Knuth v. Butte Electric Ry. Co.

• Decision Date: 28 May 1906
• Docket Number: 300.
• Citation: 148 F. 73
• Parties: KNUTH et al. v. BUTTE ELECTRIC RY. CO. et al.
• Court: U.S. District Court — District of Montana

148 F. 73

KNUTH et al. v. BUTTE ELECTRIC RY. CO. et al.

No. 300.

United States Circuit Court, D. Montana.

May 28, 1906

John J McHatton and J. G. Brown, for plaintiffs.

W. M Bickford and Geo. Shelton, for defendants.

The plaintiffs brought this action against the defendants to recover damages for the death of Bertha Knuth. It is alleged in the complaint that the plaintiffs and the defendant Alfred Jackson are citizens of the state of Montana, and that the defendant Butte Electric Railway Company is a corporation organized and existing under the laws of the state of West Virginia, doing business as a common carrier, operating an electric railroad for the transportation of passengers at Butte, Mont. It is charged that on the 20th of August, 1905 Bertha Knuth, who was 16 years of age, was returning to the city of Butte from a resort just beyond the city limits known as 'Columbia Gardens.' She was a passenger on one of the electric cars of the defendant company; it being alleged that the defendants were jointly running and operating the car upon which Bertha Knuth took passage and was riding, and that each was bound to the exercise of great care and caution in running and operating the car, to the end that, as a passenger, she would be safely transported to her destination. It is alleged that the track was laid upon a certain street known as Utah avenue, and across the tracks of the Butte, Anaconda & Pacific Railway Company, which latter company owned and operated a steam railway, and frequently ran cars upon its tracks, all of which was well known to the defendants. It is alleged that the point of crossing of the tracks of the electric railroad company and the Butte, Anaconda & Pacific Railroad was a highly dangerous place, and that there was always great danger of the cars or engines of the steam railway company running into the cars of the electric company, and killing or injuring passengers, and that such danger was well known to the defendants, and was not known to Bertha Knuth; that it was necessary for the defendant company and its employes to exercise extraordinary care in passing the crossing referred to; that on the evening of the 20th of August, when the car on which Bertha Knuth was riding was passing up Utah avenue it was carelessly and negligently run upon the railway crossing by the defendants, while an engine and a train of freight cars were being operated by the steam railroad company, and that the cars so operated, or one of them, was with great force run against the car in which Bertha Knuth was riding; that the car was overturned and wrecked, and that Bertha Knuth was thrown under the wreck, where she was pinioned down with other passengers; and that she was not taken out for about one and one-half hours, by reason of all of which she was injured, and suffered greatly, and as a result of her injuries died a few days thereafter. Plaintiffs are father and mother of the dead girl. They allege that she greatly assisted them; that the father is a cripple, and the mother is not able to work; that if the defendants had exercised the care and caution required of them in the operation of the electric railway and the running of the car, the collision would not have occurred; that the death of the child was caused solely by the negligence and want of proper care on the part of the defendants. The defendant Butte Electric Railway Company filed a separate demurrer, which was general and special. Thereafter it filed its petition for removal, alleging that it was a corporation organized and existing under the laws of the state of West Virginia; that the allegations of negligence on the part of the defendant company were controverted by the said company; and that the plaintiffs fraudulently and improperly joined as codefendant with the petitioner Alfred Jackson, who was and is a citizen and resident of the state of Montana, and that the sole purpose of joining him as a defendant was to defeat the jurisdiction of the United States court. The necessary bond was given, and the cause was transferred to this court. A motion to remand has been filed upon the ground that there is no jurisdiction in this court.

HUNT, District Judge (after stating the facts).

The counsel for the defendant corporation have presented a learned and elaborate brief, urging reasons why jurisdiction is in this court. But after a very careful study of the opinion of the Supreme Court in Alabama G. S. R. Co. v Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, and of the allegations of plaintiffs' complaint herein, I am convinced that, upon the fact of the complaint, the action appears to be joint. The defendants owed a common-law duty to plaintiffs' intestate. This duty was independent of any contract, and a right to recover may be founded upon a neglect of such duty. The action is, therefore, ex delicto, and defendants, joint tort-feasors, may be sued separately or jointly, as plaintiffs elect. ...