88 Tenn. 710 | Tenn. | 1890
Lead Opinion
The action is to recover damages of the Chesapeake, Ohio and South-western Railroad Company and the Newport News and Mississippi Yalley Railway Company for the killing of J. C. Hendricks on December 12, 1887.
The first assignment of error is upon the refusal of the Circuit Court to transfer the cause to the Hnited States Circuit Court.
The grounds of 'the petition are that petitioner, at and before the commencement of suit, was and is now a citizen of Connecticut, and that Hendricks, administrator, was and still is a citizen of Tennessee; that the controversy is wholly between the petitioner, Newport News and Mississippi Yalley Company, and the plaintiff, citizens of different States; that the Chesapeake, Ohio and Southwestern Railroad Company is neither a necessary or proper party to this suit; that plaintiff has joined said railroad company as a defendant simply for the purpose of endeavoring to defeat petitioner’s right of removal; that the cause of plaintiff is a fraudulent, unjust, and illegal attempt to deprive said Hnited States Court of its lawful jurisdiction, as well as a fraud on petitioner’s right, etc.; that in 1888 plaintiff commenced his suit against the defendants for the same matters and
The petition was answered with a definite denial of all fraud, of any admission or confession that the petitioner was alone liable, and insisting that both corporations were jointly and severally liable. The prayer of the petition was refused.
It is here insisted: “The sole question upon the petition for the State Court to determine was whether, upon the face of the petition, a good cause for removal was made. If so, then the re
While in the case before us there is an allegation of fraud, which is denied, there was no proof offered to sustain it. The condition of the record in the State Court at the time of filing the petition was not such as to warrant a removal. Trying the question by the face of the record, the jurisdiction of the State Court was exclusive. That condition is sought to be changed by the unsworn petition of the defendant below, who moves for a removal upon extraneous allegations without proof.
In Stone v. South Carolina, 117 U. S. R., 432,
In this case no application was made to the Federal Court, and of course that Court could not settle the question. The Federal question of removal was presented to the State Court, and before that Court could be authorized to order the removal it was its duty to ascertain and determine that “a case has been made which, on its face, shows that the petitioner has a right to the transfer,” and “was not bound to surrender its jurisdiction ” before.
We are unable to agree with counsel for the petitioner that the language of the Supreme Court in construing the statutes of removal, means that a- petition like the present, without more, ousts the State Court of its jurisdiction, and transfers it to the Federal Court.
This may be so when the petition and bond
"When the Supreme Court says the petitioner must make a case for removal it means he must make it under the statute, and to the satisfaction of that Court to which he makes the application, and not that he can by piecemeal try the question in the two Courts. If the contention is sound, we will have the anomaly of a cause removed from the State Court and suspended until the Federal Court can pass upon the merits of the application, the parties, in the meantime, not knowing where the cause pends, and neither Court knowing which has jurisdiction.
Since this opinion was filed it has been suggested that under the Act of Congress of 1887 the application for removal can be made only in the State Court. If this were so, it affords a stronger reason that that Court must pass upon the sufficiency of the grounds laid for removal.
A case must be made for 'removal and made to
Under the rule in this State, there is nothing in the allegation that the dismissal of the former •suit as to one of the parties, was an admission that there was no cause of action against that party, as tort-feasors are jointly and severally liable.
The second assignment is that the verdict and judgment for fifteen thousand dollars are excessive. Deceased was postmaster and express agent at Trimble; on the Chesapeake, Ohio- ánd Southwestern Railroad. He was struck by an engine and train of one car and a freight caboose, running on the schedule of the regular passenger train, which carried the mail and express matter. The engine and train which did the killing was running ' ahead of the passenger-train, at a ■speed of thirty to forty miles per hour. The postmaster and express agent, passengers, and all persons having .business with trains, had’ to cross the track in front of them — a most dangerous and careless arrangement, one that must not be overlooked. There were standing cars, lumber, and other things calculated to obstruct the view. The. train made no cheek of speed, and the deceased, in attempting to cross, was struck by the engine, knocked forty-six feet against a bank, and rebounded to the cross-ties. He lived about forty-
It was supposed to be the- regular train, and that it would slow to about four miles per hour. No notice had been given of its approach except the signal whistles. It should have slowed down or stopped at the telegraph office for orders. That it was being run at a very high and dangerous speed, without proper and continuous signals, is conceded, and was running on the time of the regular passenger-train, which regularly slowed down in approaching, and stopped at said station, a village of about three hundred inhabitants.
Deceased was a careful, prudent man, and not careless about crossing tracks in front of trains; was about thirty-three years of age.
The facts do not make out a case for reversal for excessive damages. The conduct of the engineer, who is shown to be a fast runner, and had that day passed Dyersburg at the speed of sixty miles per hour, was reckless in the extreme. The throwing of the body forty-six feet with a rebound leaves no room to doubt the recklessness of the engineer, and his utter disregard of human life.
The several requests to charge were made before any charge was given; none of them were repeated afterward. Under the rule in this State it was not error to refuse to give them. Roller v. Bachman, 5 Lea, 159; Railroad v. Foster, ante, 671. Counsel should first hear the charge,
In this case a practice was adopted which we recommend to the profession, and one we would be glad to see adopted by it.
The bill of exceptions does not set out the testimony of each witness on either side, hut simply states that the proof for each tended to show certain facts. It is well done, of easy comprehension, and presents in a small compass what would otherwise have been a cumbersome record, and yet fully, pertinently, and distinctly raises' every question of law and fact.
On his motion for new trial the able counsel presented all his grounds in writing, thereby giving to the Court every opportunity to detect any error he may have committed. On the trial here only those grounds, more formally and fully drawn out, make up the assignments of error.
"We see no reason at present why Circuit Courts
There is no reversible error in the charge as given, and the- judgment is affirmed.
Rehearing
OPINION ON PETITION TO REHEAR.
In the opinion delivered on a former day of the term it is stated that the petition to remove the cause from the State to the Federal Court is not sworn to.
We are asked to rehear the case, that the record may be supplied to show the affidavit attached to the petition.
It is a settled rule of practice in this Court that suggestions of diminution and applications to supply must be made before the cause is called for trial, and, if not, all objection to the state of the record is waived.
The petition was a very material part of the record, the affidavit thereto (if one) a material part of it.
No suggestion of diminution or imperfection of record was made, and we hear of none until several days after the cause was decided.
The petition is dismissed.
