 33/100) per month, at his busi-
ness and employment as express messenger and bag-
gageman as aforesaid, and that at said time was, in
fact, actually earning and receiving from his said em-
ployment the sum of eighty-three and thirty-three one-
hundredths dollars ($83 33/100) per month, and that
he would (except for his death so resulting from the
neglect of said defendant) have continued to earn and
- receive a much larger sum per month, for at least
the period of twenty-nine years (29) thereafter, and
in the aggregate, at least the sum of thirty thousand
dollars ($30,000), and that plaintiff herein, and her
said children, would have received for their own bene-
fit, out of said moneys that said William B. West would
have earned (except for his death as aforesaid) an
amount in excess of twenty-five thousand dollars ($25,-
000) and that plaintiff and her said children have been
damaged at the hands of defendant in the loss of the
care, aid, advice and society of said William B. West as
husband of plaintiff and father of said children in the
further sum of at least twenty-five thousand ($25,000)
dollars.
Wherefore, plaintiff demands judgment against said
defendant in the sum of fifty thousand dollars ($50,-
000) and for the costs and disbursements of this ac-
tion’’ (Ree., pp. 43-47).
a
DEMURRER. F
(Caption and signatures omitted.)
Comes now the defendant and demurs to the plaint-
iff’s petition filed herein and for grounds of demurrer
states: >
I.
That the plaintiff has no legal capacity to sue for the
minor children named in paragraph three of said peti-
tion.
2
IT.
That there is a defect of parties plaintiff in this:
That the suit is brought in the name of Ivolue B. West
as plaintiff while in paragraph four of said petition it
is stated that the suit was brought by the plaintiff for
the benefit of herself and the minor children named in
paragraph three of said petition.
IIT.
That the petition does not state facts sufficient to
constitute a cause of action on behalf of plaintiff (Rec.,
p. 49).
ORDER OVERRULING DEMURRER.
Thereafter and on the 29th day of October, 1908, the
demurrer of the defendant to the plaintiff’s petition
comes on for hearing before the Court, and after argu-
ment of counsel, the Court being fully advised, over-
rules said demurrer and grants the defendant twenty
days in which to answer, to which action of the Court
‘in overruling said demurrer the defendant then and
there excepts (Rec., p. 50).
— 147 —
vit ANSWER.
(Caption and signatures omitted.)
Comes now the defendant and for answer to plaint-
iff’s petition denies each and every material allegation
thereof.
Wherefore, having fully answered, defendant prays
that it be adjudged to go hence without day with its
costs in this behalf laid out and expended (Rec., p. 52).
FIRST AMENDED ANSWER.
(Caption and signatures omitted.)
Comes now the defendant and, by leave of court first
had and obtained, for its first amended answer to the
petition filed herein denies each and every material al-
legation thereof.
Further answering defendant states that even if the
said William B. West, deceased, was injured and killed
at the time, place, and in the manner as alleged in the
plaintiff’s petition, but no part of which is admitted,
but all of which is denied; that his said injuries and
death were not due to any negligence on the part of
this defendant or any of its agents, servants, or em-
ployes, but were due solely to negligence on the part of
the said William B. West.
Further answering, defendant states that it is now,
and was at all times mentioned in plaintiff’s petition, a
common carrier by railroad engaged in commerce be-
tween the several states, and that the passenger train
described by plaintiff in said petition as the ‘‘Katy
Flyer’’ was at all times mentioned therein, an inter-
state train, starting from St. Louis, in the State of
Missouri, and passing into and through the State of
Kansas, and Oklahoma, and thence into the State of
—148 —
Texas, and at all times herein mentioned was en-
gaged in the movement of interstate commerce, and
defendant further states that the said freight train de-
scribed in plaintiff’s said petition was, on the said 15th
. day of May, 1908, a train starting from Muskogee, in
the State of Oklahoma, and proceeding on its way over
the defendant’s line of railway to Parsons, in the State
of Kansas, and was on said date, and at all times men-
tioned in plaintiff’s petition, engaged in moving inter-
state commerce.
Wherefore, having fully answered, defendant prays
that it be adjudged to go hence without day, with its
costs in this behalf laid out, and expended (Rec., p. 55).
REPLY TO FIRST AMENDED ANSWER.
(Caption and signatures omitted.)
Comes now the plaintiff herein and for reply to de-
fendant’s first amended answer filed herein denies each
and every allegation thereof (Rec., p. 57).
SECOND AMENDED ANSWER.
(Caption and signatures omitted.)
Comes now the defendant and by leave of court first
had and obtained, for its second amended answer to
the petition filed herein denies each and every material
allegation thereof.
Further answering, defendant states that even if the
said William B. West, deceased, was injured and killed
at the time, place and in the manner as alleged in the
plaintiff’s petition, but no part of which is admitted,
bat all of which is denied, that his said injuries and
death were not due to any negligence on the part of
this defendant or any of its agents, servants, or em-
wn
ployes, but was due solely to negligence on the part of .
the said William B. West.
Further answering defendant states that it is now
and was at all times mentioned in plaintiff’s petition,
a common carrier by railroad engaged in commerce be-
tween the several states, and that the passenger train
described by plaintiff in said petition as the ‘‘Katy
Flyer’? was at all times mentioned therein, an inter-
state train, starting from St. Louis, in the State of
Missouri, and passing into and through the State of
Kansas and Oklahoma, and thence into the State of
Texas, and at all times therein mentioned was en-
gaged in the movement of interstate commerce, and
defendant further state that the said freight train de-
scribed in plaintiff’s said petition, was on the said 15th
day of May, 1908, a train starting from Muskogee, in
the State of Oklahoma, and proceeding on its way over
the defendant’s line of railway to Parsons, in the State
of Kansas, and was on said date, and at at all times
mention in plaintiff’s petition, engaged in moving in-
terstate commerce.
Further answering defendant states that prior to
the time of the alleged injury in question, the said
William B. West had made application to the Ameri-
can Express Company in writing for employment by
it as driver of one of its wagons at Parsons, Kansas,
and was so engaged pursuant to the terms of a written
contract, said contract being dated January 9, 1893,
a copy of which contract is hereto attached, marked
Exhibit ‘‘A’’ and made a part of this answer.
Further answering defendant states that prior to
the time of the alleged injury in question, the de-
ceased, William B. West, had made application to
the said American Express Company in writing for
.— eEeEEEeEEeEeEeEeEeEeEeEeEeEeEeEeEOe
2
— 150 —
employment by it as an express messenger, and that
in pursuance of said application he was prior to and
at the time of the alleged injury in question employed
by the said American Express Company, under a con-
tract in writing between him and said company, which
contract was dated October 15, 1896, a copy of which is
hereto attached, marked Exhibit ‘‘B’’, and made a
part hereof, and which said contract includes as part
of its provisions the contract hereinabove referred to
and marked Exhibit ‘‘A’’.
Further answering, defendant states that by the
terms of said contract hereinabove identified as Fix-
hibit ‘‘B’’, it was provided that in the considera-
tion of the premises and of the employment of de-
ceased, he did assume all risk of accident and injury
which he should meet with or sustain in the course of
his employment, whether occasioned or resulting by or
from the gross or other negligence of any corporation
or person engaged in any manner in operating any rail-
road or vessel, or vehicle, or of any employe of any
such corporation or person, or otherwise, and whether
resulting in his death or otherwise.
Further answering, defendant states that by the
terms of said contract it was provided that in case of
any injury suffered by deceased, he would at once,
without demand, and at his own expense, execute and
deliver to the corporation or person owning or operat-
ing the railroad, stage or steamboat line upon which
he should be so injured, a good and sufficient release
under his hand and sé@al of all claims, demands and
causes of action arising out of such injury or connected
with or resulting therefrom.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
— 151 —
ceased ratified all agreements theretofore made by
said Express Company with any corporation or person
operating a railroad, stage and steamboat line in which
such express company had agreed in substance, that
its employes should have no cause of action for injuries
sustained in the course of their employment upon the
line of such contracting party, and deceased further
agreed to be bound by each and every part of such
agreement, in so far as to provisions thereof relative
to injury sustained by employes of the company were
concerned as fully as if he were a party thereto.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
ceased did thereby authorize and empower said ex-
press company at any time while he should remain in
its service to contract for him, and in his behalf in
its own name or in his name, with any corporations or
persons operating a railroad, stage or steamboat line,
for his transportation as a messenger or employe, free
of charge, upon the condition and consideration that
neither he nor his personal representatives, nor. any
person claiming under him would make any claim for
compensation because of any injury sustained by him,
whether resulting on (in) the gross negligence of such
corporations or persons or of any employes of such
corporations or persons, Or otherwise, and the contract
so made should be as binding and obligatory upon him,
as if signed and delivered by him.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
ceased did agree that the provisions of said contract
should be held to inure to the benefit of any and every
corporation and to all persons upon whose railroad,
stage or steamboat lines the American Express Com-
— 152 —
pany shall forward merchandise, as fully and com-
pletely as if made directly with such corporations or
persons.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
ceased did agree that in consideration of his employ-
ment by said express company that he would assure
all risks or accident or injury which he would meet or
sustain in the course of such employment, whether oc-
casioned by negligence of said company or any of its
members, officers, agents or employes, or otherwise.
Further answering, defendant states that at the time
of the alleged injury in question the deceased was in
the express car, being transported by this defendant
over its said line of railway, and was in said car in
pursuance of said contract hereinabove referred to as
Exhibit ‘‘B’’, and states that plaintiff is, therefore,
now barred from maintaining this action.
Wherefore, having fully answered, defendant prays
that it be adjudged and go hence without day, with
its costs in this behalf laid out and expended (Rec.,
pp. 59-62).
(Note.—Exhibits ‘‘A’’ and ‘‘B’’ made a part of the
second amended answer are omitted, as they, together
with other exhibits, are included in the third amended
answer and such portion of these exhibits as is con-
sidered necessary for the consideration of the Court
will be copied together with the third amended an-
swer. ),
REPLY TO SECOND AMENDED ANSWEE.
(Caption and signatures omitted.)
The plaintiff for reply to the second amended an-
swer of the defendant in the above-entitled action, de-
— 153 —
nies the said answer and each and every allegation
therein contained, save as in her complaint herein-
before stated, or as hereinafter admitted, stated or
qualified:
Plaintiff denies any knowledge or information suf-
ficient to form a belief as to the execution of Exhibits
‘“A” and ‘‘B’’, attached to said answer and made a
part thereof.
Further answering, defendant alleges that the said
pretended contract, evidenced by Exhibits ‘*A’’ and
‘“B’’, purports to be, and if any such instruments were
ever signed by William B. West, mentioned in the
pleadings, they were so signed and said contract, if it
was attempted to he made at all, was attempted to be
made in the State of Kansas during the years 1893
and 1896.
That at that time, by virtue of the laws and statutes
duly existing in the said State of Kansas, all railroad
companies operating within said State of Kansas were
liable for all damages done to persons or property if
done in consequence of any negligence upon the part
of said railroe ompanies and by the laws and statutes
of said State, all contracts by which it was attempted
to release any railroad company from such damages
was void as being in violation of said laws and statutes
and of the public policy of the State of Kansas, and
that said laws and statutes ever since have and still
do exist and are in force in said State of Kansas, and
that said contract was wholly without consideration.
That by reason of the existence of said laws and
statutes and the want of consideration, aforesaid, the
said pretended contract or the evidence thereof pur-
porting to exist in Exhibits ‘A’ and “B”’ attached to
soi OB ec
the answer of the defendant were and are wholly void
and of no effect.
Wherefore plaintiff demands judgment as prayed in
_her complaint (Ree., pp. 89-90).
THIRD AMENDED ANSWER.
Comes now the defendant and by leave of Court first
had and obtained, for its third amended answer to the
petition filed herein denies each and every material
allegation thereof.
Further answering, defendant states that even if the
said William B. West, deceased, was injured and killed
at the time, place and im the manner as alleged in the
plaintiff’s petition, but no part of which is admitted,
but all of which is denied; that his said injuries and
death were not due to any negligence on the part of this
defendant or any of its agents, servants, or employes,
but was due solely to negligence on the part of the said
William B. West.
Further answering, defendant states that it is now
and was at all times mentioned in plaintiff’s petition.
acommon carrier by railroad engaged in commetce be-
tweer. the several states, and that the passenger train
described by plaintiff in said petition as the ‘‘Katy
Flyer’’ was at all times mentioned therein an interstate
train, starting from St. Louis, in the State of Missouri,
and passing into and through the State of Kansas and
Oklahoma, and thence into the State of Texas, and at
all times therein mentioned was engaged in the move-
ment of interstate commerce, and defendant further
states that the said freight train described in plaintiff’s
said petition was on the said 15th day of May, 1908,
a train starting from Muskogee, in the State of Okla-
homa, and proceeding on its way over the defendant’s
am 55
line of railway to Parsons, in the State of Kansas, and
was on said date, and at all times mentioned in plaint-
iff’s petition, engaged in moving interstate commerce.
Further answering, defendant states that prior to the
time of the alleged injury in question, the said William
B. West had made application to the American Express
Company in writing for employment by it as driver of
one of its wagons at Parsons, Kansas, and was so en-
gaged pursuant to the terms of a written contract, said
contract being dated January 9, 1893, a copy of which
contract is hereto attached, marked Exhibit ‘‘A’’ and
made a part of this answer.
Further answering, defendant states that prior to the
time of the alleged injury in question, the deceased,
William B. West, had made application to the said
American Express Company in writing for employ-
ment by it as an express messenger, and that in pursu-
ance of said application he was prior to and at the time
of the alleged injury in question employed by the said
American Express Company, under a contract in writ-
ing between him and said company, which contract was
dated October 15, 1896, a copy of which is hereto at-
tached, marked Exhibit ‘‘B’’, and made a part hereof,
and which said contract includes as part of its provi-
sions the contract hereinabove referred to and marked
Exhibit ‘‘A’’.
Further answering, defendant states that by the
terms of said contract hereinabove identified as Exhibit
‘““B’’, it was provided that in the consideration of the
premises and of the employment of deceased, he did
assume all risk of accident and injury which he should
meet with or sustain in the course of his employment,
whether occasioned or resulting by or from the gross or
other negligence of said corporation or person engaged
we 1G oe
in any manner in operating any railroad or vessel, or
vehicle, or of any employe of any such corporation or
person, or otherwise, and whether es in his death
or otherwise. |
Further answering, defendant states that by the
terms of said contract it was provided that in case of
any injury suffered by deceased, he would at once,
without demand, and at his own expense, execute and
deliver to the corporation or person owning or operat-
ing the railroad, stage or steamboat line upon which
he should be so injured, a good and sufficient release
under his hand and seal of all claims, demands and
causes of action arising out of such injury or connected
with or resulting therefrom.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
ceased ratified all agreements theretofore made by said
express company with any corporation or person oper-
ating a railroad, stage and steamboat line in which
such express company had agreed in substance that its
employes should have no cause of action for injuries
sustained in the course of their employment upon the
line of such contracting party, and deceased further
agreed to be bound by each and every part of such
agreement, in so far as to provisions thereof relative
to injury sustained by employes of the company were
concerned as fully as if he were a party thereto.
Further answering, defendant states that by the
terms of said contract it was provided that the de-
ceased did thereby authorize and empower said express
company at any time while he should remain in its
service to contract for him, and in his behalf in its own
name or in his name, with any corporation or persons
operating a railroad, stage or steamboat line, for his
x
— 157 —
transportation as a messenger or employe, free of
charge, upon the condition and consideration that
neither he nor his personal representatives, nor any per-
son claiming under him, would make any claim for
compensation because of any injury sustained by him,
whether resulting on (in) the gross negligence of such
corporations or persons or of any emploves of such
corporations or persons. or otherwise, and the contract
so made should be as binding and obligatory upon him
as if signed and delivered by him.
Further answering. defendant states that by the
terms of said’ cortract it was provided that the de-
ceased did agree that the provisions of said contract
should be held to inure to the benefit of any and every
corporation and to all persons upon whose railroad,
stage or steambort lines the American Express Com-
pany shall forward merchandise, as fully and com-
pletely as if made directly with such corporations or
persons. |
Farther answering. defendant states that by the
terms of said contract it was provided that the de-
ceased did agree thet in consideration of his employ-
ment bv said exnress company that .he would assure
all risks or accident or injury which he would meet or
sustain in the course of such employment, whether oc-
casioned by negligence of said company or any of its
members, officers, agents or employes, or otherwise.
Further answering, defendant states that at the time
of the alleged injury in question the deceased was in
the express car referred to in plaintiff’s petition, be-
ing transported by this defendant over its said line of
‘railway from points in the State of Kansas through the
State of Oklahoma and into the State of Texas, and was
in said car in pursuance of said contract hereinabove
ae $B
referred to as Exhibit ‘‘B’’, and states that plaintiff is,
therefore, now barred from maintaining this action.
Further answering, defendant admits that at and
prior to the death of the said William B. West, de-
ceased, he was employed by the American Express
Company as express messenger upon the express cars
operated by the defendant railway company over its
line of railroad between the City of Parsons, Kansas,
through the State of Oklahoma, to points beyond in
the State of Texas, and admits that the deceased, Wil-
liam B. West, in addition to his employment as express
messenger by the said American Express Company,
was also engaged in handling passenger baggage upon
the express car of the said defendant railway company,
and defendant railway company states that said Wil-
liam B. West, deceased, in performing said duties in
handling said baggage, was doing so under and by
virtue of his said employment by the said American
Express Company, and that such handling of such bag-
gage by said West was for and in behalf of and under
the direction of said railway company.
Wherefore, having fully answered, defendant prays
that it be adjudged to go hence without day, with its
costs in this behalf laid out and expended. (Rec., pp.
93-98.) 3
(Note—Exhibits A, B and C made a part of the third
amended answer are substantially the same, the only
portion of these exhibits necessary to be considered is
the accident release contract contained therein which
forms a part of Exhibit B and will be included in this
appendix.)
-
is EOD nt
Accident Release—‘‘ Exhibit B’’.
‘‘Whereas, I, the undersigned, have entered, or
am abount to enter, the employment of the Amer-
ican Express Company, and in the course of such
employment may be required to render services in
the care, carriage or handling of merchandise and
property in course of transportation by cars, ves-
sels and vehicles belonging to the different rail-
road, stage and steamboat lines upon which the
company relies for its means of forwarding prop-
erty delivered to it to be forwarded;
‘« And whereas, such express company, under its
contracts with many of the corporations and per-
sons owning or operating such railroad, stage and
steamboat lines, is or may be obligated to indem-
nify and save harmless such corporations and per-
sons from and against all claims for injuries sus-
tained by its employes;
‘‘Now, therefore, in consideration of the prem-
ises and of my said employment, I do hereby as-
sume all risks of accidents and injuries which I
shall meet with or sustain in the course of my em-
ployment, whether occasioned or resulting by or
from the gross or other negligence of any corpora-
tion or person engaged in any manner in operating
any railroad or vessel, or vehicle, or of any em-
ploye of any such corporation or person, or other-
wise, and whether resulting in my death or other-
wise.
‘¢And I do hereby agree to indemnify and save
harmless the American Express Company of and
from any and all claims which may be made
against it at any time by any corporation or per-
son under any agreement which it has made, or
may hereafter make, arising out of any claim or
recovery upon my part, or the part of my repre-
sentatives, for damages sustained by. reason of my
ah us
injury or death, whether such injury or death re-
sult from the gross negligence of any person or cor-
poration, or of any employe of ad person or cor-
poration. or otherwise.
‘‘And I hereby bind myself, my heirs, executors
and administrators with the payment to such ex-
press company, upon demand, of any sum which it
may be compelled to pay in consequence of any
such claim, or in defending the:same, including all
counsel fees and expenses of litigation connected
’ therewith.
‘‘T do further agree that in case I shall at any
time suffer any such injury, I will at once, with-
out demand, and at my own expense, execute and
deliver to the corporation or persons owning or
operating the railroad, stage or steamboat line
upon which I shall be so injured. a good and suffi-
cient release, under my hand and seal, of all
claims, demands and causes of action arising out
of such injury, or connected with or resulting
therefrom.
- **T do hereby ratify all agreements heretofore
made by said express company with any corpora-
tion or persons operating any railroad, stage and
steamboat line in which such express company has
agreed in substance that its employes shall have
no cause of action for injuries sustained in the
course of their employment upon the line of such
contracting party, and I agree to be bound by each
and every of such agreements in so far as the pro-
visions thereof relative to injuries sustained by em-
ployes of the company are concerned, as fully as if
I were a party thereto.
‘¢And I do hereby authorize and empower said
express company, at any time while T shall remain
in its service, to contract for me and in my behalf,
in its own name or in mine, with any corporation
or persons operating any railroad, stage or steam-
— 161 —
boat line, for my transportation as a messenger or
employe free of charge, upon the condition and
consideration that neither I nor my personal repre-
sentatives, nor any person claiming under me, will
make any claim for compensation because of any
injury sustained by me, whether resulting from the
gross negligence of such corporations or persons,
or of any employe of such corporations or persons,
or otherwise, and the contracts so made shall be
as binding and obligatory upon me as if signed
and delivered by me.
‘‘And I do hereby further agree that the pro-
visions of this agreement shall be held to inure to
the benefit of any and every corporation, and of all
persons upon whose railroad, stage or steamboat
lines the American Express Company shall for-
ward merchandise, as fully and completely as if
made directly with such corporations or persons.
‘‘T do further agree, in consideration of my em-
ployment by said American Express Company,
that I will assume all risks of accident or injury
which I shall meet with or sustain in the course of
such employment, whether occasioned by the neg-
ligence of said company, or any of its members,
officers, agents, or employes, or otherwise; and that
in case I shall at any time suffer any such injury,
I will at once execute and deliver to said company
a good and sufficient release, under my hand and
seal, of all claims, demands and causes of action
arising out of such injury or connecied therewith,
or resulting therefrom; and I hereby bind myself,
my heirs, executors and administrators with the
payment to said express company, on demand, of
any sum which it may be compelled to pay in con-
sequence of any such claim, or in defending the
same, including all counsel fees and expenses of
litigation connected therewith.
— 162 —
‘*Witness my hand and seal this 15th day of
Octoher, One Thousand Eight Hundred and
Ninety-six.
WituiaM Berper West.
In the presence of
G. C. Gartes.’’
(Ree., pp. 111-115.)
REPLY TO THIRD AMENDED ANSWER.
eS
Plaintiff for her reply to the third amended answer
_of defendant, save as in her complaint alleged, and as
hereinafter alleged, incorporated, admitted or quali-
fied, denies each and every allegation, averment, mat-
ter and thing in said third amended answer contained.
I.
Further replying, plaintiff hereby refers to and
a” adopts, repeats and reaffirms each and all of the alle-
gations as set out and alleged in her reply to the sec-
ond amended answer of said defendant and incorpo-
rates the same herein and makes them a part of this
reply, in like manner as though they were specifically
set out and realleged therein; and plaintiff further
specifically denies that the pretended contracts and
each of them set out and referred to in defendant’s
second and third amended answers were valid or in
force at the time of the collision set out in plaintiff’s
complaint, or at any time, and specifically denies that
said decedent, William B. West, was at the time of his
death or at any other time, working under said pre-
tended contracts, or either of them; and specifically
denies that on the day of his death or at any other time
Anne he was riding in said car of defendant in pursuance of
__ till
— 163 —
said pretended contracts or either of them, or of any
written contract as alleged in defendant’s second and
third amended answers.
Il.
Further replying, plaintiff alleges that at the time
said contracts and each and both of them were made
and ever since the making thereof the statutes of
the State of Kansas have provided as follows, to-wit:
‘(That railroads in this State shall be liable for all
damage done to person or property when done in con-
sequence of any neglect on the part of the railroad com-
pany.’’ :
Wherefore plaintiff demands judgment against said
defendant as prayed for in her complaint herein.
Ivo.tus B. West.
By S. Grant Harris and Bens. Martin,
Attorneys for Plaintiff.
Also as follows, to-wit: ‘‘Every railroad company
organized and doing business in the State of Kansas
shall be liable for all damages done to any employe
of said company in consequence of any negligence of
its agents or by any mismanagement of its engineers
or other employes, to any person sustaining such dam-
age.’’ ‘Provided, that notice in writing that an in-
jury has been sustained, stating the time and place
thereof, shall have been given by or on behalf of the
person injured to such railroad company within eight .
months after the eccurrence of the injury’’ (Ree., pp.
126-127).
(Note.—The portion of this reply which appears be-
low signatures of counsel was by leave of Court added
by an amendment on the eve of the trial.)
es ie
DEMURRER TO PLAINTIFF’S REPLY TO DE.
FENDANT’S THIRD AMENDED ANSWER.
(Caption and signature omitted.)
Comes now the defendant and demurs to the second
paragraph of plaintiff’s reply to the defendant’s third
amended answer for the following reasons, to-wit:
Said paragraph does not state facts sufficient to
avoid the allegations of the defendant set up in its
third amended answer and relied upon as a-defense in
this action.
Defendant further demurs to the third paragraph of
the plaintiff’s repty to the defendant’s third amended
answer, for the reason that said paragraph does not
state facts sufficient to avoid the allegations set up as
a defense by the defendant in its third amended an-
swer.
Wherefore the defendant prays judgment of the
Court upon its demurrer (Rec., p. 130).
ORDER OVERRULING DEMURRER.
Thereafter and on the 29th day of March, 1910, and
during the February, 1910, Term of said Court, the
demurrer of the defendant to the plaintiff’s reply to
the defendant’s third amended answer came on for
hearing before the Court, and after argument of coun-
sel, the Court being fully advised in the premises, over-
rules said demurrer, to which action of the Court in
overruling said demurrer the defendant then and there
excepts (Ree., p. 132).
——
REJOINDER TO REPLY TO DEFENDANT'S
THIRD AMENDED ANSWER.
(Caption and signatures omitted.)
Comes now the defendant and for its rejoinder to
the reply of the plaintiff to the third amended answer
of the defendant, denies each and every material alle-
gation therein contained (Rec., p. 139).
TESTIMONY OF G. C. GATES AND ALL PRO-
CEEDINGS OF COURT IN CONNEC.
TION THEREWITH.
G. C. Gates, being first duly sworn, testifies as fol-
lows on behalf of the defendant:
Direct Examination, by Mr. Allen.
. State your name?
G. C. Gates.
Have you been sworn, Mr. Gates?
. Yes, sir.
Where do you live at this time?
. Dallas, Texas.
What was your employment, Mr. Gates, during
the month of October, 1906; I don’t mean 1906, I mean
1896?
A. I was road agent American Express Company at
that time. ‘
Q. Were you acquainted with the person who was
an express messenger on the train known as William
B. West, in his lifetime?
A. Yes, sir.
plication for situation of William Burdett West, and
ask you if you are acquainted with that paper?
Q. I show you an American Express Company’s ap-
A. Yes, sir.
Q
A.
Q.
A
Q.
A
Q.
— 166 —
Q. Does that paper bear your signature, Mr. Gates?
A. Yes, sir.
Q. Does it bear the signature of Mr. West?
Mr. Taylor: That is objected to as incompetent, ir-
relevant and immaterial, and if it is what I assume it
. is, it seems to me it might be well to excuse the jury on
this argument because I propose to keep these papers
out of the record, if possible, and I don’t think they
are admissible and before we get them in the record I
want to dispose of that question.
' By the Court: Well, it is now near 12 o’clock, so we
will dispose of that question before noon.
Thereupon the Court admonished the jury, per-
mitted them to separate and ordered them to return
into Court at 1:30 p. m.
Mr. Taylor: As far as the signature is concerned, at
the proper time we are willing to admit that it is his
signature, if the papers have any bearing in the case
at all. The paper which is shown the witness and -
which counsel, I understand, propose to make an ex-
hibit in the case, is objected to on the ground that it
is not pleaded, and on the further ground that it is
incompetent, irrelevant and immaterial, and shows on
its face that it is void under the laws of the State of
Kansas, where is was made, as also appears upon the
face of the papers, and on the further ground that it
is a paper purporting to be an application and .agree-
ment, made between the plaintiff in this action and a
person not a party to this action and having no con-
nection with it, and a paper which the defendant in
this action has not. signed, and upon which the de-
fendant is in no way bound. The grounds with respect
to its being void under the statutes of the State of
Kansas, where’ it was made, of course, is purely a mat-
— 167 —
ter of law, and it may be we had better argue that at
this time, but I think the other objections are per-
fectly good to it, so I suppose we might as well take
that up first.
By the Court: Is not that one of the contracts
pleaded?
Mr. Taylor: I think not, but they have two others
here. We-.make the same objection the (to) the three
papers présented.
Mr. Ralls: We expect to show in this connection that
the deceased made these applications for employment
upon the terms expressed in the application, and that
he was employed according to those terms and was
acting as such employe under the terms of these ap-
plications at the time he received the injury, and that
in this application he had stipulated and agreed that
the American Express Company might, for him, go
into a contract releasing any railroad company from
liability on account of injuries in the words as set out
in the accident release clause contained. in the applica-
tion. And we expect to follow that up by showing that
the American Express Company did enter into a con-
tract releasing the M., K. & T. Railroad Company from
liability for any of the accidents provided for in this
application; and that the accident which caused his
death was one that was covered by the provisions of
this application, and that it released the M., K. & T.
Railroad Company from any liability on account of the
death of West, and the witness we had on the witness
stand was to show the signature of West, and to show
further that he was employed and worked under the
terms of these contracts.
Mr. Taylor: Of course it is denied he was working
under these contracts. I will ask the reporter to enter
— 168 —
right here the further objection that the contracts and
matters which counsel has referred to as being made
between the defendant railroad company and the
American Express Company are not pleaded as set out
and could not possibly bind the plaintiff in this ac-
tion; they are immaterial.
Whereupon, the hour of noon having arrived, court
took a recess until 1:30 p. m.
AFTERNOON SESSION.
Thereupon the following proceedings were had in
the presence of the jury:
_ Mr. Allen: We now offer in evidence the application
for situation of William B. West, Parsons, Kansas, for
the pesition of messenger, dated October 18, 1896, the
signature of Mr. West having been admitted by coun-
sel for the plaintiff, which document includes the acci-
dent release over the signature of Mr. West, as ‘‘De-
fendant’s Exhibit A’’.
' Mr, Allen: The defendant now offers in evidence the
application for situation of W. B. West, the deceased,
for the position of driver, bearing date of January 9,
1893, and the line being erased there with February 1st
inserted above, it being admitted by the plaintiff that
the signature of W. B. West appended *» the applica-
tion is the signature of the deceased W. b. West, which
application also includes a release accident clause over
said signature, as ‘‘Defendant’s Exhibit B’’.
Mr. Allen: Defendant now offers in evidence the ap-
plication for situation of William B. West of Par-
sons, Kansas, as driver, dated October 18, 1983 (1893),
the signature of said William B. West, or W. B. West,
being admitted by the plaintiff, which document also
includes accident release. In connection with this ap-
oe
plication I will say it has not been pleaded in our an-
swers in this case for the reason that at the time of
the preparation of the answer counsel for defendant
had not been supplied with the release and we now ask
leave to amend our third amended answer to show the
execution of this release and our reliance upon this de-
fense in the same manner as the other releases have
been pleaded. We ask the exhibit by marked *‘ Defend-
ant’s Exhibit C’’.
Mr. Taylor: Plaintiff objects to the offer of Exhib-
its ‘‘A’’, ‘*B’’ and ‘‘C’’ on the ground that they, and
the papers and contracts referred to in them, have not
been pleaded, and that since they are incomplete, and
on the further ground that they are incompetent, ir-
relevant and immaterial, and show on their face that
they refer to other employment than that in which
plaintiff was engaged at the time of this accident, and
on the ground that upon their face they are outlawed
and barred by the statute, and on the further ground
that the plaintiff at the time of this accident was not
engaged in any employment referred to or contem-
plated in the instrument, and on the further ground
that the instruments and all three of them are shown
on their face to be contracts of the State of Kansas
and made therein, and that they are void absolutely
under the laws of the State of Kansas, wherein they
were made, and under the decisions of that State, and
in connection with the last of these objections plaintiff
offers the statutes in evidence of the State of Kansas,
which were pleaded in the reply to defendant’s second
and third amended answers.
Mr. Ralls: The defendant objects to the introduc-
tion of the Kansas statute referred to on the ground
it is incompetent, irrelevant, immaterial and inadmis-
— 170 —
sible. I am not objecting to the form he is offering it,
but to the statute itself.
By the Court: Objection overruled.
Mr. Ralls: The defendant excepts.
Mr. Taylor: The section referred to which the
plaintiff introduces in evidence are those contained in
the General Statutes of Kansas of 1905, on page 1257,
being sections Nos. 6311 and 6312.
Section 6311 reading:
‘*Liable for damages. That railroads in this
State shall be liable for all damages done to per-
son or property, when done in consequence of any
neglect on the part of the railroad companies”’ (L.
. 1870, Ch. 93).
Section 6312 reading:
‘“*To employe. 22. Every railroad company or-
ganized or doing business in the State of Kansas
shall be liable for all damages done to any employe
of said company in consequence of any negligence
of its agents, or by any mismanagement of its en-
gineers or other employes, to any person sustain-
ing such damages: Provided, That notice in writ-
ing that an injury has been sustained, stating the
time and place thereof, shall have been given by
or on behalf of the person injured to such rail-
road company within eight months after the occur-
rence of the injury.’’
There is something further in that section, but noth-
ing that relates to this case, so I will merely introduce
that portion of that section unless counsel wants me to
read it all.
Mr. Ralls: We will offer evidence to show that the
deceased was working under this particular contract
ra, ee
at the time he was injured; that this contract was
broad enough and did cover the employment while he
was in the employ of the American Express Company.
By the Court: It has always been a question with
this Court as to how far things ought to go with refer-
ence to public policy; it is a pretty broad question.
This Kansas statute is plain concerning the actions. of
railroads in paying damages, etc. I am of the opinion,
gentlemen, from what I have read and the argument
here, that these contracts are void. You can make
your offer to prove them and’ get them in the record
and we will go on. I will so hold that the contracts
are invalid; my reason for sustaining the objection is
- under the Kansas statute.
Mr. Ralls: The defendant excepts to the ruling of
the Court.
Mr. Ralls: We now offer to prove by this witness
that the decedent, Mr. West, was, at the time of the
accident which resulted in his death, working for the
American Express Company under the contracts of em-
ployment that have been offered in evidence hereto-
fore.
Mr. Taylor: We desire to make the same objection
to this offer of counsel as those made to the offer to
introduce the exhibits. |
By the Court: Objection sustained.
Mr. Ralls: The defendant excepts.
Mr. Ralls: I presume the objection is sustained on
the theory that the contracts are void?
By the Court: Yes.
Mr. Ralls: The defendant excepts.
Q. That is all with this witness.
(Witness excused) (Rec., pp. 206-213).
Pa, |, peel
TESTIMONY OF F. D. ADAMS AND ALL PRO-
CEEDINGS OF COURT IN CONNEC-
TION THEREWITH.
F. D. Adams, being first duly sworn, testified as fol-
lows on behalf of the defendant:
Direct Examination, by Mr. Allen.
Q. State your name?
A. F. D. Adams.
Q. Have you been sworn as a witness, Mr. Adams?
A. Well, I was sworn yesterday; yes, sir.
Q. What is your business, Mr. Adams?
A. At present time, general superintendent of the
Southern Division of the American Express Company.
Q. Did you know Mr. West in his lifetime?
A. Yes, sir.
Q. Did you know of the—at the time of his death, or
do you know the time of his death?
A. I didn’t understand your question.
Q. Did you know at what time he met his death?
A. Yes, sir; May 15, 1908.
Q. At that time do you know what relation existed
between Mr. West and the M., K. & T. Railroad Com-
pany with reference to handling baggage of that com-
pany?
A. Yes, sir.
Q. What was that relation, Mr. Adams?
Mr. Taylor: I would like to ask first if there was
anything in writing, any written agreement.
By the Court: Don’t-you plead Mr. Taylor he also
handled passenger baggage?
Mr. Taylor: Yes, sir; we plead it.
' Mr. Allen: We expect to go further by this witness.
an 178
By the Court: All right; go ahead and ask the ques-
tion. ‘
Mr. Taylor: Is there a written contract regarding it?
Witness: I don’t exactly understand what you refer
to as a written contract.
Mr. Taylor: He asked you what the relation was be-
tween the two and I want to know if it was expressed
by any written agreement?
Witness: I couldn’t say that there was.
Q. Now, what was that relation, Mr. Adams?
Mr. Taylor: That is objected to as incompetent, ir-
relevant and immaterial.
By the Court: Objection overruled.
Mr. Taylor: The plaintiff excepts.
A. Well, he was a joint messenger and baggage man.
Q. By joint you mean joint with the M., K. & T. and
the Express Company?
A. Worked for both companies; yes, sir.
Q. Do you know what proportion of his salary was
"paid by those companies, or whether it was paid in any
proportion?
A. Equal division.
By Mr. Taylor (Q.): Was this in writing, any of it,
relating to the salary as between the Railroad Com-
pany and the Express Company; if it is in writing, this
is not the best evidence?
Mr. Ralls: We offer this for the purpose of showing
that the deceased was a joint employe of the American
Express Company and the M., K. & T. Railroad Com-
pany, while he was running as messenger on the line.
Mr. Taylor: If this agreement was in writing it is
the best evidence; I don’t see why we are bound by
any agreement between these two companies.
—174—
By the Court: If the agreement was not in writing
he can answer the question.
Mr. Taylor: The plaintiff excepts.
By Mr. Allen (Q.): Have you got a copy of a notice
among your files or in your possession directed to the
various messengers of the American Express Company
as to their duties with reference to the baggage of the
Missouri, Kansas & Texas Railroad Company?
. [have a copy of a general circular issued to them.
. Have you it with you?
. Yes, sir.
. Produce it, please, sir?
. Here is a copy.
_By whom was this circular issued, Mr. Adams?
. It was issued by myself.
. In what capacity?
. As superintendent.
Q. It is directed to joint messengers and baggage
men; it appears to be on the M., K. & T. line; that
means joint messengers of what?
A. Joint messengers; we call or term these men mes-
sengers, and the railroad baggage men, and the word
joint signifies they worked for both companies.
Q. Does that include the position which Mr. West
occupied ?
A. Yes, sir.
Mr. Taylor: That is objected to as calling for a con-
elusion and incompetent, irrelevant and immaterial,
and we ask that it be stricken.
By the Court: Objection sustained; the answer will
be stricken.
>OPrOrO>OoOD
Mr. Allen: We offer in evidence the paper identified
by the witness, being a copy of instructions to joint
—175—
messengers and baggage men on the M., K. & T. lines
as ‘‘ Defendant’s Exhibit D”’.
Mr. Taylor: It is objected to on the ground that it
is incompetent, irrelevant and immaterial, and not the
best evidence, and that the recitals therein contained
are not shown to have ever been brought to the at-
tention of the plaintiff in this action, and that the re-
citals themselves have no support in the evidence to
sustain them.
Mr. Allen: I expect to show further how it was trans-
mitted and delivered, and how it reached these messen-
gers, and how their attention was called to it.
By the Court: If there is something in writing about
the joint payment, I think it would he better than what
_ you are offering there.. Objection sustained.
Mr. Allen: The defendant excepts.
Mr. Allen: Now TI take it that the Court has sus-
tained this objection because it has not been sufficiently
identified.
By the Court: Well, it is simply just what he might
have told this deceased, William B. West.
_ Mr. Allen: We offer to show by Mr. Adams that at
the time Mr. West went into the service as messenger
he understood that it was his, West’s, duties to per-
form joint services for the Railway — and the
Express Company.
Mr. Taylor: Further than the matters offered to be
shown and admitted by the pleadings, we object to the
offer as incompetent, irrelevant and immaterial.
By ihe Court; I think I will let him answer the ques-
tien; objection overruled.
Mr. Tayler: The plaintiff excepts.
Q. What were Mr. West’s duties with respect to the
*
—176—
Railway Company as to handling the baggage, Mr.
Adams? :
A. Received the baggage at the stations, made a
record of it, and put it off at its destination in the
same manner any baggage man did.
Q. Do you know what runs he had at the time of his
death?
_A. He was running between Parsons, Kansas, and
Dallas, Texas.
Q. Do you know whether, under such runs as that,
he handled shipments of express from points in the
State of Kansas to points in other States, for instance,
Oklahoma or Texas?
Mr. Taylor: That is objected to as incompetent, ir-
relevant and immaterial, but:we will admit that he
handled express and baggage matter between local
points in each State and also between points in one
State and points in another State ~
By the Court: Answer the question, then.
Mr. Allen: That is all I wanted to prove by him.
Q. Do you know whether Mr. West, at the time he
was employed as messenger, knew that he was to han-
dle the baggage of the railroad company and act as
joint employe of the Railroad Company and the Fix-
press Company? .
Mr. Taylor: As to his opinion as to what Mr. West
knew at that time we object as incompetent, irrelevant
and immaterial.
By the Court: Objection overruled.
Mr. Taylor: The plaintiff excepts.
Q. (Question read by stenographer.)
A. He did, and was told to post himself in the work
of both companies.
Q. Do you know, Mr. Adams, whether or not that
*
-—177 —
train ypon which Mr. West was messenger carried in-
terstate baggage, or baggage from points in one State
to points in another State?
A. I would not be able to say upon that varteatie
occasion; I could state as to express.
Q. That is all.
Cross-Examination, by Mr. Taylor.
Q. Who paid Mr. West?
A. He drew his money from the Express Company.
Q. All of his salary came from the Express Com-
‘pany?
A. Yes, sir.
Q. And for any work he done for them in handling
baggage the Railroad Company would pay over to the
Express Company? :
A. They paid us one-half of his salary; we draw a
bill against them in his name and the other baggage
men.
Q. That is all.
(Witness excused) (Rec., pp. 213-219).
Defendant’s Exhibit D.
‘“St. Louis, Mo., July 21st, 1897.
“‘To Joint Messengers € Baggagemen,
_ “On M., K. & T. Lines.
‘“GENTLEMEN :
‘‘In some instances I find there has been con-
siderable controversy between messengers and
train crews on joint runs in regard to your duties
to the railroad company. Inasmuch as the rail-
road company pay a portion of your salary you
are just as much an employe of the railroad on
which you run as you are of the express company,
and you must be just as careful of your interests
— 178 —
as you are of this company and perform your du-
ties to that company, as near as possible, in the
same manner that they would be performed by
exclusive baggagemen. In the event of any con-
troversy between yourself and flagman, or porters,
you should refer the matter to the conductor and
carry out his instructions.
‘*There has been some difficulty in regard to the
handling of train. boxes in baggage cars, some mes-
sengers insisting that there was not room in the
baggage end of the car and they should be carried
on the platform. It does not matter where the
space in your car is, in the express or baggage
_ end, if there is room in the car anywhere the box
.
should be carried there, if requested to do so by
the train men,
. **There is no reason why the joint business can-
not be handled successfully and in harmony with
the train crews, and I want you to take up with
the trainmaster of your division or the general
baggage agent, any matter of interest of the rail-
road company. Any difficulties between yourself
and train men can, and unquestionably will, be
settled by the conductor in charge of the train, if
appealed to. There is no disposition on the part
of either company, in whose service you are, to
impose upon you duties that you cannot perform,
and I know very well that the superintendents and
trainmasters of the railroad company will sustain
you where it is shown that you are endeavoring to
perform your duties satisfactorily. .
‘‘There has been no serious complaint, but it
must be understood that the instructions of the
railroad company are to be complied with, where
the same do not conflict with the standing rules of
—179 —
this company in ne to the care of money and
valuables.
Yours truly,
(Signed) F. D. Apams,
Superintendent.”’
(Rée., p. 277.)
TESTIMONY OF C. R. DAIGH ON BEHALF OF
RAILWAY COMPANY.
C. R. Daigh, being first duly sworn, testified as fol-
lows on behalf of the defendant: ‘
Direct Examination, by Mr. Ralls.
Q. State your name.
A. C. R. Daigh.
Q. Mr. Daigh, you are the same witness who testified
here yesterday, are you not?
A. Yes, sir.
Q. And what is the name of the engineer pulling
your train that collided with No. 5%
A. Lannihan.
Q. How long had he been pulling a freight train be-
tween Parsons and Muskogee?
A. I couldn’t say exactly, a couple of years, I guess;
maybe longer.
Q. Do you know how long he had been an engineer
on that line?
A. No, sir; I couldn’t say.
Q. And how long had you been a conductor, you say?
A. About six years.
Q. And you were well acquainted with Mr. Lanni-
han, were you?
A. Yes, sir.
—
— 180 —
Q. You saw him just before you started out of Mus-
kogee that day, did you?
A. Yes, sir.
Q. I believe you stated saibeais he had the same
kind of an order you had?
A. Yes, sir.
Q. Now, how was it that you and Mr. Lannihan hap-
pened to start out of here in violation of that order?
_ Mr. Taylor: We object as incompetent, irrelevant and
immaterial.
Mr. Ralls: We offer to show by this witness this
wreck was not caused by any gross negligence on the
part of the engineer or the conductor.
‘By the Court: Show what was done; let him answer.
A. It was a misealculation of time.
Q. In what way, Mr. Daigh?
Mr. Taylor: We object as — irvilevant
and immaterial.
By the Court: Let him state what was hei objection
sustained.
Q. Just explain, then, to the jury how the mistake
occurred.
A. Well, to No. 5’s time——
Mr. Taylor: We object as incompetent, irrelevant and
immaterial.
By the Court: Let him state; go ahead.
Mr. Taylor: The plaintiff excepts.
A. No. 5’s time and all of the rest of the trains I
was to meet was miscalculated just an hour.
Q. By who?
A. By myself.
Q. It was a matter of calculation, then?
A. Yes. 3 J
— 181 —
Q. How long had you been on this particular run as
conductor?
A. You mean this division?
Q. Yes.
A. I had been down here about a couple of months,
I suppose.
Q. State whether or not you knew the schedule time -
of this flyer known as No. 5 at that time.
Mr. Taylor: We object as incompetent irrelevant and
immaterial. :
By the Court: Objection overruled.
Mr. Taylor: The plaintiff excepts.
A. Yes, sir.
Q. Now, then, explain to the jury how it was, if you .
can, that this miscalculation was made; in what way?
Mr. Taylor: We object as incompetent, irrelevant and
immaterial.
By the Court: Objection sustained.
Mr. Ralis: We offer to show by the. witness that it
was an oversight and not intentional on his part that
the miscaleulation was made.
Mr. Taylor: We object as incompetent, irrelevant and
immaterial.
By the Court: Objection sustained.
Mr. Ralls: The defendant excepts.
Q. Mr. Daigh, your train was going from Muskogee
to what point?
A. Parsons, Kansas.
Q. State whether or not you were carrying loads
from Muskogee to Parsons, Kansas, or other point be-
yond there.
Mr. Taylor: That is objected to on the grounds that
fact as respect to both trains have been admitted.
on
By the Court: Objection overruled; let him answer.
Mr. Taylor: The plaintiff excepts.
(Question read by stenographer.)
A. Yes, sir.
Q. I ask you to state to the jury whether or not the
oversight on this miscalculation of the time was will-
fully done by you or not?
Mr. Taylor: We object as incompetent, irrelevant and
immaterial, and calling for a conclusion.
By the Court: Objection sustained.
Mr. Ralls: The defendant excepts.
A. That is all.
Mr. Taylor: No questions.
«Witness excused. (Rec., pp. 243-246.)
TESTIMONY OF G. H. BOWERS.
G. H. Bowers, being first duly sworn, testified as fol-
lows on behalf of the defendant.
Direct Examination, by Mr. Allen.
Q. State your name.
A. G. H. Bowers.
Q. What is your business, Mr. Bowers?
A. General baggage agent for the M., K. & T.
Q. What was vour business during the month of
May, 1908?
A. Same business.
Q. Do you recollect the collision between train No. 5
and the freight train near Muskogee on the 15th day
of that month?
A. Yes, sir.
Q. Did you know the express and baggage men on
that train, Mr. West?
A. Very well.
= SE ce
Q. Do you know whether or not Mr. West was hand-
ling any baggage for the M., K. & T. on that road
that day?
A. Yes, sir.
_ Q. Do you know whether he had any baggage that
was destined for some point in one State to a point in
another State; that is, baggage which passed over the
State line?
A. He had baggage from Chetopa, Kansas, to Broken
Arrow, Oklahoma; he had baggage from New York for
Dallas, Texas, some 10 or 12 pieces; I recollect one lot
of two pieces from Shreveport, Illinois, to Muskogee,
Oklahoma.
Q. That is all.
Cross-Examination, by Mr Taylor.
Q. Did he also have baggage between local points in
Oklahoma?
A. I think he had some in Vinita; I got records from
the agents of what they shipped on that train.
Q. Did he also have baggage from local points in
Kansas?
A. T didn’t look that up; I only looked up the bag-
gage he received after he left Parsons.
Q. I mean he did carry baggage between local
points?
A. That train usually did.
Q. That is all.
Witness excused. (Ree., pp. 246-247.)
ieee $84
INSTRUCTIONS REQUESTED BY DEFENDANT
AND REFUSED.
‘ 1
The Court instructs the jury to find the issues in
favor of the defendant.
4.
If you find from the evidence in this case that the
deceased, W. M. West, was not an employe of the de-
fendant, then the defendant would not be liable unless
you should further find that the defendant was guilty
of gross negligence and that as a result of such negli-
- gence the deceased was killed.
3.
If you find from the evidence in this cause that the
said W. B. West was employed by the defendant as
baggage master and was acting as such at the time of
his death, you will find the issues in favor of the de-
fendant.
4.
If you find from the evidence in this cause that the
deceased, W. B. West, was an employe of the defend-
ant, at the time he received the injuries which caused
his death, and that as such employe he was engaged
in interstate commerce as hereafter explained, then the
laws of the United States would govern the liability of
the defendant herein.
5.
If you find from the evidence in this action that the
defendant, W. B. West, at the time he received the in-
juries which caused his death was not an employe of
ss 485
the defendant, and if you further find that the deceased
W. B. West entered into the contract introduced in evi-
dence stipulating for a release of the defendant, then
your verdict should be for the defendant.
7.
If you should find for the plaintiff your verdict
should be for such amount as would compensate the
plaintiff for the financial loss sustained and you are not |
to permit your sympathy to influence your verdict. The
plaintiff is not entitled to recover for loss of the society
of deceased nor for mental anguish. Your verdict must
be based upon the financial loss in dollars and cents.
8.
If you find for the plaintiff your verdict must not ex-
ceed ten thougand dollars.
6.
_ If you find from the evidence that the train upon
which West was working was at the time of his death
engaged in commerce between the States and that he
was an employe of the defendant, the plaintiff is not
entitled to recover.’’ (Rec., pp. 281-284.)
(Note: The exceptions of the plaintiff in error, Rail-
way Company, to the refusal of the Court to give these
requested instructions as appearing in the record are
omitted.)
CHARGE OF THE COURT.
1. &
Gentlemen of the Jury:
You are instructed that this action is brought by the
plaintiff as the widow of William B. West for the bene-
fit of herself as such widow and of the minor children
— 186 —
of herself and of said William B. West, deceased, for
the alleged negligent killing of her husband while he
was running upon one of the defendant’s trains as an
express messenger in the employ of the American Ex-
press Company.
Plaintiff alleges that at and prior to the time of the
death of said William B. West he was employed by the
American Express as a messenger, upon the express
-cars operated by the defendant company over its line
of railroad between Parsons, Kansas, through the State
of Oklahoma to points beyond in the State of Texas.
That in addition to his duties as express messenger
said West was also engaged in handling passenger bag-
gage upon the express cars of the defendant company.
That on May 15, 1908, at about 12 o’clock noon of said
day, said William B. West, in the course of his em-
ployment, was riding in one of the express cars of the
defendant company, then being operated by defendant
over its railroad in a southerly direction through the
State of Oklahoma upon its train known as the ‘‘ Katy
Flyer’’. That when said train reached a short dis-
tance south of the Arkansas River between the statio.us
of Verdark and Muskogee, said train, through gross
craelessness and negligence upon the part of the rail-
road company, and while said train was running at a
high and dangerous rate of speed, caused and allowed
to collide in a head-end collision with a locomotive and
freight train, also owned, maintained and operated by
said defendant company, and which freight train was
also through the gross carelessness and negligence of
said defendant company being run and operated by
said defendant company upon the same track, in a
northerly direction, at a high and dangerous rate of
speed; and that the said William B. West was by said
; — 187 —
‘> collision and by the gross carelessness and negligence
on the part of the defendant and without any fault or
neglect upon his part was then and there caused to sus-
tain and receive personal injuries which resulted in his
immediate death. Plaintiff brings suit in the sum of
$50,000.00 for said killing.
The defendant has filed an answer which after deny-
ing each and every material allegation in plaintiff’s
petition avers that if the said William B. West was in-
jured and killed at the time, place and in the manner
alleged his death was not due to any negligence on the
part of the defendant or any of its servants, agents or
employes, but was due solely to the negligence on the
part of the said William B. West. Defendant further
alleges in its answer that the defendant before entering
into the service of this company had executed two cer-
tain contracts to the American Express Company by.
which claims for damages for injuries were waived and
released and in which contract he agreed to release any
railroad on which he might be working at the time of
any injury, and that the plaintiff is now barred from
maintaining this action.
° 2.
You are further instructed that the jury are the sole
judges of the weight of the testimony and credibility
of the witnesses, but the law of the case is that which
is given to you by the Court in these instructions, and
you are to be governed by no other law. In determin-
ing the weight of the testimony and credibility of the
witnesses you have the right to look to each witness as
he conducted himself while upon the witness stand, to
his fairness or lack of fairness, to his intelligence or
his incapacity as the same appeared to you, to his in-
— 188 —
terest in the case, if any, and you have the right to
look to each and every surrounding circumstance that
appears in the testimony. If there is a conflict between
the different parts of the testimony of any witness it
is your duty to reconcile the same, if this can be done,
upon the theory that each witness has spoken the
truth; but if this cannot be done then you may disre-
gard any part of the testimony of any witness, or all
of his testimony, as you may see fit under the sur-
rounding facts and evidence in the case. If you be-
lieve from the evidence that any witness has willfully
testified falsely to any fact material to the issue in
this case, then you are at liberty to disregard any part
or the whole of the testimony of such witness.
3.
The burden is upon the plaintiff to sustain her con-
tention by a preponderance of the testimony. By this
is meant by the greater weight of the testimony, and
not necessarily the number of witnesses testifying upon
the one side or the other. :
4.
You are instructed that it is the duty of a railway
company to so conduct, maintain and run its trains
used in its business in such a manner as to prevent in-
jury to persons riding on said trains.
4%.
By ‘‘ordinary eare’’ as that term is used in these in-
structions, is meant that degree of care which a person
of reasonable prudence and caution would likely use
and exercise under the same or similar circumstances
and conditions, and a failure to use such care is negli-
gence on the part of the person or corporation guilty
=: $80 scm
of such failure. That is to say, negligence is the fail-
ure to do or perform some act or the doing of some act |
which, from the nature of the act and under the circum-
stances, may result in injury or damage to the person
or property of others, and which a person of reasonable
prudence would or would not do, as the case may be,
under the same or similar circumstances, and the rule
here stated applies equally to persons and corporations,
the latter, that is, corporations, being chargeable with
the negligence, if any, committed by their officers,
agents and employes in the discharge of their duty as
such.
5.
Now bearing in mind these instructions and apply-
ing them carefully to the evidence before you, if you
believe and find from a preponderance of the testimony
that on or about the 15th day of May, 1908, in the ©
County of Muskogee, William B. West was personally
injured by being in a wreck caused by a collision be-
tween the ‘‘Katy Flyer’? and one of defendant’s
freight trains on its line of railroad south of the Ar-
kansas River Bridge, and you further find that such
injury was the direct or proximate result of the negli-
gence of the defendant, its agents, officers or employes
to properly conduct and run its trains on said railroad
track; that is, if you so find and believe that the in-
jury sustained by William B. West was the direct or
proximate result of the failure of defendant, its officers,
agents or employes to exercise that degree of diligence
and care to prevent injury to others as a person of
ordinary caution and prudence would likely have used
under the same or similar circumstances, and you far-
ther find that such injury caused the death of the said
William B. West. then it will be vour duty to return a
a 19)
verdict in favor of the plaintiff herein for such sum,
as, in your judgment, the evidence shows her to be
entitled to under other instructions given you in this
case.
6.
If you find for the plaintiff in this case, then in
assessing the damages which she is entitled to recover,
the jury should assess the same with reference to the
pecuniary loss sustained by the widow and children of
the deceased, and, determining this, you may consider
the probable earnings of the deceased, his age, ex-
perience, habits, health, and bodily qualifications, dur-
ing what probably would have been his life time if he
had not been killed, so far as these matters have been
shown by the evidence; but the amount you allow can-
not exceed the sum mentioned in the plaintiff’s peti-
‘tion.
y
Nine of the jury concurring is sufficient to return a
verdict for plaintiff or defendant, and if the verdict is
rendered by nine or more, but by less than the whole
number of jurors, then the jurors who concur in the
verdict must sign their names thereto. If the verdict
is concurred in by the entire jury, then you will select
some one of your number foreman and have him sign
the verdict as such foreman and return it into court
(Rec., pp. 287-294).
(Note.—The exceptions of the plaintiff i in error, Rail-
way Company, to the giving of these instructions by
the Court as appearing in the record are omitted.)
— 191 —
MOTION FOR NEW TRIAL.
(Caption and signatures omitted. )
Comes now the defendant in the above-entitled cause,
and by its attorneys, and moves this Honorable Court
for a new trial, and prays that it be granted a new trial
for the following causes, each and all of which ma-
terially affect its substantial rights:
i
For the reason that the damages awarded by the
jury were excessive and appear to have been given
under the influence of passion and prejudice, and in
support of this assignment of error defendant alleges
that the jury did not deliberate upon their verdict to
exceed twenty minutes, and after retiring to their jury
room to deliberate upon their verdict returned their
verdict into court within twenty minutes after the case —
had been submitted to them for deliberation; and de-
fendant asserts that it was impossible within the short
time above stated for them to consider the evidence in
the case, and that the evidence in the case was not
considered by the jury.
II.
For the reason that the verdict of the jury is not sus-
tained by sufficient evidence.
Til.
For the reason that the verdict of the jury is without
evidence to support it.
IV.
For the reason that the verdict of the jury is con-
trary to law.
wit SO sags
v.
For errors at law occurring at the trial and excepted
to by the defendant.
VL
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 1, to which refusal of
the Court the defendant then and there objected and
excepted and still objects and excepts, said instruc-
tion No. 1, requested being as follows: (Requested in-
. struction No. 1 is herein quoted in full.)
VII.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 2, to which refusal of
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruction
No. 2, requested being as follows: (Requested instruc-
tion No. 2 is herein quoted in full.)
Vil.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 3, to which refusal of
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruc-
tion No. 3, requested being as follows: (Requested in-
struction No. 3 is herein quoted in full.)
*
IX.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 4, to which refusal of
— 193 —
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruction
No. 4 requested being as follows: (Requested instruc-
tion No. 4 is herein quoted in full.)
x.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 5, to which refusal of
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruction
No. 5 requested being as follows: (Requested instruc-
tion No. 5 is herein quoted in full.)
XI.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
requested by it, and numbered 6, to which refusal of-
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruction
No. 6 requested being as follows: (Requested instruc-
tion No. 6 is herein quoted in full.)
XII.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruc-
tion requested by it, and numbered 7, to which refusal
of the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruc- —
tion No. 7 requested being as follows: (Requested in-
struction No. 7 is herein quoted in full.)
XIII.
That the Court erred in refusing to give to the jury
at the request of the defendant the written instruction
— 194 —
requested by it, and numbered 8, to which refusal of
the Court the defendant then and there objected and
excepted, and still objects and excepts, said instruction
8 requested -being as follows: (Requested instruction
No. 8 is herein quoted in full.)
XIV.
The Court erred in instructing the jury in accordance
with its instructions, numbered 1, which was given to
_ the jury, to the giving of which instruction the defend-
ant then and there objected and excepted, and still ob-
jects and excepts, said instruction No. 1 being as fol-
lows: (Instruction No. 1 is herein quoted in full.)
XV.
That the Court erred in instructing the jury in ac-
cordance with its instruction, numbered 2, which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
and still objects and excepts, said instruction No. 2
being as follows: (Instruction No. 2 is herein quoted
in full.)
XVI.
That the Court erred in instructing the jury in ac-
cordance with its instruction, numbered 3, which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
and still objects and excepts: (Instruction No. 3 is
herein quoted in full.)
XVII.
That the Court erred in instructing the jury in ac-
cordance with its instruction, numbered 4, which was
given to the jury, to the giving of which instruction
— 195 —
the defendant then and there objected and excepted,
and still objects and excepts, said instruction No. 4
being as follows: (Instruction No. 4 is herein quoted
in full.)
XVIII.
That the Court erred in instructing the jury in ac-
cordance with its instruction numbered 414, which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
and still objects and excepts, said instruction No. 414
being as follows: (Instruction No. 41% is herein quoted
in full.)
XIX.
That the Court erred in instructing the jury in ac-
cordance with its instruction numbered 6, which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
and still objects and excepts, said instruction No. 5
being as follows: (Instruction No. 5 is herein quoted
in full.)
XX.
That the Court erred in instructing the jury in ac-
cordance with its instruction, numbered , which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
and still objects and excepts, said instruction No. 6
being as follows: (Instruction No. 6 is herein quoted
in full.)
XXI.
That the Court erred in instructing the jury in ac-
cordance with its instruction, numbered 7, which was
given to the jury, to the giving of which instruction
the defendant then and there objected and excepted,
ome OG ns
and still objects and excepts, said instruction No. 7
being as follows: (Instruction No. 7 is herein quoted
in full.) ’
XXII.
That the Court erred in the admission of evidence
offered by the plaintiff, to which action of the Court
the defendant objected and excepted at the time and
still objects and excepts.
XXITl.
That the Court erred in the exclusion of evidence of-
fered by the defendant, to which action of the Court
the defendant excepted at the time and still excepts.
. The defendant states each and all of the errors of
the Court, as herein alleged, were prejudicial to its
rights and prevented it from having a fair trial.
Wherefore, defendant prays that the verdict therein
rendered be vacated, and that a new trial be granted
it, and that it have all further and proper relief to
which it may be entitled’’ (Rec., pp. 299-311).
(Note.—-The charge of the Court and the several in-
structions requested by the Railway Company are
-eopied in this motion as it appears in the record, but
inasmuch as they appear elsewhere in this appendix,
they have been omitted from the motion as herein eon-
tained.)
APPLICATION AND PETITION FOR REHEARING.
(Caption and signatures omitted.)
Now, on this day comes the Missouri, Kansas &
Texas Railway Company, plaintiff in' error, and re-
spectfully petitions this Honorable Court for a rehear-
ing of this ease, and for grounds of such petition, re-
spectfully states that questions decisive of this case
— 197 —
and duly submitted by counsel have been overlooked
by the Court in the decision rendered herein, and that
said decision is in conflict with controlling decisions
of this Court, and of its predecessor, the Supreme
Court of the Territory of Oklahoma; and, also, the
Supreme Court of the United States, to which the at-
tention of the Court was not called, either in the brief
or oral argument, and which have been overlooked by
the Court. .
Counsel for plaintiff in error respectfully assert:
*
That this Court, in its opinion and judgment herein,
misunderstood the pleadings.
Il.
That this Court, in its opinion and judgment herein,
misunderstood the evidence.
Til.
That this cause was tried on the theory that the issue
was made by the pleadings that the deceased, William
B. West, was an employe of the plaintiff in error, Rail-
way Company, and that the evidence at the trial
showed that he was such an employe, and under deci-
sions controlling upon this Court, to which the atten-
tion of this Court was not called, either in brief or in
oral argument, this case must be decided by this Court
upon that theory.
IV.
Plaintiff in error did not waive its exceptions to the
action of the trial court in sustaining the objections of
the defendant i» error to the evidence offered by the
plaintiff in ..or, which evidence was corroborative of
satis BER asin
the evidence of the plaintiff in error establishing that
the deceased, William B. West, was an employe of
the plaintiff in error, for the reason that the parties,
by their pleadings and in the trial of the case, had
assumed as an established fact that the said William
B. West, at the time of the accident, was an employe
of the’plaintiff in error, and by reason of being such an
employe, had the right to be upon the train at the time
of the injury, which said evidence referred to by the
Supreme Court of the State of Oklahoma is a certain
written communication dated July 21st, 1897, trans-
mitted by F. D. Adams, as general superintendent of
the American Express Company, to the said William
B. West, reminding him that he was an employe of the
plaintiff in error, Railway Company, as well as the
American Express Company, in the performance of
the duties which were the identical duties referred to
in the defendant in error’s petition in this cause, and
which written communication, so far as applicable to
the question, is in words and figures as follows:
‘*In some instances, I find there has been con-
siderable controversy between messengers and
train crews on joint runs in regard to your duties
to the Railroad Company. Inasmuch as the Rail-
road Company pay a portion of your salary, you
are just as much an employe of the railroad on
which you run as you are of the Express Company, ©
and you must be just as careful of their interests
as you are of this company, and perform your
duties to that company, as near as possible, in the
same manner that they would be performed by
exclusive baggagemen.’’
—~ 199 —
¥.
The Supreme Court of the United States has defi-
nitely decided that this action must be brought by the
personal representative, and not by the beneficiary,
which decision is controlling upon this Court, and was
not called to the attention of this Court either in the
brief or oral argument, for the reason that the deci-
sion was rendered on the 13th day of May, 1912, sub-
sequent to the time that the briefs were filed in this
cause, and only a few days before the oral argument
herein, which was on the 20th day of May, 1912, and at
the time of that oral argument, counsel for plaintiff
in error had not been apprised of this decision, which
is American Railway Company against Birch, reported
in Supreme Court Reporter (West publication), Vol.
XXXII, at page 603 (224 U. S. 547).
VI.
That this Honorable Court seems to have misunder-
stood the instruction given and excepted to as to the
measure of damages, and, in the opinion, holding that
the instruction given by the Court on that question
excluded all elements except those enumerated therein,
is an oversight, in that said instruction does not ex-
elude aiiy elements, but simply calls to the attention
of the jury certain matters it may consider. This is
not within the rule that all things not enumerated are
excluded.
VIL.
That under the Act of Congress, which applies to
this case, it was error to instruct the jury that three-
fourths of their number could return a verdict.
— 200 —
L
, This Court in its opinion and judgment herein mis-
* understood the pleadings. ; :
The defendant in error sought to justify the pres-
ence of the deceased upon the train at the time of the
injury by alleging in her petition that the plaintiff in
error was engaged as a common carrier in carrying
express, freight and passengers, the particular allega-
tions being as follows:
‘¢ And as such, during all of said times, has been
engaged in the railroad business in the States of
Kansas and Oklahoma, and elsewhere, as a com-
mon carrier of freight, express and passengers for
hire.’’ (Par. 1, Petition, C.-m., p. 2.)
“That during all the time mentioned said de-
fendant corporation, as a part of its said railroad
business, owned, and was engaged in operating a
certain line of railroad extending from St. Louis,
Missouri, southerly to Parsons, Kansas, and thence
from Parsons, Kansas, southerly to the stations of
Verdark and Muskogee, in the State of Oklahoma,
to points in the State of Texas, over which line of
railway said defendant, during all the times herein
mentioned, was actually engaged in carrying and
transporting freight, express and passengers for
hire by trains of cars drawn by steam locomotives
by it owned, operated and maintained; that said
line of railroad consisted of what is known as sin-
gle track line, and was, and is, of the usual form
of construction, and by said defendant owned and
maintained.’’ (Par. 2, Petition, C.-m., pp. 2 and 3.)
‘«That at and prior to the time and death of said
William B. West, deceased, he was employed by
the American Express Company as express mes-
senger upon the express cars operated by said de-
fendant company over its said line or railroad be-
ery
— 201 —
tween said City of Parsons, Kansas, through the
State of Oklahoma to points beyond in the State
of Texas; that in addition to his duty and employ-
ment as express messenger, as aforesaid, this said
William B. West also engaged in handling passen-
ger baggage upon the express cars of said defend-
ant company” (Par. 5, Petition, C.-m., pp. 3 and 4).
‘“‘That on May 15th, 1908, at about 12 o’clock
noon of said day, said William B. West, in the
course of his employment as hereinbefore set out,
was riding in one of the express cars of said de-
fendant company attached to one of the regular
trains of said defendant company over said rail-
road line in a southerly direction in the State of
Oklahoma, which train was one of the regular
passenger trains of said defendant known as ‘No.
5’ and also known as the ‘Katy Flyer,’ and that
when said train reached the point in said State
of Oklahoma a short distance southerly of the Ar-
kansas River, between the said stations of Verdark
and Muskogee, in said State of Oklahoma, said
train upon which the said William B. West was so
riding, in the performance of his duties as afore-
said, was, by said defendant railroad corporation,
through gross carelessness and negligence upon
its part, ete. * * *’’ (Par. 6, Petition, C.-m.,
p. 4).
These allegations are the only statements contained
in the petition that attempt to throw any light upon the
right of the deceased to be upon the train at the time
of the accident.
A demurrer was filed to this petition by this plaintiff
in error, and the court overruled the demurrer upon
the theory of the defendant in error, which was that
the allegations above stated were sufficient to charge
- that the deceased was in the employ of this plaintiff
— 202 —
in error, and, therefore, thus showed the right of the
deceased to be upon the train at the time of the acci-
dent.
The Court overruled the demurrer upon that theory,
as no other possible theory could be advanced for over-
ruling the demurrer to the petition, as the petition did
not charge that the American Express Company had
any contract with this plaintiff in error, or any other
person, to handle the express, and it is not charged that
the American Express Company is engaged in handling
express. The only inference to be drawn from these
allegations is that the deceased was employed by the
American Express Company as express messenger and
baggageman for the plaintiff in error.
“Tf this is not true, then the deceased was a trespasser
and the petition would wholly fail to state a cause of
action.
This Honorable Court, on page 9 of the opinion,
states:
“Tt is insisted that the intestate was not in the
employ of the plaintiff in error, but in that of the
American Express Company. Under the issues as
framed said intestate was an employe of the ex-
press company and not of the railway company.”’
Neither the answer of the plaintiff in error, the reply
of the defendant in error nor the rejoinder in any wise
affects the allegation contained in the plaintiff’s pe-
tition.
— 203 —
IL.
This court in its opinion and judgment herein mis-
understood the evidence.
At page 14 of the opinion of the court, it is said:
‘Under the undisputed evidence in the record, —
the American Express Company paid the intestate
his salary, the railway company paying the ex-
press company for the handling of baggage.’’
It is submitted that this statement as to the manner
of the payment of salary to West is not fairly borne
out by the record, and does not accurately reflect the
testimony upon this proposition. The record can bear
no other construction than that the railway company
paid one-half of West’s salary, and did not pay the
express company for handling of baggage, as stated
in the opinion.
Beginning at page 172 of the record, Mr. F. D.
Adams, General Superintendent of the Southern Divi-
sion of the American Express Company, stated that
the deceased, at the time of his death, was a joint mes-
senger and baggageman, and worked for both the ex-
press company and the plaintiff in error. Portions of
his testimony were quoted in the reply brief of the
plaintiff in error, at pages 32 to 35. It is not deemed
necessary to again quote this testimony, but the atten-
tion of the court is respectfully directed thereto, be-
cause it shows conclusively that West was an employe
of the railway company. The testimony of Mr. Adams
is direct, positive, unequivocal and uncontradicted upon
this proposition, and his language with reference to
the payment of salary, which is misunderstood by this
court, is as follows:
— 204 —
‘¢Q. Do you know what proportion of his salary
was paid by those companies (the express com-
pany and the railway company) or whether it was
paid in any proportion?
‘A. Equal proportion’’ (Ree., p. 173).
and upon cross-examination Mr. Adams said:
‘*Q. Who paid West?
‘A. He drew his money from the express com-
pany.
“*Q. All of his salary came from the express
company ?
‘A. Yes, sir.
‘“*Q. And for any work he done for them in
handling baggage, the railroad company would
pay over to the express company?
‘A, They paid us one-half of his salary; we
drew a bill against them in his name and the other
baggagemen”’ (Rec., pp. 177-8).
It was further shown by the testimony and conceded
by counsel for defendant in error, that the deceased
handled baggage for the plaintiff in error, as its bag-
gageman, as a joint employe of the two companies.
The record is as follows:
‘‘Mr. Allen: We offer to show by Mr. Adams
that at the time Mr. West went into the service
as messenger, he understood that it was his
(West’s) duties to perform joint services for the
railway company and the express company.
‘‘Mr. Taylor: Further than the matters offered
to be shown and I admitted by the pleadings, we
object to the offer as incompetent, irrelevant and
immaterial’’ (Ree., p. 176).
This testimony of Mr. Adams’ that West was the
joint employe of the railway company and the express
— 205 —
company presented an issue and there was no evidence
to dispute it.
The Court further misapprehended the evidence in
the case on the questions of the release contracts offered
in evidence and excluded. Objection was made to the
introduction of them because under the law of the State
of Kansas they were void, but there is no evidence in
the case proving, or tending to prove, that the con-
tracts, or any of them, were executed in the State of
Kansas. Where the contracts, or any of them, were
entered into is not shown, and this court in its opinion
seems to assume that the evidence shows that the con-
tracts were made in the State of Kansas and that the
decisions of the Supreme Court of Kansas are con-
trolling. ‘
This court further assumes that the deceased was
riding on a free pass at the time of the injury, and .
was a passenger upon the train at that time and could
not waive his rights against the negligence of the
plaintiff in error but there is no evidence whatever
to establish the fact that West was riding upon a free
pass. On the contrary, the evidence does establish
that he was riding as a joint employe of the plaintiff
in error and the express company, and, therefore, as
far as this plaintiff in error is concerned, he did not in
any respect bear the relation of a passenger, and the
law as to the duties which the plaintiff in error might
owe to a passenger has no application to this case.
This case does not call for an opinion upon the du-
ties which the plaintiff in error might owe to a pas-
senger. Such a question was not presented by the
pleadings, nor in the evidence, nor in the brief of coun-
sel, and the court in discussing this proposition in con-
— 206 —
nection with this case has clearly misapprehended the
evidence as contained in the record.
Ii.
This cause was tried on the theory that the issue
was made by the pleadings that the deceased, W. B.
West, was an employe of the plaintiff in error, railway
company, and that the evidence at the trial showed
that he was such an employe, and under decisions con-
trolling upon this court, to which the attention of this
court was not called either in the brief or oral arcu-
_ ment, this case must be decided by this court upon that
theory.
This court holds that the Federal Emplovers’ Lia-
bility Act of April 22nd, 1908, 38 U.S. Stat. at L., at
page 65, does not apply to this case and that the plead-
ings were not so framed as to present the issue whether
the deceased was an employe of the railway company
or the express company.
Page ten of the opinion of the court contains ex-
tracts from the petition and the third amended answer.
The court holds that this third amended answer does
not present the issue. It is submitted that in this the
court has erred, but the point to which the court’s at-
tention is directed in this petition, and which was not
considered in the opinion, is that this case was tried
upon the theory that the issue was clearly defined by
these pleadings. Counsel for the defendant in error
understood that the issue was presented by the plead-
ings and proceeded throughout the trial as though it
were presented. Counsel for plaintiff in error under-
stood that the issue was presented and introduced tes-
timony that the deceased was an emplove of the rail-
— 207 —
way company and tried the case throughout upon that
theory and the trial court construed the pleadings to
present that issue, and directed the course of the trial
upon that theory, and that theory controlled its action
at the trial, its rulings with reference to the admissi-
bility of evidence, and the giving and refusing of in-
structions.
It is the law that when a case is tried as though an
issue were presented, whether or not there is a word
in the pleadings to justify the presumption, the appel-
late court in reviewing the case will consider it as
though the issue were definitely defined by the plead-
ings.
It is a well-accepted doctrine and fully recognized .
by this court in previous decisions controlling upon
this court, that a litigant cannot depart upon appeal
from the theory of his case which he adopted in the
trial court. This doctrine has been expressly an-
nounced by the Supreme Court of the Territory of Ok-
lahoma in Morrison v. Atkinson, 16 Okla. 571, 85 Pac.
472, which decision is controlling upon this court. The
svllabus written by the court, reads as follows:
‘Where a party assumes a certain position in a
legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply be-
cause his interests have changed, assume a con-
trary position, especially if it be to the prejudice
of the party who has acquiesced in the position
formerly taken by him. Hence, where a party
assumes a position and asserts a legal right in the
District Court, and there asks the benefit of that
position, he is estopped from denying the legality
of that position on appeal to the Supreme Court.’’
In the body of the opinion it is said:
— 208 —
‘*Now when they asked the court to enforce that
rule, they in effect said that the rule was a valid
one, and that they desired the benefit of it. The
matter was tried in the court below on the theory
that rule 19 should be enforced. The only ques-
tion for the court to determine was, who was in
default according to the terms of that rule. The
determination of the court was unquestionably
correct if the rule was a valid one; and, according
to the doctrine laid down by the Minnesota Su-
preme Court in the case of Davis v. Jacoby, they
cannot be heard to complain that the rule invoked
was erroneous, if the result be correct according
to the theory they adopted. In other words, coun-
sel for defendant below, in their motion for judg-
ment, alleged that said rule 19 was legal. and
pleaded that they had complied therewith. and that
plaintiff below had failed to comply with the re-
quirements thereof, and for that reason they asked
that judgment be entered in said cause in favor
of said defendant. Hence it is evident that the
position now taken by counsel for said defendant
is inconsistent with the position which they oceu-
pied when they filed and urged said motion for
judgment for non-compliance with said rule 19.’’
The Supreme Court of the State of Kansas prior to
the time that the Kansas Code was adopted in Okla-
homa, held that where a case was tried as was the case
at bar, upon the assumption that an issue was pre-
sented, that the appellate court will not take a contrary
position, but will construe the pleadings as the same
were construed by the parties in the trial court. In
Bent v. Philbrick, 16 Kan. 199, cited in 1876, it is held
that where a record fails to contain any reply to an an-
swer alleging new matter, but the case was tried by
both parties without any objection on aceount of the
a. | | pe
want of a reply, and as though a reply had been filed,
that the Supreme Court will treat the case in the same
way. In the opinion of the court it is said:
‘‘As no reply appears in the record, it would
seem as though there were nothing to try and
that the court, upon the pleadings, should have
entered judgment for the $500.00 and twelve per
cent interest. But the case was tried by both par-
ties as though the allegations of new matter in
the answer was denied; and we shall take the case
upon that basis, as in our judgment, upon that
basis, there was such error as requires a reversa gs
In Holden v. Clark, decided by the Supreme Court
of Kansas (1876), 16 Kan. 346, 347, it is said:
‘‘Counsel for defendants in error raises the
question that the plaintiff’s reply was not verified
by an affidavit. and therefore that it did not put
in issue some of the allegations of the defendant’s
answer. The case was tried, however, in the court
helow. in the same manner as though it was con-
sidered by all the parties that the reply was suffi-
cient, and therefore, this court will now treat the
case in the same way.’’
In Herbert v. Wage, 27 Okla. 674, decided by this
court, this doctrine is succinctly stated in the syllabus
which was prepared by the court, as follows:
‘¢A party bringing an action is required to frame
his pleading in accord with some definite, certain
theory, and the relief to which he claims to be en-
titled must be in accord therewith; on appeal he is
bound by the position and theory assumed and on
which the case was heard in the trial court.”’
Peete ate ee
In M.,, K. & T. Ry. Co. v. Wilhoit, Cirenit Court of
= Sia te
us
ere
ess
ter
nie oe RLS
Se Sages Z
aT ee
Appeals, Eighth Cireuit, 160 Fed. 440, it was contended
in that court that the doctrine of assumption of risk
could not be invoked because the issue was not raised
by the pleadings. Mr. Justice Van Devanter, then
Circuit Judge, delivering the opinion of the court, said:
‘“*The Court of Appeals was of opinion that this
defense was not available to the defendant because
it was not affirmatively pleaded in the answer.
But the question of pleadings thus suggested was
not raised upon the trial. On the contrary, as the
record discloses, each of the parties, without ob-
jection from the other, introduced testimony ad-
dressed to the question of the plaintiff’s assump-
tion of risk, both presented requests for instrue-
tions bearing thereon, and the court charged the
jury upon that subject. We must, therefore, give
effect to the settled rule, that when the parties,
with the assent of court, unite in trying a ease on
the theory that a particular matter is within the
issues, they will not be permitted to depart there-
from when the ease is brought before an appellate
court for review’’ (citing a large number of eases).
Tn New York, L. E. & W. R. Co. v. Estill, 147 U.S.
591, 37 L.. Ed. 292, it is said:
‘As to paragraph 3 in brackets, it is contended
by the defendant that the court should have di
rected the jury that the value of the cattle when de
livered at the western terminus of the railroad of
the defendant, in Ohio, and not their value at the
final destination of the cattle in Saline County and
Howard County, Missouri, should be the basis on
which to estimate the damages. But it does not ap
pear that any such elaim was made in the court
helow. Both parties introduced their evidence and
tried the eases on the theory that the value of the
. — Ai aoa ——
FE REN SETI PIER PPLE! TI HEMET POR ENR NONE UA IT NE TM ERTS Be VE i
— 211—
eattle in Saline and Howard Counties was the
proper basis for fixing the damages.”’
It is clear that counsel for defendant in error under-
stood the allegations of the answer above referred to,
charged that West was an employe of the railway com-
pany, because in reply to that answer, they specifically
alleged and made a_ part of their reply, and quoted
therein a statute in Kansas making railway companies
liable to employes for damages, in consequence of any
negligence on the part of the railway company, or its
employes (Ree., pp. 85-87). This statute, as quoted
from the reply, reads as follows:
‘‘Bvery railroad company organized and doing
business in the State of Kansas shall be liable for
all damages done to any employe of said company
in consequence of any negligence of its agents, or
by any mismanagement of its engineers, or other
employes, to any person sustaining such damage;
provided, that notice in writing that an injury has
been sustained, stating the time and place thereof,
shall have been given by or on behalf of the person
injured to such railroad company within eight
months after the oceurrence of the injury.’’
In view of this express allegation of the reply, it is
evident that counsel for defendant in error thoroughly
understood the answer to present the issue that West
was an employe of the railway company, and they
sought to meet it by confessing that fact and seeking
to avoid its effect by virtue of the provisions of the
statute. These allegations of the reply cannot be any-
thing else but an express admission that West was an
employe of the railway company. If it were necessary
for any stronger evidence of the fact that the issue was
viene taal oe .
PFS TAT AS RIPEN, ABET SET ERI ANY AMT PAYA Lo CLARA AED NOC RNR PENN t
eT sis
joined, it is clear from the further conduct of counsel
for defendant in error in relying upon the three Kan-
sas cases, Sewell v. A., T. & S. F. Ry. Co., 96 Pac. 107;
A., T. & 8. F. Ry. Co. v. Fronk, 74 Kan. 915, 18 Pac.
968; Kan. Pac. Ry. Co. v. Peavey, 29 Kan. 169, 44 Am.
State Rep. 630, sustaining judgments for damages in
favor of the railway employes, to show that the statute
in question was applicable to this case. Their conduct
in this particular thus constituted a further express
admission that West was an employe of the railway
company.
The trial court construed the pleadings to present
the issue. This is evident from the fact that when
counsel for plaintiff in error introduced proof of the
relationship which West bore to the railway company,
and counsel for defendant in error made an objection,
the court called their attention to the fact that they
had pleaded that West handled the baggage for the
railway company. he record as to these proceedings
is as follows:
**Q. At that time do you know what relation ex-
isted between Mr. West and the M., K. & T. Rail-
road Company with reference to handling baggage
of that company?
‘*A. Yes, sir.
**Q. What was that relation, Mr. Adams?
‘‘Mr. Taylor: I would like to ask first if there
was anything in writing, any written agreement?
**By the Court: Don’t vou plead, Mr. Tavlor,
he also handled passenger baggage?
‘‘Mr. Taylor: Yes, sir; we plead it’’ (Ree., pp.
172-3).
Thereupon the witness was permitted by the court
to testify that West was an employe of both companies,
a é ERR NS PES PN : J er IE ee
— 213 —
and was paid his salary in equal proportion by both
companies. The testimony of this witness, Mr. F. D.
Adams, General Superintendent of the Southern Divi-
sion of the American Express Company, upon this prop-
_ osition, is quoted at pages 32 to 35 of the reply brief
of plaintiff in error. This<testimony is positive that
West was a joint employe of both companies. The trial
court should not have admitted this testimony had it
been of the opinion that the pleadings did not require
it to do so.
As further proof of the construction which the trial
court placed upon these pleadings, it overruled an ob-
jection of counsel for defendant in error to an offer of
counsel for plaintiff in error, to prove by Mr. Adams
that West understood that he was to perform joint
service for the railway company and the express com-
pany and permitted proof of this character to go to the
jury. The record is as follows:
‘Mr. Allen: We offer to show by Mr. Adams
that at the time Mr. West went into the service as
messenger he understood that it was his (West’s)
duty to perform joint services for the railway com-
pany and the express company.
‘‘Mr. Taylor: Further than the matters offered
to be shown and IT admitted by the pleadings, we
object to the offer as incompetent, irrelevant and
immaterial.
‘“By the Court: T think I will let him answer the
question; objection overruled.
‘“‘Mr. Taylor: The plaintiff excepts”’ (Ree., p.
176).
If the court had been of the opinion that the issue
was not joined, it undoubtedly would not have per-
mitted this testimony to go to the jury.
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214 —
The court further permitted the plaintiff in error to
introduce testimony, as heretofore shown, that the rail-
way company paid one-half of the salary of the de-
ceased, and thy purpose for which this testimony was
offered was fated by counsel for plaintiff in error, at
Ree... p Pid as follows
‘Mr Ralls: We offer this for the purpose of
showing that the deceased was a joint employe
of the American Express Company and the M., K.
& T. Railroad Company, while he was running as
messenger on the line.’’
The court, with the full understanding of the purpose
of this testimony, admitted it over the objection of
counsel for defendant in error, and there certainly was
not the slightest misunderstanding on the part of the
court, or of any one connected with this case, that this
issue was clearly and distinctly drawn, and it is mani-
fest that the case was tried throughout on the theory
that there was such an issue to be determined.
As further proof of the fact that this case was tried
upon the theory that West was an employe of the rail-
way company, it will be noted that it never occurred
to counsel for defendant in error that such was not the
theory of the case until it was suggested by a member
of this court at the oral argument, that possibly the
pleadings did not raise the issue. Counsel for defend-
ant in error then seized upon the point and urged it
as best they could at the oral argument and later filed
a typewritten brief in answer to the reply brief of the
plaintiff in error, where this point is enlarged upon. It
is respectfully submitted that this court, even if there
had been any merit in this point, should not have con-
sidered same, because it was not within the theory of
— 215 —
the case, nor within the propositions urged by counsel
for defendant in error upon the appeal of this case.
This circumstance of counsel for defendant in error is
proof conelusive that all parties to this suit understood
that the question of West’s employment with the rail-
way company was a provable fact under the issues in
this case.
IV.
The plaintiff in error did not waive its exceptions
to the action of the trial court in sustaining the objec-
tions of the defendant in error to the evidence offered
by the plaintiff in error and made a proper offer for
the introduction in evidence of the contract between
the express company and the plaintiif in error.
The original brief on the part of the plaintiff in error
was written upon the theory that West was a joint
employe of the railway company and the express com-
pany, and the record fully bears out that fact. The
evidence offered by the plaintiff in error, and which
was excluded by the trial court, and which this court
holds was not properly presented to it under its rules
for review, was corroborative of evidence of the plaint-
iff in error establishing that the deceased was an em-
ploye of the plaintiff in error, and the parties, by their
pleadings and in the trial of the case, assumed as an
established fact that West, at the time of the accident,
was an employe of the plaintiff in error, and by rea-
son of being such an employe had the right to be upon
the train at the time of the injury. The evidence re-
ferred to by the Supreme Court is a written communi-
eation dated July 21, 1897, transmitted by F. D. Ad-
ams, as General Superintendent of the American Ex-
press Company. te the said West, reminding him that
SA RRR py ENO Ma Sach NAT EASE OH FATE ae oh the
i At Ps ne a SRN EERE | ELON FTE EE of
— 216 —
he was an employe of the plaintiff in error as well as
the American Express Company in the performance of
the duties which were the identical duties referred to
in the defendant in error’s petition in this cause, and
which written communication, so far as applicable to
the question under consideration, is as follows:
‘‘In some instances I find there has been con-
siderable controversy between messengers ani
train crews on joint runs in regard to vour duties
to the railroad company. Inasmuch as the railroad
company pay a portion of your salary vou are just
as much an employe of the railroad on which vou
run as you are of the express company, and vou
must be just as careful of their interests as vou
are of this company, and perform your duties to
that company, as near as possible, in the same
manner that they would be performed by exelu-
sive baggagemen.’’
This fact as to the employment of Wes
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