132 F. 715 (S.D.Iowa 1903), Henry v. Illinois Cent. R. Co.

Citation:132 F. 715
Party Name:HENRY v. ILLINOIS CENT. R. CO. et al.
Case Date:May 08, 1903
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 715

132 F. 715 (S.D.Iowa 1903)

HENRY

v.

ILLINOIS CENT. R. CO. et al.

United States Circuit Court, S.D. Iowa, Western Division.

May 8, 1903

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

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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...

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