Chicago Rock Island Pacific Railway Company v. Albert Dowell

• Decision Date: 26 May 1913
• Docket Number: No. 208,208
• Parties: CHICAGO. ROCK ISLAND, & PACIFIC RAILWAY COMPANY et al., Plffs. in Err., v. ALBERT M. DOWELL
• Court: U.S. Supreme Court

229 U.S. 102

33 S.Ct. 684

57 L.Ed. 1090

CHICAGO. ROCK ISLAND, & PACIFIC RAILWAY COMPANY et al., Plffs. in Err.,

v ALBERT M. DOWELL.

No. 208.

Submitted April 14, 1913.

Decided May 26, 1913.

Messrs. F. C. Dillard and Paul E. Walker for plaintiffs in error.

[Argument of Counsel from pages 102-106 intentionally omitted] Messrs. David Smyth, J. D. Houston, F. S. Macy, and C. H. Brooks for defendant in error.

[Argument of Counsel from pages 106-109 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

This writ of error is sued out to review a judgment in a personal-injury case because a petition to remove the case to the circuit court of the United States is said to have been erroneously denied.

The plaintiff, Albert M. Dowell, was a laborer in the employ of the railroad company, his work being to remove cinders and other debris from the tracks and yards of the company in the town of Liberal, Kansas. He was a resident and citizen of that state. The railroad company was a corporation of the states of Illinois and Iowa, but not of Kansas. The plaintiff, while engaged in his proper work, was run down by an engine, upon which one Ed. Johnson was the engineer in control, sustaining serious and permanent injuries.

To recover damages for his hurt, Dowell sued the railroad company and Johnson as jointly and severally liable. Johnson was alleged to be, and was in fact, a citizen of the state of Kansas. The railroad company in due time filed its petition and bond, to remove the action of the plaintiff against it to the circuit court of the United States, as presenting a separable controversy between the plaintiff and the corporation, which could be tried out and determined without the presence of its codefendant, Johnson. It also averred that Johnson was a man of no means, who had been joined as a defendant 'for the sole and fraudulent purpose of defeating and preventing' the removal of the case by the nonresident railroad company to the circuit court of the United States. The application was denied and the suit was tried before a jury upon the issues made, which found for the plaintiff, against both of the defendants, in the sum of $15,000, for which sum a judgment was entered. This judgment was later affirmed by the supreme court of the state. 83 Kan. 562, 112 Pac. 136. The only error assigned in this court is that the Kansas court erred in denying the application for removal.

Shortly stated, the plaintiff's grounds for recovery, as averred in his petition, were these:

a. That the engine which ran over him was old, worn, and defective. 'That it leaked steam into its cylinder and would not stand when left alone, but would move without the interposition of any human or outside agency. That the appliances and machinery of the said engine for starting and stopping the same were so defective that it would start and stop without reference to said machinery, and would not respond to the operation of said machinery.' That it was without sufficient or safe driving-wheel brakes, all of which was averred to be well known to the defendants, and not known to the plaintiff.

b. That the defendant Johnson, in charge and control of the said engine at the time of its collision with plaintiff, 'was incompetent, unskilled, and unfit to discharge his duties as an engineer at the time he was employed, . . . as said railway company well knew, and that he has been unskilled, unfit, and incompetent, as the railway company well knew, but all of which the plaintiff was at all times ignorant.'

c. 'That the injury to plaintiff was the direct and proximate result of the unfitness and incompetency of the defendant, Ed. Johnson, and of the negligence and carelessness of said Ed. Johnson in carelessly, recklessly, and needlessly running said engine upon and against the said plaintiff, and of the careless failure of said Ed. Johnson in neglecting to use proper precaution to observe and avoid running upon and injuring the said plaintiff at the time and place in question, and in the carelessness of the defendant railway company in employing the said Ed. Johnson as engineer, and in retaining him and allowing him to act as engineer at the time and place in question, and in the carelessness of the defendant railway company in knowingly retaining and using said defective engine at said time and place, and in carelessly failing to take proper precaution to prevent injury to said plaintiff at said time and place while engaged in the discharge of his duty as employee of said defendant railway company; and each and every act of omission and commission of the defendants and of each of them as above were the joint, proximate, and concurrent cause of said imjury, and each of said acts of the said defendants materially, concurrently, and jointly contributed to the injuries of said plaintiff, and plaintiff says that he was without fault or negligence in the premises.'

The claim of a right to have the cause removed to the circuit court of the United States was that the requisite diversity of citizenship existed as between the plaintiff and the petitioning railroad company, and that there existed as between them a separable controversy.

But if the plaintiff alleges that the...