Davenport v. Southern Ry. Co.

• Decision Date: 20 August 1903
• Citation: 124 F. 983
• Parties: DAVENPORT v. SOUTHERN RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

124 F. 983

DAVENPORT v. SOUTHERN RY. CO. et al.

United States Circuit Court, D. South Carolina.

August 20, 1903

Haynsworth Parker & Patterson, for plaintiff.

T. P Cothian, for defendants.

SIMONTON Circuit Judge.

This case comes up on a motion to remand. The action was originally brought in the court of common pleas for Greenville county, S.C., against the Southern Railway Company, a body corporate of the state of Virginia, and Richard Joel and William Jones, citizens of South Carolina. The cause of action was for personal injuries to the plaintiff's intestate, resulting in her death. She was killed in collision with a hand car of the defendant company operated by the other defendants. The accident, as detailed in the complaint, occurred in this way: Many years ago a spur or side track was constructed from the main line of the Southern Railway at Piedmont, at a point near the mills of the Piedmont Manufacturing Company. The side track was constructed over lands of the manufacturing company, and is used by the Southern Railway Company as licensee. It is used only occasionally, hauling freight to and from the mills. On this track is a trestle, over which is a plank walkway, the width of the track, which is habitually used, and has been used for very many years, by the people of the town of Piedmont. On the day of the accident, plaintiff's intestate was on this walkway, proceeding toward the mill. She had nearly crossed it, when from behind a bend in a deep cut, a short distance away from her, a hand car, heavily loaded with cross-ties, appeared, coming at great speed down an incline at that point. She used every effort to escape but could not do so. She was struck by the hand car, was precipitated over the trestle, and lost her life. This hand car was operated by, and was under the care and control of, the defendants Joel and Jones, servants of the Southern Railway Company. It has been carried by them up the side track, and had been heavily loaded with cross-ties. On its return they pushed the car to a point where it struck the down grade leading to the trestle, and at this point they negligently and recklessly turned the car loose without getting on it, and without taking any precautions whatever to control it, and without making any effort to see if any one was on the walkway on the track. The car went forward with great speed and violence, striking the plaintiff's intestate, and causing her death. The complaint charges that this conduct of these defendants was reckless, willful, and malicious, and in total disregard of the safety of the public; that the defendants, in handling the car as aforesaid, and in allowing it to escape and kill plaintiff's intestate, were negligent; that the death of plaintiff's intestate occurred through the joint and concurrent carelessness, negligence, recklessness, wantonness, and willfulness of the defendants, as aforesaid.

The ground upon which the Southern Railway Company sought the removal of the cause is that there is in the pleading a separable controversy with it.

It will be observed that the only charge against the Southern Railway Company is because of the acts of these agents of it, and of them alone, committed in the absence of any official, or of any other agent of that company; that the acts of these agents are characterized as reckless, willful, and malicious. Indeed, the whole charge of the complaint seems to be for the acts of these two men, Joel and Jones. After stating that these two men had control of the car, the complaint in the ninth paragraph says: 'That the conduct of the defendants (these two men) in turning loose the said hand car, and in allowing it to run loose, * * * was reckless, willful, and malicious. ' In the tenth paragraph it says: 'That the defendant, in handling the car, as aforesaid (that is these two men), and in allowing it to kill ...