Cincinnati, N.O. & T.P. Ry. Co. v. Cook's Adm'r

• Decision Date: 22 March 1902
• Citation: 67 S.W. 383,113 Ky. 161
• Parties: CINCINNATI, N. O. & T. P. RY. CO. et al. v. COOK'S ADM'R. [1]
• Court: Kentucky Court of Appeals

67 S.W. 383

113 Ky. 161

CINCINNATI, N. O. & T. P. RY. CO. et al. v. COOK'S ADM'R. ^[1]

Court of Appeals of Kentucky.

March 22, 1902

Appeal from circuit court, Mercer county.

"To be officially reported."

Action by Edward Cook's administrator against the Cincinnati New Orleans & Texas Pacific Railway Company and Fred Milligan to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendants appeal. Reversed.

Gaither & Vanarsdall, for appellants.

Robt. Harding. E. M. Hardin, and C. A. Hardin, for appellee.

HOBSON J.

This action was filed on February 23, 1901, by appellee to recover for the death of his intestate, against the Cincinnati, New Orleans & Texas Pacific Railway Company and Fred Milligan who was an engineer in its service. It was charged in the petition that the death of the intestate was due to the negligence of Milligan, as engineer in the service of the railroad company, in moving a train under his charge. At the May term of the circuit court the railroad company filed a petition for removal of the case to the circuit court of the United States, alleging that it is a resident of the state of Ohio, and that Milligan was improperly joined with it as a codefendant for the fraudulent purpose of defeating the jurisdiction of the United States court. The court overruled the motion, and this is the first question to be determined on the appeal. It is earnestly maintained that the joinder of the defendants is improper; that for the one act of the servant he cannot be sued jointly with his master, and that his act must be treated either as that of an individual or that of an agent. In support of this position we are referred to several cases outside of this state so holding. But the decided weight of authority is the other way. See 15 Enc. Pl Prac. 560; 1 Thomp. Neg. 611. The conflict in authority on the question seems to be due largely to differences of the common-law forms of pleading, which no longer exist in this state. In Pom. Rem. & Rem. Rights, § 307, it is said "In general, those who have united in the commission of a tort to the person or to property, whether the injury be done by force or be the result of negligence or want of skill or of fraud and deceit, are liable to the injured party without any restriction or limit upon his choice of defendants against whom he may proceed. He may, at his option, sue all the wrongdoers in a single action, or may sue any one, or may sue each in a separate action, or may sue any number he pleases less than all. The fullest liberty is given him in this respect. The only exceptions are those few instances in which the tort from its very nature must be a separate act, impossible to be committed by two or more jointly. A sheriff and his deputy may be sued jointly for the trespasses and other wrongful acts done by the latter in his official capacity; the deputy because he actually commits the tort, and the sheriff because he is the principal." In a note to this a number of cases are collected, and among other illustrations these are given: "An action against principal and agent for negligence of the agent; *** an action against one partner for negligence by the firm." See, also, Bliss, Code Pl. § 83. This rule was followed by this court in Railroad Co. v. Dixon's Adm'x, 104 Ky. 608, 47 S.W. 615, and in Railroad Co. v. Winston's Adm'r (Ky.) 65 S.W. 13; and in the latter case the court, after quoting section 6, Ky. St., giving the right of action in such cases, said: "By the terms of this section, where death results from the negligent act a recovery may be had therefor against the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same. *** The plaintiff has a right to proceed severally or jointly against those who are liable for the injury inflicted resulting in death." We are therefore of opinion that the circuit court properly refused to remove the case to the federal court.

It is also earnestly insisted that there was no testimony showing negligence on the part of the engineer, Milligan, and that a peremptory instruction should have been given. The evidence on behalf of the appellee tended to establish these facts The engineer, fireman, and two brakemen were engaged in transferring cars from the main line to the side track in the yards of the company in Burgin, Ky. the intestate being one of the brakemen. The purpose was to leave a car on the side track. To do this, the engineer was required to back the cars in on the side track, there being a number of cars between the engine and the car intended to be left. The cars were provided with automatic couplers, which were operated by a bar extending out from the coupler to the side of the car, so that the brakeman could take hold of it while standing on the outside of the car and uncouple the cars without danger. The intestate was on the fireman's side of the engine, and went down on this side to uncouple the car in question. The other brakeman was on the other side of the train to turn the switch so that when the car was uncoupled it might be pushed in on the side track. The engineer could see this brakeman, but he could not see the intestate, Cook, who was on the other side of the train from him; and neither could his fellow brakeman. Cook communicated with the engineer by signals to the fireman, who reported them to the engineer. When Cook got to the car that was to be cut off, he signaled for slack, which meant that the engineer must back the train a little. The engineer did this. Cook gave the stop signal, and the engineer stopped after the train had only moved from three to six feet. The iron bar of the automatic coupler was bent, and would not work the coupler, so Cook went in between the cars after he got the slack to raise the pin in his hand, as it was his duty to do. While he was doing this, the other brakeman, who had turned the switch, and did not know of the difficulty Cook had met with in uncoupling the car, gave a signal to the engineer to come on, and the engineer, without a signal from Cook, or without knowing whether he was out or not, began backing the train down to the switch. In this way Cook was caught between the cars, and dragged some 20 feet, his breastbone and ribs were crushed and mashed, and he died in a few minutes. "The proper course of doing the work under the rules required the engineer not to move the train, when he knew a...