Cincinnati, New Orleans Texas Pacific Railway Company v. George Bohon

• Decision Date: 02 January 1906
• Docket Number: No. 177,177
• Citation: 200 U.S. 221,26 S.Ct. 166,4 Ann.Cas. 1152,50 L.Ed. 448
• Parties: CINCINNATI, NEW ORLEANS, & TEXAS PACIFIC RAILWAY COMPANY, Plff. in Err. , v. GEORGE BOHON, Administrator of Edward Cook, Deceased, and Fred Milligan
• Court: U.S. Supreme Court

200 U.S. 221

26 S.Ct. 166

50 L.Ed. 448

CINCINNATI, NEW ORLEANS, & TEXAS PACIFIC RAILWAY COMPANY, Plff. in Err.,

v GEORGE BOHON, Administrator of Edward Cook, Deceased, and Fred Milligan.

No. 177.

Argued December 15, 1905.

Decided January 2, 1906.

Messrs. John Galvin and Edward Colston for plaintiff in error.

Messrs. John W. Yerkes and Robert Harding for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This case was considered by this court at the same time with the Alabama G. S. R. Co. v. Thompson (just decided) 200 U. S. 206, 50 L. ed. ——, 26 Sup. Ct. Rep. 161, and we need not repeat the discussion therein had as to the construction of the removal act of 1887 [24 Stat. at L. 552, chap. 373, U. S. Comp. Stat. 1901 p. 508], under the decisions of this court. This case has an additional feature which we shall proceed to notice. The action was brought by the defendant in error as administrator of Edward Cook, deceased. The petition charged that the plaintiff's intestate was engaged in the yards as a brakeman and switchman and was uncoupling and giving attention to the cars of the defendant company, which cars and an engine attached thereto were in charge of the defendant Milligan, as engineer, engaged in operating, managing, and controlling the same for the defendant company, and, while plaintiff's intestate was thus engaged, the defendant company and the defendant Milligan caught and crushed said Cook's body between the cars of the train, by and through the gross negligence of Milligan and of defendant company, in the operation, management, and control of the engine and train; that the injuries to the plaintiff resulted in his death a few minutes thereafter, and when so caught and crushed said Cook was engaged in discharging his duties as brakeman to the defendant company; the death of said Cook was caused as aforesaid by the gross negligence and carelessness of defendant company and Milligan. The railroad company filed its petition in the state court for the removal of the cause to the United States circuit court for the eastern district of Kentucky, upon the ground that there was a separable controversy between the petitioner, a resident and citizen of Ohio, and the plaintiff below, who was a citizen and resident of Kentucky. The circuit court of Mercer county refused to remove the case, and a verdict and judgment were rendered for the plaintiff below. Upon appeal to the court of appeals of Kentucky, the judgment was reversed for errors occurring at the trial. At a second trial the verdict and judgment were rendered for the plaintiff below, which was again reversed and remanded. On the third trial the verdict and judgment were again rendered for the plaintiff below, which judgment was affirmed by the court of appeals of Kentucky. The sole question argued here is as to the correctness of the state court in refusing to order the removal of the cause, which judgment was affirmed by the Kentucky court of appeals.

The action for death by negligence is regulated by the Kentucky Constitution and statutes. Section 241 of the Constitution provides:

'Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporations and persons so causing the same.'

Section 6 of the Kentucky statutes reads as follows:

'Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, and when the act is wilful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased.'

This statute undertakes to give an action for negligence against the companies or corporations responsible therefor and their agents or servants causing the same. The statute has been before the court of appeals of Kentucky, and in the case of Winston v. Illinois C. R. Co. 111 Ky. 954, 957, 55 L. R. A. 603, 604, 65 S. W. 13, that court said of the state Constitution and this statute:

'The Constitution and statutes of this state, as construed by the repeated adjudications of this court, make the railroad company liable for the acts of the agents and servants in charge of its trains. If a servant is guilty of such negligence, while acting for his master, as will make the master responsible, then, in such a case, the servant is personally and equally responsible with the master for the damages resulting from the negligent act. The mere fact that the master may be responsible for the wrongful act of the servant does not relieve the servant from a joint liability with the master for the wrongful act which produced the injury and damage.'

In the case under consideration, in the opinion of the court upon the question of right of removal, while it expressed the view that the weight of authority was in favor of the right to join the master and servant in actions for negligence, it reiterates its former view of the Kentucky statutes, citing Chesapeake & O. R. Co. v. Dixon, 104 Ky. 608, 47 S....