209 F. 949 | D. Idaho | 1913
The action was brought to recover damages for the death of Walter W. Richardson, who was killed on February 26, 1913, by an electric shock, received while he was employed as a painter upon the new power house of the Southern Idaho Water Power Company at American Falls, Idaho; it being alleged that the accident was due to the joint negligence of the several defendants. The plaintiffs, who are the heirs of the deceased, and' the defendant Day, are residents of the state of Idaho; the other defendants, four corporations, are nonresidents. The action was commenced in the state district court, and upon the petition of the defendant James A. Green & Co. it was removed here. Upon behalf of the removing defendant it is contended that the complaint exhibits a separable controversy between it and the plaintiffs, and it is further alleged that the defendant Day was fraudulently joined as a defendant for the purpose of defeating the jurisdiction of this court. The plaintiffs filed a reply to the petition for removal, traversing the averments of fraudulent joinder; but the issue thus presented was, at the hearing of the motion
It is shown by the complaint that the defendant Southern Idaho Water Power Company, being the owner of a power site at American Falls, employed the defendant James A. Green & Co. to construct a power house, and employed the General Electric Company to install therein the necessary machinery for generating and transmitting electric current. It does not appear very clearly'just what the relation of the defendant Eynch-Cannon Engineering Company was to the proj ect, but apparently it was associated in some manner with the General Electric Company in installing the machinery. The construction of the power house and the installation of the machinery were carried on concurrently, and, just prior to the accident, Richardson, who was in the employ of James A. Green & Co., was" directed by its superintendent, W. F. Day, to paint the roof on the higher portion of the power house. In order to reach this roof it was necessary for him, and he was directed by his employer, to pass over the roof of the lower section of the building, which latter roof was constructed of concrete, reinforced with steel. Coming from an existing generating plant belonging to the power company, and penetrating the roof, and connecting with the machinery inside, were three high-tension wires, over which the defendants, other than Green & Co. and Day, had caused a current of high voltage to be transmitted, for the purpose of testing out the new machinery. These wires were not insulated at the point where they passed through the roof of the power house, and as a consequence, it is claimed, the steel reinforcement of the concrete roof became charged, and when Richardson stepped upon it he received the fatal shock. It is averred that the roof was negligently constructed, and that the wires were negligently carried through the same without insulation, and that all of the' defendants knew, or by reasonable care should have known, of its dangerous condition, whereas Richardson was, without any want of care upon his part, ignorant thereof.
‘It is well settled that an action of tort which might baye been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one.” Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264,. 42 L. Ed. 673; Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Alabama Southern Ry. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Southern Ry. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528.
The power company was the proprietor of the premises upon which the deceased was employed, and, while it did not rest under the obligation of a master to provide safe appliances and a safe place to work, still the deceased was there by its invitation, either express or implied, and it owed to him a measure of duty in guarding him against the consequences of hidden dangers. Generally speaking, this obligation is doubtless analogous to that which a proprietor owes to a guest or other person coming upon his premises by invitation. 1 Thomp. Neg. § 680; Stevens v. United Gas Co., 73 N. H. 159, 60 Atl. 848, 70 L. R. A. 119; O’Driscoll v. Faxon, 156 Mass. 527, 31 N. E. 685. But it is. unnecessary to define to a nicety just what the power company’s obligation to Richardson was, or to hold that a cause of action has been stated against it with all the fullness that might be desired. It appears that in good faith the plaintiffs assert a claim against it, and that such claim is not without reasonable support, both in fact and law. It is exclusively for the court having jurisdiction of the cause to define with precision the extent of the defendant’s duty and to determine whether or not the facts stated constitute a violation thereof.
However, as I understand, the moving defendant does not seriously
“If the concurrent or successive negligence of two persons combined together results in an injury to a third person, he may recover damages of either or both.” 1 Thomp. Neg. § 75; 23 Cyc. 433; 29 Cyc. 487.
An illuminating discussion may be found in Graves v. City & Suburban Telegraph Association (C. C.) 132 Fed. 387. See, also, Goede v. City of Colorado Springs (D. C.) 200 Fed. 99; Railway Co. v. Martin, 178 U. S. 245, 20 Sup. Ct. 854, 44 L. Ed. 1055. To adopt the view contended for by the removing defendant would be equivalent to holding that there has been a misjoinder of parties defendant, and that, in order to recover from them, it would be necessary for the plaintiffs to bring a separate suit against each one. Such should not be the law. According to the showing made by the complaint, each contributed to the accident, the injury was single, and the damage claimed is indivisible and is the result of the concurrent co-operating negligence of all.
In that view it is thought that the motion to remand must be allowed. An order will be entered accordingly.