147 Ky. 315 | Ky. Ct. App. | 1912
Opinion of the Court by
Beversing.
This 'action was instituted for John L. DeAtley by his guardian against appellee, under an act of Congress relating to the liability of common carriers by railroad to their employees in certain actions, which was approved by Congress April 22, 1908. It was alleged, in substance, that DeAtley was inexperienced and ignorant as to the dangers incident to acting as brakeman on a freight train, at the time he entered the employ of appellee; that appellee, its agents and servants, placed him in that position and negligently failed to instruct him with reference thereto; that appellee negligently and carelessly failed and refused to adopt or promulgate or bring to DeAtley’s knowledge any definite or adequate rules for the safety of its employees, either prior to his employment, at the time thereof or thereafter up to the time of his injury; that at the time of his injury and a long time prior thereto, appellee,
Appellee filed its petition for a removal of the action to the United States Circuit Court, alleging diverse citizenship. Appellant demurred to the petition for removal, but the court overruled it, approved the bond presented by appellee and made an order for a removal of the action, and appellant appeals from that order.
Appellant contends that the lower court erred in removing the action, as it was brought under the act of Congress referred to, which expressly states that no removal can be had from a State court in such a case. Appellee contends that it is true appellant alleged in the petition that the action was brought by virtue of the act of Congress, but claims that the allegations of the petition in regard to the failure to establish and promulgate" rules for the safety of its employees and the failure to instruct him in regard thereto, were acts of the appellee
“Under this act .an action may be brought in a Circuit Court of the United States, in the district of the residence of the defendant, or in which the causes of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under 'this act shall be concurrent with that of the courts of the several States, and no cause arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States.”
This section, by positive language, gives the Circuit Courts of the United States and the courts of the several States concurrent jurisdiction of such actions, and, by what is generally known as the “Paynter Amendment” which is attached to the latter part of this section, no cause arising under this act and brought in a State court of competent jurisdiction can be removed to any court of the United States. This amendment, by equally positive language, prohibited the removal of such an action from a Circuit Court of the State, because that court had jurisdiction of the action.
The only other question is: Did the allegations of the petition bring the case of appellant under the act as amended? 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 co-employee or fellow servant, and for other causes not necessary to mention here. Appellant was clearly a co-employee 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, and if the negligent act of the engineer was the
For these reasons, the judgment of the lower court is reversed and the cause remanded with directions to the lower court to proceed with the trial of the case.