105 F. 449 (D.Ind. 1900), 9,893, Charman v. Lake Erie & W.R. Co.

Docket Nº:9,893.
Citation:105 F. 449
Party Name:CHARMAN v. LAKE ERIE & W.R. CO. et al.
Case Date:December 22, 1900
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 449

105 F. 449 (D.Ind. 1900)

CHARMAN

v.

LAKE ERIE & W.R. CO. et al.

No. 9,893.

United States Circuit Court, D. Indiana.

December 22, 1900

This is an action by the plaintiff, as administrator, against the defendants to recover damages for the death of Frank Coffman by the wrongful acts and omissions of the defendants. The action was begun in the circuit court of Delaware county, Ind., and removed into this court. It is alleged that on November 29, 1899, Frank Coffman died intestate, and that letters of administration upon decedent's estate were duly issued to the plaintiff, who has duly qualified and entered upon the duties of his office; that on and long prior to November 29, 1899, the defendant the Lake Erie & Western Railroad Company owned and operated, and now owns and operates, a line of railroad through the county of Delaware, Ind., which passes through the city of Muncie, in said county, at which place the defendant railroad company has had during said time regularly established switches and switch yards for handling cars and making up trains, and that during all of said time the defendant railroad company kept as its duly-appointed yard master the defendant Oliver, with full authority and control over said switch yard and the employes in said switch yard; that during said time the defendant company was, and still is, a common carrier for hire of freight and passengers, employing a large number of persons for the purpose of operating its railroad and switch yards; that on October 5, 1899, the defendants employed the decedent and put him to work as a brakeman in said switch yard, and that on November 29, 1899, the decedent, while in the performance of his duty as such brakeman, was requested, ordered, and commanded by defendant Oliver, as such yard master in charge of said switch yard, to couple together by means of chains two damaged cars which were then standing on one of the switches in said switch yard with a number of other cars; that the damages

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cars were without drawbars and bumpers, and that because of said defects the ends of said cars would come together, leaving but a few inches between their flat-end surfaces; that while in the exercise of due care, and without any fault or negligence on said decedent's part, and while chaining together said damaged cars, and acting under direct command of said defendant yard master of said defendant company, said yard master, without notice or warning to decedent, carelessly, negligently, and recklessly permitted an engine to be operated and propelled in and upon said switch, which set said cars in motion, whereby said cars, without decedent's fault or negligence, were propelled upon and against the decedent with great force and violence, and said decedent was then and there, without fault, caught between said damaged cars, and his head and skull were crushed, from the effects of which he instantly died; that the defendant Oliver kept no outlook and exercised no care whatever whereby he could have known that said cars would be propelled against the decedent; that said yard master used no signals to prevent said cars from being propelled against the decedent as aforesaid, and gave no warning to decedent that he was in danger of injury from said moving cars; that decedent was not aware of his peril, and had no notice of the movement of said cars; that all of said wrongs, grievances, and injuries to the person of the decedent occurred solely through the negligence, carelessness, and recklessness of said defendants, as hereinbefore stated and alleged; that decedent was a strong and vigorous young man, 27 years of age; and that he left a wife and child.

The defendant the Lake Erie & Western Railroad Company filed a petition and bond for the removal of the cause from the state court into this court. The state court ordered the removal. The petition alleges 'that the Lake Erie & Western Railroad Company is, and at the time the action was commenced was, a corporation organized and existing under and by virtue of the laws of the state of Illinois, and a citizen of that state, and that the plaintiff was at the time of the commencement of the suit, and ever since has been, and still is, a resident and citizen of the state of Indiana; that the matter in dispute between the plaintiff and the petitioner in said action exceeds, exclusive of interest and costs, the sum of two thousand dollars; that there exists in said action a controversy between the plaintiff and the petitioner, which is wholly between them, and is entirely distinct and separate from the controversy between the plaintiff and the defendant Hortense L. Oliver, and the controversy between the plaintiff and the petitioner may be tried and fully determined apart from and independently of the controversy between the said plaintiff and the said Oliver; that, as shown by said complaint filed herein, the plaintiff seeks to recover a judgment against the defendant Oliver solely...

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