Atchison, T. & SF Ry. Co. v. Francom

• Decision Date: 10 April 1941
• Docket Number: No. 9632.,9632.
• Citation: 118 F.2d 712
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. FRANCOM et al.
• Court: U.S. Court of Appeals — Ninth Circuit

118 F.2d 712 (1941)

ATCHISON, T. & S. F. RY. CO. et al. v. FRANCOM et al.

No. 9632.

Circuit Court of Appeals, Ninth Circuit.

March 17, 1941.

As Amended on Denial of Rehearing April 10, 1941.

Robert Brennan, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, Cal., for appellants.

Delamere F. McCloskey, Russell D. Hardy, and Marion P. Betty, all of Los Angeles, Cal., for appellees.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment against appellants, defendants below, in favor of appellees, plaintiffs below, adjudging that plaintiffs "have and recover of and from the defendants, The Atchison, Topeka and Santa Fe Railway Company, a corporation, Hugh A. Donahue and E. F. Abril, the sum of Thirty-five Thousand Dollars ($35,000.00), together with costs herein taxed at $69.60."

The complaint by the parties now appellees, from which the judgment arose, alleges the following tortious conduct of the appellants and damages proximately caused thereby:

"* * * That at said time, the above named defendants were backing and operating extra engine 3880 and five cars in a southerly direction on said fifth spur or siding, and negligently, and carelessly caused said end or fifth car to crash into and against the north or right side of said truck as it was attempting to cross over said crossing, capsizing the same. That as a result thereof the said Joseph Edgar Francom was crushed in and under said truck causing him to suffer fatal injuries, from which injuries he died on July 1, 1935.

"That said fatal injuries suffered by said Joseph Edgar Francom resulting in his death, as aforesaid, were caused directly and proximately by the negligence and careless acts and omissions of the said defendants; that by reason of the premises and by reason of the loss of services, support, society, comfort and companionship of the said Joseph Edgar Francom, said plaintiffs have sustained general damages in the sum of $50,000.00."

Appellees filed this complaint in the Superior Court of the State of California in and for the County of Los Angeles. On the petition of the Atchison, Topeka and Santa Fe Railway Company, a Kansas corporation, the cause was removed by order of that court to the United States District Court for the Southern District of California, Central Division. A motion to remand was made by the plaintiffs on the ground that plaintiffs were citizens and residents of the State of California and the...