Cox v. Early

• Decision Date: 20 June 1933
• Docket Number: No. 9659.,9659.
• Citation: 65 F.2d 891
• Parties: COX v. EARLY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 891 (1933)

COX v. EARLY et al.

No. 9659.

Circuit Court of Appeals, Eighth Circuit.

June 20, 1933.

W. R. Donham, of Little Rock, Ark. (W. W. Shepherd, of Little Rock, Ark., on the brief), for appellant.

Thomas S. Buzbee, of Little Rock, Ark. (A. S. Buzbee and H. T. Harrison, both of Little Rock, Ark., on the brief), for appellees.

Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District Judge.

WOODROUGH, Circuit Judge.

There was a collision in the nighttime between the automobile operated by the plaintiff's intestate and a Rock Island switch engine on a crossing in the city of Little Rock, and the plaintiff, living in Arkansas, sued the railroad company and its resident hostler engineer jointly in the state court for the resultant death of her husband, setting up that her husband stopped, looked, and listened and was careful, but the engine speeded on to the crossing without bells, lights, whistles, or lookout. The nonresident railroad company removed to the federal court, claiming that the hostler engineer who was operating its engine was fraudulently joined to defeat the jurisdiction, and that there was no honest intention to make a case against him. The plaintiff filed her motion to remand which was denied by the trial court, and on the trial of the case there was a directed verdict for the defendants. The plaintiff appeals, and her first assignment of error is "over-ruling plaintiff's motion to remand this cause to the state court for trial."

As no bill of exceptions preserving the testimony taken on the motion to remand has been brought up, we consider only the sufficiency of the petition for removal to sustain the jurisdiction. McCuing v. Bovay (C. C. A.) 60 F.(2d) 375.

The gist of the petition for removal is that the plaintiff's intestate, driving his automobile, approached the railroad track where the collision occurred, with full knowledge that he was approaching a railroad track, rapidly, without slackening his speed, without stopping or looking or listening for an approaching train, while the engine was on the crossing or backing over it. That his automobile struck the front end of the switch engine and "caused the collision," resulting in his death. That if he had taken any precaution whatsoever to look or to listen for the approach of the switch engine he could have discovered its approach in time to have avoided the collision by the exercise of any care whatsoever in his own behalf. That the switch engine was running slowly, with bell ringing and efficient electric lights burning, both at the front and the rear end, and that the hostler engineer was keeping a proper lookout. In other words, that the plaintiff's intestate negligently ran his automobile into such violent collision with the moving switch engine that he was killed, and so the whole occurrence was accounted for. The petition for removal does not deny, but by fair implication concedes, that the resident defendant was the railroad company's employee operating the engine at the time of the collision; but it is charged that the plaintiff's...