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

• Decision Date: 21 February 1942
• Docket Number: No. 9818.,9818.
• Citation: 125 F.2d 49
• Parties: CHEYNE et al. v. ATCHISON, T. & S. F. RY. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

125 F.2d 49 (1942)

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

No. 9818.

Circuit Court of Appeals, Ninth Circuit.

January 22, 1942.

Rehearing Denied February 21, 1942.

Tudor Gairdner, of Los Angeles, Cal., for appellants.

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

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellants, Beryl Lucille Cheyne, James Vernon Cheyne II¹ and Ethel Elizabeth Cheyne (hereafter called plaintiffs), brought this suit against appellees, Atchison, Topeka & Santa Fe Railway Company, Ray O. Light, Earl C. Nichols and George Kohlhaas (hereafter called defendants), for damages in the sum of $225,500 for the death of James Vernon Cheyne,² alleged to have been caused by defendants' negligence. The suit was brought in the Superior Court of Orange County, California, but, on petition of defendant Atchison, Topeka & Santa Fe Railway Company (hereafter called Atchison), was removed from that court to the District Court of the United States for the Southern District of California. Trial in the District Court resulted in a verdict and judgment that plaintiffs recover $12,500 of defendant Atchison and recover nothing of the other defendants. On motion of defendant Atchison, the judgment against it was set aside and judgment was entered in its favor. Plaintiffs have appealed.

The question is whether defendant Atchison was entitled to remove the case to the District Court. Though not raised by the parties, the question is here and has to be decided. Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Venner v. New York Central R. Co., 6 Cir., 293 F. 373. See, also, Southern Pacific Co. v. McAdoo, 9 Cir., 82 F.2d 121; Electro Therapy Products Corp. v. Strong, 9 Cir., 84 F.2d 766; Gavica v. Donaugh, 9 Cir., 93 F.2d 173; Minnis v. Southern Pacific Co., 9 Cir., 98 F.2d 913; Alexander v. Westgate-Greenland Oil Co., 9 Cir., 111 F.2d 769.

By § 24(1) of the Judicial Code, 28 U.S. C.A. § 41(1), district courts of the United States are given jurisdiction of "all suits of a civil nature, at common law or in equity * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States." Section 28 of the Judicial Code, 28 U.S.C. A. § 71, provides for removal, from State courts to district courts of the United States, of suits "arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority," and provides that "Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district."

This is a suit of a civil nature, at common law, and the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, but it does not arise under the Constitution or laws of the United States or any treaty, nor is it wholly between citizens of different States; for, although plaintiffs and Atchison are citizens of different States,³ plaintiffs and Light, Nichols and Kohlhaas are citizens of the same State.⁴ Removal was obtained and is sought to be justified on the ground that, in the suit, there is a controversy which is wholly between plaintiffs and Atchison, and which can be fully determined as between them — in other words, a separable controversy. Whether or not there is such a controversy is the question we have now to determine.

The complaint⁵ alleges that at all times mentioned therein Atchison was a common carrier and, as such carrier, maintained a railroad and railroad tracks called the Venta spur, which crossed Highway 101 at a point near Tustin, California; that said highway was daily and continuously used by the public in traveling by automobile between Santa Ana, California, and San Diego, California; that, in so using said highway, it was necessary to cross said spur at the crossing above mentioned; that said highway was bounded on the southerly side by a row of eucalyptus trees which extended along said highway for a distance of approximately one-fourth of a mile to the east and to the west of said crossing and obscured the view by persons using said highway of trains traveling upon said spur; that, consequently, said crossing was a dangerous one; and that all these facts were known to defendants (Atchison, Light, Nichols and Kohlhaas).

The complaint further alleges that on December 2, 1938, at about 6:50 P. M., James Vernon Cheyne was driving an automobile truck in a westerly direction upon said highway and toward said crossing; that defendants⁶ were, at the same time, operating and propelling a freight train upon said spur and toward said crossing; that said train was in the charge and under the control of Light, Nichols and Kohlhaas; and that Light, Nichols and Kohlhaas were agents, servants and employees of Atchison, then and there acting within the scope of their employment, Light as conductor, Nichols as engineer and Kohlhaas as brakeman of said train. These allegations are found in paragraphs 8, 10, 12, 13 and 14 of the complaint.

Paragraph 14 further alleges that, in operating said train, "defendants negligently, carelessly and unlawfully failed and neglected to give or make any proper sign or warning, or any sign or warning whatsoever of the approach of said train to said highway and so negligently failed to...