120 F. 389 (D.Minn. 1903), Helms v. Northern Pac. Ry. Co.

Citation:120 F. 389
Party Name:HELMS v. NORTHERN PAC. RY. CO. et al.
Case Date:January 28, 1903
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 389

120 F. 389 (D.Minn. 1903)

HELMS

v.

NORTHERN PAC. RY. CO. et al.

United States Circuit Court, D. Minnesota, Sixth Division.

January 28, 1903

Michelet & Michelet, for plaintiff.

C. W. Bunn and Emerson Hadley, for defendants.

AMIDON, District Judge.

This action was brought in the district court of Becker county, Minn., against the Northern Pacific Railway Company and Fred Ames, an engineer in charge of one of its engines, to recover damages for the death of Johan Frederick Helms, caused, as is alleged, by the negligent operation of the locomotive. The plaintiff and the defendant Ames are both citizens of the state of Minnesota, and the other defendant was organized under the laws of Wisconsin. The railway company caused the action to be removed into this court upon the ground that it involves a separate controversy as between it and the plaintiff. Thereafter it demurred to the complaint for the reason that it improperly unites several causes of action, and at the same time the plaintiff interposed a motion to remand the case to the state court.

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That portion of the complaint which sets forth the charge of negligence reads as follows:

'Said Johan Frederick Helms received injuries by reason of the negligence of the defendant, its servants and employes, as hereinafter alleged: That on said 27th day of November, 1901, at the said company's coal shed in said Detroit, when in the discharge of the duties of such employment in then and there assisting in filling the coal tank of locomotive No. 344 of said corporation, and when assisting to hold in place a chute leading from the coal shed to said coal tank, the said deceased, by the negligence of said Fred Ames, engineer, then and there the servant of said railway corporation, and by the negligence of other employes of said corporation on and about said locomotive, was crushed between the said chute and the cabin of said locomotive by suddenly, recklessly, and negligently driving the locomotive against the said chute.'

The question now submitted for decision is, in effect, whether this complaint sets forth a single cause of action against both the defendants jointly, or two separate causes of action against each of them severally; for in the one case the motion to remand should be granted, in the other denied. It is urged by counsel for plaintiff that the supreme court has decided this question in his favor in Railway Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121. A careful examination of the opinion in that case does not sustain this contention. It will first be noticed that the complaint in the present suit does not, as in the case referred to, charge that the negligence alleged was the joint negligence of both the defendants, nor are there any facts averred justifying an inference that the corporation itself was guilty of any direct participation in such negligence. But, even if it were stated in general terms that the injury was caused by the joint negligence of both defendants, this ought not to be conclusive upon them; on the contrary, the plaintiff should at least be required to make his pleading definite and certain by a statement of the facts upon which the charge of joint negligence is based. Here, however, there is no such charge. The responsibility of the company, if any, is not for negligence of its own, but for that of its servants.

Turning, now, to the opinion in the Dixon Case, it will appear not only that the question here raised was not passed upon there, but that that decision was rested solely upon the ground that the railroad company and its employes were guilty of concurrent negligence. The court holds (page 139, U.S.,page 70, 21 Sup.Ct.,and page 121, 45 L.Ed.) that the complaint justified the inference that the train was run at too great a speed, and that, if the speed was permitted by the company's rules, or not forbidden, though dangerous, the negligence in that particular would be the negligence of the company. It is also held that the complaint justified the inference that the accident was caused by the omission of the employes in charge of the train to give the statutory signals on approaching the highway crossing, and that this omission constituted negligence on their part. For the reason that both these grounds of negligence were fairly charged in the complaint, the decision of the state court in holding the cause of action to be single as to both the company and its servants is sustained. While many other points are adverted to in the opinion, this is the only question actually decided. The fact that the court is at considerable

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pains, and indulges in a liberal construction of the complaint, in order to thus rest its decision upon the charge of concurrent negligence, affords persuasive evidence that it was of the opinion that a complaint against both master and servant for the negligence. Otherwise that case would have presented no difficulty. If negligence of the servant alone would sustain a joint action against him and his master, such negligence was there charged in unmistakable terms. We are not, however, left to inference in determining that the supreme court did not intend, in the Dixon Case, to pass upon the question now under consideration. After referring to the conflict of authorities on the subject as to whether both the master and his servant could be proceeded against in the same action for the negligence of the servant, the court says that it is not called upon to revise the decision of the highest court of Kentucky on this subject, 'as the disposition of this case turns on other considerations. ' Language could not make it more plain that the court did not intend to pass upon this controverted question.

In the decision in the Dixon Case it is stated that Chief Justice Gray, in the opinion in Mulchey v. Society, 125 Mass. 487, remarked that the question whether the master and his servant could be held jointly liable for the negligence of the servant was 'a somewhat nice one.' This is evidently a slip, as Chief Justice Gray used no such language in the case referred to, but, on the contrary, asserted in unqualified terms that such an action could not be maintained. I quote his words in full on this branch of the case:

'But the jury should have been instructed, as requested by the defendants, that this action, being in the nature of an action on the case, could not be sustained against both the society and its agents. If there was any negligence in the agents, Barber and Sleeper, for which they could be held liable, their principal, the society, would be responsible, not as if the negligence had been its own, but because the law made it answerable for the acts of its agents. Such negligence would be neither in fact nor in legal intendment the joint act of the principal and of the agents, and therefore both could not be jointly sued. It is not like the case of a willful injury done by an agent by the command or authority of his principal, in which both are in law principal trespassers, and therefore liable jointly.'

The phrase quoted is evidently taken from the opinion of the supreme court of Maine in Campbell v. Sugar Co., 62 Me. 553, 16...

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