Beckwith v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 17 June 1915
• Docket Number: 1810.
• Citation: 223 F. 858
• Court: U.S. District Court — Western District of Washington
• Parties: BECKWITH et ux. v. CHICAGO, M. & ST. P. RY. CO. et al.

223 F. 858

BECKWITH et ux. v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 1810.

United States District Court, W.D. Washington, Southern Division.

June 17, 1915

W. H Abel, of Montesano, Wash., for plaintiffs.

George W. Korte, of Seattle, Wash., for defendants.

CUSHMAN District Judge.

Plaintiffs move to remand this cause to the state court, from which it was removed upon the petition of the Chicago, Milwaukee & St Paul Railway Company, claiming a separable controversy was involved as to it. The suit is one brought by the parents of a deceased son, killed in a crossing accident. Deceased was a passenger in an automobile, operated by two of the defendants, which was struck by an engine of the defendant railroad company, upon which the other defendant was engineer. The defendant railroad is accused of negligence in not maintaining warning signals at the crossing and in not keeping its right of way clear, making it difficult for travelers on the right of way to know of the approach of trains. It is further alleged:

'That at the time the defendant Benjamin M. Snyder was engineer in charge of and operating a train belonging to the defendant Chicago, Milwaukee & St. Paul Railway Company, which train consisted of a locomotive and several freight cars. That the defendants, Benjamin M. Snyder and Chicago, Milwaukee & St Paul Railway Company then operated and ran said train at a negligent, unsafe, and rapid speed, and in approaching said crossing gave no warning or signal of any kind of the approach of said train, and after said automobile, wherein the said Charles Oren Beckwith was a passenger, got upon said crossing, said defendants negligently failed to stop said train, although it was then possible to do so, and said defendant negligently ran into and collided with said automobile, thereby throwing the said Charles Oren Beckwith out of said automobile and causing his instant death. That the driver of said automobile, to wit, one Gordan, negligently failed to stop before crossing said railroad, and by reason of all of said negligent acts the said Charles Oren Beckwith was killed. That by the negligent acts of the defendants, as alleged in this complaint, the plaintiffs have been damaged in the sum of $10,000.'

Pierce's Code of Washington for 1912 (title 81, Secs. 217 and 259) provides for the abolishing of common-law forms of pleading, and that, for the purpose of determining the effect of a pleading, its allegations shall be liberally construed. Under such rule it may fairly be said to be the intention of the pleader to charge that the death was caused by the joint and concurrent negligence of the several defendants. At any rate, upon a motion to remand, the court must so hold, though, were the cause before the court for trial, the disposition might be otherwise. Alabama G. Southern Ry. v. Thompson, 200 U.S. 206, at 218, 219, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; 38 Cyc. 488.

In Trivet v. Chesapeake & O.R. Co., 212 F. 641, 643, 645, 129 C.C.A. 177, 179, 181, where the refusal to remand was upheld upon appeal, it is pointed out:

'As to this ground of negligence, therefore, a separable controversy existed, which was removable to the federal court, unless the negligence in operating the train and the negligence with respect to the depot and platform are sufficiently alleged to have concurred in producing the accident. * * * If, however, such joint action and concurrence are sufficiently alleged, the case was not removable. * * * While, according to this statement, the accident would not have happened, but for the negligent operation of the train, there is neither allegation nor necessary inference that it would not have happened but for the character of the approach provided to the depot and platform. We recognize that, if a charge of concurrent and co-operative negligence seems intended, a separable controversy does not result from the fact that separate causes of action might have been maintained, or that a separate defense might defeat a joint recovery.'

The pleader in that case, so far as the report discloses, used no language equivalent to that in the present case. The pleader in the present case, after giving the facts, alleges that 'all of such negligent acts caused the death. ' To have added 'jointly and concurrently caused' would have been no more than a conclusion.

The word 'all' is very comprehensive in its meaning. Moore v. Virginia Fire & Marine Ins. Co., 28 Grat (Va.) 508, at 516, 26 Am.Rep. 377. In the sense in which it is used in the present pleading, the words 'by reason of all of such negligent acts' form an adverbial phrase. Webster gives 'altogether' as one of the synonyms for the adverb 'all.' It is as though the clause read, 'Altogether such negligent acts caused the death. ' 'Altogether' means conjointly. ...