201 F. 591 | E.D. Ky. | 1912
This cause is before me on motion to remand. It -is a suit to recover damages for a personal injury. The plaintiff was a brakeman in defendant’s employ, and at work, as such, on one of its freight trains at the time of his injury. The injury was occasioned by his falling in an attempt to mount the train whilst in motion, and consisted in having his right foot cut off by one of its wheels. As it approached a tower from which written orders as to the operation of trains are issued, the plaintiff, by direction of the engineer, left the train to get an order, and it was on his return with the order that he was making the attempt to mount. At no time did the train stop to let him off or get on. It had been the practice for a year or more for brakemen to get written orders from the tower in this way; i. e., getting off and remounting whilst the train- was in motion as it passed the tower.
The negligence complained of was the failure on the part of the
The ground upon which removal was sought was diversity of citizenship. In determining whether the cause was removable, I will limit myself to the question whether its removal was forbidden by the amendment of 1910 to that act. It is claimed that it is not so forbidden for two reasons. One is that the case did not arise under the act. The other is that the removal was obtained, not on the ground that the case arose thereunder, but on the ground of diversity of citizenship. The claim that the case did 'not arise under that act is made in the face of the fact that it is alleged that the defendant is a common carrier engaged in interstate commerce, and that plaintiff was employed by it in such commerce, and the right to recover is expressly based on that act.
“Appellee’s counsel concede that the act and its amendment imposed a liability on the carrier for any injury caused by the negligence of a' coemployé or fellow servant, and for other causes, not necessary to mention here. Ap*594 pellant was clearly a coemployé of the engineer in charge of the train, and the act referred to makes the company liable for the negligence of the engineer that caused or produced the injury to appellant.”
Concerning the allegations of the petition and the effect thereof, he said this:
“It was also clearly charged that the engineer in charge upon the occasion of the injury directed De Atley to leave the train while it was running, and negligently failed to stop the train to allow him to get aboard in safety. If these acts were actually committed, and they must be so considered for the purpose of this action, they were certainly negligent acts of a coemployé of De Atley within the meaning of the act of Congress, and he was entitled to maintain his action in the state court.”
The petition alleges that the engineer failed to stop the train, and that he was negligent in so doing. It seems to me, also, that the allegations thereof should be construed to mean that he knew that plaintiff had gotten off the train and wanted to get back, and that whilst the train was in motion. It is alleged that the practice had been for a year or more for the servants superior in authority to the brakemen to require them to get on and off the trains for orders whilst it was in motion and without stopping, and that on this occasion the plaintiff was directed by the engineer when the train was approaching the tower to go forward to it and get orders, and that, whilst he was on the way from the tower pursuant to such direction with orders and was endeavoring to get on the train while in motion, he fell. It is not distinctly alleged that he got off the train pursuant to the direction, but that is necessarily to be inferred from the allegation as to the direction and the return pursuant thereto with the order. I think, also, that it follows from this allegation that he got off and on while the train was in motion pursuant to the engineer’s direction, and that he knew he did so. It was not essential to allege that the engineer owed a duty to the plaintiff to stop the train. The law imposed on him the duty of operating the train with due regard to the safety of the brakeman, and the allegation that he negligently failed to stop is an allegation that he failed to exercise such care. It seems to me, therefore, that the opinion of the Court of Appeals is sound. But, assuming that the petition failed to state a good cause of action on account of the engineer’s negligence, is it to be said that, because of this, the case did not arise under the act? Such.is the effect of defendant’s contention.
Then, how is it as to the negligence charged in failing to adopt and promulgate the rule referred to. The duty so to do was one of the nondelegable duties of the defendant as master. But it was a duty, as is the case with all its nondelegable duties, which it could not perform except through its officers, agents, and employes. Being a duty having relation to the operation of its trains, it is one that would be delegated to such of its officers, agents, and employ és as had to do with their operation, and hence were in position to determine what were proper rules to be adopted and promulgated. The failure to perform such duty according to the allegation of the petition was negligence on the part of such officers, agents, and employ és. As to such
The motion to remand is sustained.