Kansas City Southern Railway Co. v. McGinty , 76 Ark. 356 ( 1905 )

Battue, J.,

(after stating the facts.) The appellant has abandoned the first ground for removal set out in its petition. He has no right to removal on the second ground. Dick v. Poraker, 155 U. S. 404, cited by him to sustain his petition as to the second ground, does not apply. That was a suit in equity brought by a citizen of Ohio against a citizen of Illinois in the circuit court of the United States for the Eastern District of Arkansas, to remove the cloud from a title of real estate situated in that district. The jurisdiction was sustained upon the ground that the suit was local, and had to be brought in the district where the real estate is situated. That is not the case in the action before us. It is transitory. And there is not that diversity of the citizenship of the parties that is necessary to give the United States Circuit Court jurisdiction in such actions; “a citizen of one of the territories of the United States” not being “a citizen of a State, within the meaning of the Constitution and judiciary acts.” Hooe v. Jamison, 166 U. S. 395; Mansfield, Coldwater & L. M. Ry. Co. v. Swann, 111 U. S. 379; Snead v. Sellers, 66 Fed. 37.

The amended petition for removal was filed too late, it being filed after the time allowed by the statutes of this State for the filing of answers to complaints. Kansas City, Fort Scott & Memphis Railroad Co. v. Daughtry, 138 U. S. 298.

The instructions of the court, and the remarks of counsel, which we have copied herein, are erroneous and prejudicial. “It is well settled that one who is injured by the mere negligence of another cannot recover at law or in equity any compensation for the injury if he, by his own * * * negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him; except where the direct cause of his injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” This rule applies to passengers as well as to other persons. Little Rock & Fort Smith Railway Company v. Miles, 40 Ark. 298; Fordyce v. Merrill, 49 Ark. 277; Little Rock & Fort Smith Railway Co. v. Cavenesse, 48 Ark. 106; Little Rock & Fort Smith Railway Co. v. Pankhurst, 36 Ark. 371; St. Louis, Iron Mountain & Southern Railway Co. v. Martin, 61 Ark. 549.

This court has held that it applies and is in force in cases where the employees of a railroad are required by statute to keep a lookout, and when obedience to the statute would have avoided the result of the contributory negligence. St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis Southwestern Ry. Co. v. Dingman, 62 Ark. 245; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364.

In Little Rock Traction & Electric Company v. Kimbro, 75 Ark. 211, this court held that conductor on a street railway, seeing the acts of a passenger on the street car, would not be in duty bound to interfere to protect him, unless he could have reasonably anticipated that he would be injured without such interference. He was not bound to do a useless act, or to interfere unnecessarily with the freedom of the passenger. No such rule was embodied in the instructions of the court, and the remarks of counsel. The facts and principles involved in the two cases are different.

Reversed and rerhanded for new trial.

Hiix, C. J., being disqualified, did not participate.