135 Ga. 444 | Ga. | 1910
The plaintiff brought suit against the Southern Railway Company, one of its conductors, and one of its brakemen, for damages caused by the homicide of the son of the plaintiff, making, among others, substantially the following allegations: The deceased was employed by the railway company as a brakeman on one of its freight-trains; and while undertaking, in the discharge of his duty, to cross one of the company’s tracks, a train other than the one on which he was brakeman, while backing and running at a speed of 10 or 15 miles an hour, struck and killed him. Paragraphs 6, 7, and 8 of the petition are as follows: “(6) The hour at which this happened was about five minutes after 12 a. m. of July 23rd. It was in the nighttime. The train which ran over and killed deceased was being negligently operated •by the defendants in the following respects: (a) Said train was running at a greater rate of speed than six miles per hour, although a valid ordinance of the City of Atlanta limits the speed of all trains to six miles per hour, said provision being found in section 1360 of the Code of 1895 of said City, which reads as follows: cAny engineer or other person in charge of an engine, with or without cars attached, who shall run the same through any part of the city at a greater rate of speed than six miles an hour shall, on conviction, be fined not more than five hundred dollars, or imprisoned not longer than thirty days, either or both, in the discretion of the recorder’s court.’ (6) There were no lights upon the front end of the car, and no brakeman or flagman there to warn any person on the crossing of the approach of the train, (c) There was no flagman or switchman stationed at the crossing or preceding the forward car to warn persons at the crossing and prevent them from being run over. (d) Defendant employees and defendant company knew the usual mode of operating freight-train No. 86, which was then passing Fair street in full view of said defendants, who knew the custom for the brakeman to get way-bills for his train at Fair street, and yet neither they nor either of them took any precaution or used any diligence to avoid injuring deceased, but on the contrary so recklessly and negligently managed the train on the north-bound main line as to run over and kill deceased. (7) Plaintiff charges that defendant Hardwick was
Upon application of the railway company, alleging that it was
1. One of the grounds upon which the railroad company sought a removal of the ease to the Federal court was that a separable controversy was shown between the defendant, and the plaintiff, in the allegation of negligence wherein it was stated that the train was run at a greater speed than six miles per hour, in violation of an ordinance of the City of Atlanta, within the limits of which the train was being run. Another ground was that a separable controversy existed between defendant company and the plaintiff, by reason of an allegation as follows: “There was no flagman or switchman stationed at the crossing or preceding the forward car to warn persons at the crossing and prevent them from being run ■over.” We do hot think a separable controversy was presented by either of the allegations of negligence above referred to. The petition alleged, “The train which ran over and killed deceased was being negligently operated by the defendants in the following respects;” — then followed allegations of negligence including those above referred to. It was further alleged in the petition, with reference to the brakeman, that “it was within his power and duty to control the movements and speed of his train by giving signals to the engineer.” The suit having been brought against the brakeman and the conductor, the allegations that the train was being negligently operated “by the defendants” in the manner stated could have no other meaning than that the brakeman and conductor were engaged in the negligent acts referred to. The allegation that it was within the power and duty of the brakeman to control the movements and speed of the train, coupled with the allegation that the defendants (which included the brakeman) were guilty of negligence in operating the train at a speed exceeding six'miles per hour in violation of the city ordinance, necessarily meant that such negligent operation of the train involved the negligent conduct of the brakeman. It is not distinctly stated in what way the brakeman was connected with the negligent act alleged to consist in there being “no flagman or switchman stationed at the crossing or preceding the forward ear,” .but this is one of the allegations
Another ground upon which it was sought to have the case removed was that the words “defendant employees,” used in the 6th paragraph of the petition, included all of the employees of the railway company in charge of the movements of the train. Whether or not a separable controversy would exist if this was true need not .be considered, for the reason that the words “defendant employees” only included the brakeman and conductor, who were the employees of the railway company, and who were the only named defendants in the suit other than the railway company. Besides, the acts of negligence “by the defendant .employees and defendant company” were acts of negligence referred to in the allegation charging that the train which killed the deceased “was being negligently operated by the defendants in the following respects.” The question as to whether or not there is a separable controversy must be determined from the pleadings of the plaintiff. ' The fact that a resident defendant might interpose defenses which, if sustained, would relieve him of liability, and would leave a controversy only between the plaintiff and the non-resident defendant does not make a case for removal. In Louisville and Nashville Railroad Co. v. Ide, 114 U. S. 52, 56 (5 Sup. Ct. 735, 737 (29 L. ed. 63), it was said: “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumner, 348 [Fed. Cas. No. 13,100]. A separate defense may defeat a joint recovery, but it can not deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy,
Judgment reversed.