Henry v. Illinois Cent. R. Co.

Citation132 F. 715
PartiesHENRY v. ILLINOIS CENT. R. CO. et al.
Decision Date08 May 1903
CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

Shaw Sims & Kuehnle, for plaintiff.

W. S Kenyon and C. M. Harl, for defendant.

McPHERSON District Judge.

This case was brought in the district court of Crawford county Iowa, and was removed to this court by order of said state court on the petition and bond of the corporate defendant Illinois Central Railroad Company. The plaintiff is a citizen of Iowa, and the railroad company is a citizen of Illinois. The defendant Chapman is a citizen of Iowa. The plaintiff moves to remand because there is no separable controversy. From the petition it appears that plaintiff is the administratrix of the estate of Patrick Henry, deceased, who was killed January 12, 1902, by one of the trains of the defendant, between the stations of Arion and Denison, Iowa. Henry was in the service of the company, his duties being that of a track walker, going back and forth daily over a few miles of the track to see that the truck, railroad bed, etc were in suitable condition. Some time during the forenoon of the day of his death, while walking the track, going west, about 1 1/2 miles from the station, a train moving in the same direction struck Henry from behind, killing him instantly; and it is for this that this action is brought. It is alleged that Henry was without fault or blame. Defendant Chapman was the locomotive engineer in charge of the engine pulling the train. At the time in question there was no regular or schedule train due at that point. Henry was not notified of the train in question, and he had no knowledge thereof until just before he was struck, when it was too late to get from the track. The train under the control of Chapman was running at an exceedingly high rate of speed, and was run wantonly, recklessly, and negligently by him, the said Chapman, against the said Henry. The bell was not ringing, nor the whistle sounded, and no alarm given to Henry. And, finally, it is alleged that the death of Henry was caused by the joint and concurrent negligence of both the railroad company and Chapman. Damages in the sum of $15,000 are asked. The petition for removal is in due and the usual form, verified by one of the attorneys. It also recites that Chapman is joined with the fraudulent and sole purpose of preventing the removal. It is also made to appear that at a prior term of the state court the plaintiff commenced an action on the same state of facts, and defendant company obtained an order of removal, after which plaintiff dismissed the case, and still later brought this action.

Plaintiff, in support of his motion to remand, cites and relies on the case of Railroad Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121. I know of no case in the books on the question of removal more frequently cited, and more generally misunderstood, if I know what was therein decided, than the Dixon Case. What was that case? The company, engineer, and fireman were joined as defendants. Dixon was crossing the tracks on a public highway. The engineer and fireman were in charge of the train, and they negligently run the train over the said Dixon. In what the negligence consisted is not alleged, and does not appear. The state court denied the removal, and the Supreme Court of Kentucky affirmed the ruling. The kernel of the decision of the United States Supreme Court is in the first paragraph of the opinion of Chief Justice Fuller, wherein it said:

'The question to be determined is whether the Court of Appeals of Kentucky erred in affirming the action of the Boyd circuit court in denying the application to remove. And that depends on whether a separable controversy appeared on the fact of plaintiff's petition or declaration. If the liability of defendants, as set forth in that pleading, was
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6 cases
  • North Side Canal Co. v. Twin Falls Canal Co.
    • United States
    • U.S. District Court — District of Idaho
    • April 19, 1926
    ...F. 286; Carothers v. McKinley Mining & Smelting Co. (C. C.) 122 F. 305; Bryce v. Southern Ry. Co. (C. C.) 122 F. 709; Henry v. Illinois Cent. Ry. Co. (C. C.) 132 F. 715; Boatmen's Bank v. Fritzlen, 135 F. 650, 68 C. C. A. 288; Fritzlen v. Boatmen's Bank, 29 S. Ct. 366, 212 U. S. 364, 53 L. ......
  • Royer v. Rasmussen
    • United States
    • United States State Supreme Court of North Dakota
    • June 15, 1916
    ...... v. Chicago, R. I. & P. R. Co. 128 F. 85; McIntyre v. Southern R. Co. 131 F. 985; Henry" v. Illinois C. R. Co. 132 F. 715; Sessions v. Southern P. Co. 134 F. 313. . .        \xC2"......
  • Stotler v. Chicago & Alton Railway Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 18, 1906
    ......Railroad, 120 F. 389; Hukill v. Railroad, 72. F. 754; Kelly v. Railroad, 122 F. 286; Henry v. Railroad, 132 F. 715; Steinhauser v. Spraul, . 127 Mo. 541. (2) The court erred to the great ...The defendant. railway company is incorporated under the laws of Illinois. and operates a railroad running from Louisiana, Missouri,. through the city of Laddonia in ......
  • Sperry v. Wabash R. Co.
    • United States
    • U.S. District Court — Eastern District of Illinois
    • November 8, 1943
    ...averment of negligence on the part of the railroad company with which its codefendant had no concern was held separable. Henry v. Illinois Cent. R. Co., C.C., 132 F. 715. A charge of statutory liability against the railroad for failure to maintain a lookout was held not to involve the engin......
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