63 F. 177 | U.S. Circuit Court for the District of Northern Iowa | 1894
The questions arising upon the motion to remand this case to the state court, where it originated, grow out of the following facts: The plaintiff. George W. Fergason, on the 21st day of December, 1892, was in the employ of the Chicago, Milwaukee & St. Paul Railway Company, engaged in the business of switching in the yards of the company at Sioux City, Iowa. On the day named he was run over by a switch engine in the yard of the company, resulting in the loss of his leg. To recover damages for this injury he brought suit in the district court of Wood-bury county, Iowa, against the railway company, which action was removed into this court by the railway company, and on the 1st day of June, 1894, the case came on for trial before the court and jury. At the conclusion of .the plaintiff’s testimony the court intimated that his evidence showed that he himself was responsible for the accident, and thereupon the plaintiff dismissed the; action without prejudice, and then instituted the present suit in the district court of Woodbury county, naming as defendants (herein the railway company, John Smith, the engineer in charge of the engine, and D. W. Pollard, the yard master. The railway company thereupon filed a petition for the removal of the case into this court, upon the ground that it was a corporation created under the laws of the state of Wisconsin; that the plaintiff was a citizen of Iowa; that the suit was for $20,000; and that it involved a separable controversy existing between the plaintiff and the railway company, and hence was removable, even though the defendants Smith and Pollard were citizens of Iowa, and therefore cocitizens with plaintiff. The state court granted the order of removal, and, the transcript having been filed in this court, the plaintiff moves to remand on t:he ground that; this court is without jurisdiction.
The question to be determined is whether the petition sets forth a cause of action existing solely between the plaintiff and the rail