De Atley v. Chesapeake & O. Ry. Co.

• Decision Date: 06 November 1912
• Citation: 201 F. 591
• Parties: DE ATLEY v. CHESAPEAKE & O. RY. CO.
• Court: U.S. District Court — Eastern District of Kentucky

201 F. 591

DE ATLEY v. CHESAPEAKE & O. RY. CO.

United States District Court, E.D. Kentucky.

November 6, 1912

Holmes & Ross, of Carlisle, Ky., and A. D. Cole, of Maysville, Ky for plaintiff.

Worthington Cochran & Browning, of Maysville, Ky., for defendant.

COCHRAN District Judge.

This cause is before me on motion to remand. It is a suit to recover damages for a personal injury. The plaintiff was a brakeman in defendant's employ, and at work, as such, on one of its freight trains at the time of his injury. The injury was occasioned by his falling in an attempt to mount the train whilst in motion, and consisted in having his right foot cut off by one of its wheels. As it approached a tower from which written orders as to the operation of trains are issued, the plaintiff, by direction of the engineer, left the train to get an order, and it was on his return with the order that he was making the attempt to mount. At no time did the train stop to let him off or get on. It had been the practice for a year or more for brakemen to get written orders from the tower in this way; i.e., getting off and remounting whilst the train was in motion as it passed the tower.

The negligence complained of was the failure on the part of the engineer to stop the train for plaintiff to mount it, and the failure to adopt and promulgate a rule forbidding such a practice and requiring the trains to be stopped under such circumstances. It is alleged in the petition that the defendant is a common carrier engaged in interstate commerce and that the plaintiff was employed by it in such commerce, and the right to recover is expressly based on the Employer's Liability Act April 22, 1908.

The ground upon which removal was sought was diversity of citizenship. In determining whether the cause was removable, I will limit myself to the question whether its removal was forbidden by the amendment of 1910 to that act. It is claimed that it is not so forbidden for two reasons. One is that the case did not arise under the act. The other is that the removal was obtained, not on the ground that the case arose thereunder, but on the ground of diversity of citizenship. The claim that the case did not arise under that act is made in the face of the fact that it is alleged that the defendant is a common carrier engaged in interstate commerce, and that plaintiff was employed by it in such commerce, and the right to recover is expressly based on that act.

The act authorizes a recovery of damages for an 'injury or death resulting in whole or in part from negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. ' It thus authorizes a recovery, apparently at least, in two classes of cases. The contention is that this case does not come within either class. Clearly it does not come within the second, for there was no defect or insufficiency as is called for by it. It does not come within the first, as to the negligence in not adopting or promulgating the rule referred to, for it is limited to cases where the injury is caused by the negligence of a 'coemploye or fellow servant,' and the failure to adopt such rule was not the 'violation of any duty owed by any coemploye or fellow servant' to plaintiff. It was a violation of duty by the defendant, the carrier, if by any one. And, as to the negligence of engineer, it does not come within the first class because it does not appear from the allegations of the petition that the engineer was negligent in not stopping the train. It is not alleged that there was any duty on the part of the engineer to stop the train to enable the plaintiff to get aboard, or that he knew that plaintiff had gotten off the train, or that he wanted to get back on. Such, in substance, is the defendant's position on the question whether the case is one arising under that act. The plaintiff took an appeal from the order of the lower court removing the case to the Court of Appeals of Kentucky, and that court reversed that order, holding the case nonremovable. De Atley v. Chesapeake & Ohio Ry. Co., 147 Ky. 315, 144 S.W. 95. It is held that the case arose under the act because of the clause as to the negligence of the engineer. Judge Nun said:

'Appellee's counsel concede that the act and its amendment imposed a liability on the carrier for any injury caused by the negligence of a coemploye or fellow servant, and for other causes, not necessary to mention here. Appellant was clearly a coemploye of the engineer in charge of the train, and the act referred to makes the company liable for the negligence of the engineer that caused or produced the injury to appellant.'

Concerning the allegations of the petition and the effect thereof, he said this:

'It was also clearly charged that the engineer in charge upon the occasion of the injury directed De Atley to leave the train while it was running, and negligently failed to stop the train to allow him to get aboard in safety. If these acts were actually committed, and they must be so considered for the purpose of this action, they were certainly negligent acts of a coemploye of De Atley within the meaning of the act of Congress, and he was entitled to maintain his action in the state court.'

The petition alleges that the engineer failed to stop the train and that he was negligent in so doing. It seems to me, also, that the allegations thereof should be construed to mean that he knew that plaintiff had gotten off the train and wanted to get back, and that whilst the train was in motion. It is alleged that the practice had been for a year or more for the servants superior in authority to the brakemen to require them to get on and off the trains for orders whilst it was in motion and without stopping, and that on this occasion the plaintiff was directed by the engineer when the train was approaching the tower to go forward to it and get orders, and that, whilst he was on the way from the tower pursuant to such direction with orders and was endeavoring to get on the train while in motion, he fell. It is not distinctly alleged that he got off the train pursuant to the direction, but that is necessarily to be inferred from the...