4 F. Supp. 657 | D. Idaho | 1933
The plaintiffs bring this action against the Oregon Short Line Railway Company and Wm. E. Clinkingbeard, an engineer of the company, to recover for injuries alleged to the plaintiff E. S. Judd, Jr., and on account of the death of a minor child of the plaintiffs arising in connection with a railroad crossing collision between a locomotive of the company and an automobile driven by the plaintiff E. S. Judd, Jr.
The defendant company removed the case to this court as a citizen of Utah upon the ground that there is a separable controversy between it and the plaintiffs, and contends that the complaint fails to state a cause of action against the resident defendant, as no breach of duty owing from him to the plaintiffs Judd appears, and that the complaint discloses that the plaintiff Judd was guilty of negligence which bars a recovery.
The test of such controversy is, where there is no charge of fraudulent joinder made, whether the cause of action is a joint one in character. If there is a joint liability of the defendants disclosed by the complaint and one of the defendants is a resident, the ease is not removable to the federal court. To determine that question on the record resort must' be made to the complaint, and should it appear “that an action brought in á State court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a Federal court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature of the controversy in the absence of a showing that One of the defendants was fraudulently joined for the purpose of preventing the removal. Louisville & Nashville Railroad v. Wangelin, 132 U. S. 599, 601, 10 S. Ct. 203, 33 L. Ed. 473; Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 97, 18 S. Ct. 264, 42 L. Ed. 673; Alabama Great Southern Railway v. Thomp
The inquiry then is on a petition for removal. Do the facts thus stated present a ease of joint liability arising from concurrent acts of negligence on the part of the defendants and co-operating to cause the injuries as a matter of state law, for on the question of removal the federal courts will not consider “more than whether there was a real intention to get a joint judgment,.and whether there was a colorable ground for it shown as the record stood when the removal was denied. We are not to decide whether a flaw could be picked in the declaration on special demurrer.” Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 194, 33 S. Ct. 250, 251, 57 L. Ed. 473. It is charged in the complaint as an act of negligence that the defendants, when approaching the crossing where the accident occurred, neglected to comply with a provision of the state statute requiring a bell to be rung or whistle sounded at a distance of 80 rods from where the railroad crosses the road - at the crossing. See section 60-412, I. C. A. A failure to ring bell or sound whistle constitutes negligence per se. Smith v. Oregon Short Line R. Co., 32 Idaho, 695, 187 P. 539; Graves v. Northern Pac. R. Co., 30 Idaho, 542, 166 P. 571. Also a violation of section 17-2716, I. C. A., which provides that every engineer having charge of any railroad locomotive, who negligently suffers or causes the same to collide with an object or thing whereby the death of a human being is produced, becomes criminally liable. And further under the state law we find that the master and servant are jointly liable for the negligent acts of the servant acting within the scope of his employment and in the course of his duties. Wallace v. Hartford Fire Insurance Company, a Corporation, and Lee A. Strickfadden, 31 Idaho, 481, 174 P. 1009. It may be that a federal court would not hold that the action is joint if the matter were presented in a case of which it has jurisdiction. “But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged'joint cause of action into a separable controversy for the purpose of removal.” Alabama Great Southern Railway Company v. Thompson, 200 U. S. 206, 218, 26 S. Ct. 161, 165, 50 L. Ed. 441, 4 Ann. Cas. 1147.
It is further suggested that as the complaint does not state a cause of action against the resident defendant there remains a separable controversy. But we must not overlook the rule recognized on a removal of a cause from a state court to the federal court, that it does not depend upon what issue remains to be tried, but must be determined by the nature of the cause of action set forth in the complaint. Adams v. Tolerton (D. C.) 22 F.(2d) 863.
Whether Judd when operating his automobile upon the railroad track was in plain view of an approaching train that could have been seen under the facts alleged in the complaint, and is guilty of contributory negligence which bars recovery under the case of Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645, and other decisions following the Goodman Case, would seem to be a question to be determined under the evidence to be presented after considering the language used in the complaint and not a question to be determined on a petition for removal.
The motion to remand is granted.