Clinger's Admx. v. C. & O. Ry. Co.

Decision Date15 April 1908
Citation128 Ky. 736
PartiesClinger's Admx. v. C. & O. Ry. Co.
CourtKentucky Court of Appeals

Appeal from Mason Circuit Court.

JAMES P. HARBESON, Circuit Judge.

From an order transferring the case to the Federal Court plaintiff appeals — Reversed.

THOS. R. PHISTER and ALLEN D. COLE for appellant.

WORTHINGTON & COCHRAN for appellee.

W. H. WADSWORTH of counsel.

OPINION OF THE COURT BY JUDGE NUNN — Reversing.

This appeal is from an order of the circuit court transferring this case to the federal court for trial. The plaintiff (appellant) instituted this action for $25,000 in damages against appellees for the alleged negligent killing of her husband, who, at the time he was killed, was crossing appellee's road on a street in the city of Maysville, Ky. She charged that it was by the joint gross negligence of the three appellees in the management and operation of its train of cars that resulted in the death of her husband; that appellee the Chesapeake & Ohio Railway Company of Kentucky, a Kentucky corporation, was the owner of the road, and had leased it to appellee Chesapeake & Ohio Railway Company of Virginia, a foreign corporation, and that appellee Shannon Hall was the conductor on the train that killed Clinger. The order of removal was made upon the petition of appellee the Chesapeake & Ohio Railway Company of Virginia, a foreign corporation. It was alleged in the petition, in substance, that it and the plaintiff were citizens of different states, and its codefendants the Chesapeake & Ohio Railway Company of Kentucky and Shannon Hall were not necessary nor proper parties to the action, and that they were made defendants for the sole purpose of preventing a removal of the cause to the federal court, thereby unlawfully and fraudulently depriving the petitioner of a right conferred upon it by the Constitution and laws of the United States; and averred that the allegations of negligence contained in plaintiff's petition as to its codefendants were untrue, and known to be so by her when this suit was brought. It was further alleged that the petition of plaintiff stated no cause of action at all against its codefendants, or either of them. The charge that its codefendants were not necessary nor proper parties to the action, and that her sole purpose in making them defendants was a fraudulent one to deprive it of its constitutional right, amounts only to a conclusion of the pleader. She could, possibly with the same propriety, have stated that they were necessary parties, and that the petition of appellee for removal was for the fraudulent purpose of depriving her of the right to a trial of the case at her residence; and this is also true of the allegation in the petition for removal that the negligence charged in her petition against its codefendants was untrue, and so known by plaintiff at the time she filed her petition. This allegation and the others referred to did not state any jurisdictional fact. The question of negligence or no negligence was an issue solely within the province of the jury to hear and determine. See Chesapeake & Ohio Railway Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, Cincinnati, New Orleans & Texas Pacific Railway Co. v. George Bohon, 200 U. S. 221, 26 Sup. Ct. 166, 50 L. Ed. 448, Rutherford v. Illinois Central R. R. Co., etc., 120 Ky. 15, 85 S. W. 199, 27 Ky. Law Rep. 397, and Illinois Central R. R. Co. v. Sheegog's Adm'r, 126 Ky. 252, 103 S. W. 323, 31 Ky. Law Rep. 691.

This brings us to the last proposition made in the petition for removal, to wit, that no cause of action at all was stated in plaintiff's petition against its codefendants or either of them. All the defendants were charged jointly with gross negligence which she alleged produced the death of her husband; and it is a well-established rule that, if the injury inflicted is produced by two or more wrongdoers, an action may be maintained by the person so injured either against one or against all of them. The liability of the wrongdoer is joint and several. The injured person may elect whether he will proceed against one or all of them. While several may be guilty of several distinct negligent acts, yet, if their concurrent effect is to produce an actionable injury, they are all liable therefor. The action, properly speaking, is not to recover for the negligent act or acts, but it is to recover damages for the injury which they produced. See Pugh v. C. & O. Ry. Co., 101 Ky. 77, 39 S. W. 695, 19 Ky. Law Rep. 149, 72 Am. St. Rep. 392, and the cases above cited. It was alleged in plaintiff's petition that the Chesapeake & Ohio Railway Company in Kentucky was a Kentucky corporation, and owned the road, but had leased it to the Chesapeake & Ohio Railway Company in Virginia, which operated it as its agent or lessee, and that Shannon Hall was the conductor of the train which was so negligently managed and operated that it produced the death of her husband while he was passing along a street in the city of Maysville. It does not appear in the record why the lower court made the transfer, but, from the brief of counsel for appellees, we presume that the lower court determined that the Chesapeake & Ohio Railway Company in Kentucky, although admitted to be the owner of the road, was not operating it, and that Shannon Hall was only the conductor, and by reason of his position he could not and it was not his duty to keep a lookout for persons at street crossings. Although it is alleged in the petition that the conductor, by gross negligence, so managed and operated the train that it resulted in the death of Clinger, we are asked to assume that this is not true because of our general knowledge of the position of a conductor on a train. We also have some general knowledge of the powers of a conductor, although his regular place upon a train is in the caboose. It may be that a conductor has all the power and authority over the management and operation of a train that his title implies, that is, the conductor and the controller of it. On the trial it may be made to appear that the train was being run at an excessive and dangerous rate of speed through the city of Maysville at the time Clinger was killed, and which caused his death, and that the conductor had some power or control over the matter of speed, and could have, by due care, prevented such a rate of speed, or the evidence might show that he was guilty of actionable negligence in some other respect; but if upon the trial it should appear from the evidence that plaintiff had no reasonable grounds to believe, when she filed her petition, that the conductor was negligent in any manner which produced the death of Clinger, then, under the rule in the cases of Ill. Cent. R. R. Co. v. Coley, 121 Ky. 385, 89 S. W. 234, 28 Ky. Law Rep. 336, 1 L. R. A. (N. S.) 370, Dudley v. Ill. Cent. R. R. Co., 127 Ky. 221, 96 S. W. 835, 29 Ky. Law Rep. 1029, and Underwood's Adm'r v. Illinois Central R. R. Co., 103 S. W. 322, 31 Ky. Law Rep. 595, the court should give a peremptory instruction in behalf of Shannon Hall, and the case should be removed to the federal court, unless the Kentucky corporation, Chesapeake & Ohio Railway Company in Kentucky, the owner of the road, is jointly liable with the Chesapeake & Ohio Railway Company in Virginia, for the negligent acts of any of the servants in charge of the train which produced the injury and death of Clinger.

The only question remaining to be determined is whether the Chesapeake & Ohio Railway Company in Kentucky is responsible in damages with the Chesapeake & Ohio Railway Company in Virginia for the death of plaintiff's intestate. Appellee's counsel virtually concede that, if the provisions of the charter of the Maysville & Big Sandy Railroad Company, which charter the Chesapeake & Ohio Railway Company in Kentucky took when it was incorporated, with reference to its powers to lease the road, are in full force and effect, under the authority of the case of McCabe's Adm'x v. Maysville & Big Sandy Ry. Co., 112 Ky. 861, 23 Ky. Law Rep. 2328, 66 S. W. 1054, the Chesapeake & Ohio Railway Company in Kentucky would be responsible jointly with the lessee, the Virginia corporation; but contend that this provision of the charter of the Maysville & Big Sandy Railroad Company stands repealed by section 573 of the Kentucky Statutes of 1903, which in effect says that all provisions of charters and articles of incorporation which are inconsistent with the provisions of chapter 32 of the Kentucky Statutes stand repealed to the extent of such conflict, and claims that the lease made by the Chesapeake & Ohio Railway Company in Kentucky to the Virginia corporation was made under the provisions of section 769, Ky. St. 1903. The first part of this section deals with the construction of spurs, tracks, or branches of roads by railroad companies organized in Kentucky, and also authorizes such corporations to purchase the property and franchise of any other railroad company not a competing or parallel line, then authorizes such corporations to sell its franchise and property to any other company not a competing or parallel line, or not otherwise prohibited by law to purchase; and, after speaking of other matters not germane to the matter under consideration, the section closes with these...

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