Dudley v. Illinois Cent. R. Co.

• Decision Date: 16 October 1906
• Citation: 127 Ky. 221,96 S.W. 835
• Parties: DUDLEY v. ILLINOIS CENT. R. CO. ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 835

127 Ky. 221

DUDLEY v. ILLINOIS CENT. R. CO. ET AL.

Court of Appeals of Kentucky.

October 16, 1906

Appeal from Circuit Court, Caldwell County.

"To be officially reported."

Action by William Dudley against the Illinois Central Railroad Company and others. From an order dismissing the suit as to defendant Calvin Mitchell, and sustaining the application of the defendant railroad company to remove the case to the federal court, plaintiff appeals. Affirmed.

Hendrick Miller & Marble, for appellant.

Jno. C. Gates, Trabue, Doolan Cox, J. M. Dickinson, and P. H. Darby for appellees.

CARROLL C.

The appellant, who was a brakeman on one of appellee's freight trains, brought this suit against the appellee company and Calvin Mitchell to recover damages resulting from injuries sustained by being struck by a waterspout attached to a tank operated by the defendant company near Cerulean Springs. The petition averred: "That the defendant Calvin Mitchell was in the employ of the company, and was acting as its pumper or superintendent or supervisor or manager of pumps, tanks, and all the appliances and water tanks, along its road; that he had charge and management of the pumps, tanks, cranes, chains, posts, and all appliances of the pumping stations which furnished water to the engines of the company, and was paid by the company to do this work under its orders; that he was especially and directly in charge and control of the tank and crane and spout and pumping station and all the appliances thereof at Cerulean Springs, and of the supplying of water to the engines, and was actually managing and controlling said tanks, pump, spout and appliances; that the company and Mitchell, as its agent and servant in charge of said tank, had carelessly wrongfully and negligently placed the post, pillar and support supporting the spout and crane which was used in supplying the engine with water, dangerously and unnecessarily near to the track, making the position of same improper, defective and dangerous, because of its proximity to the track, and had negligently permitted the chains, spout and other appliances of the tank to be defective and out of repair, and to hang in dangerous proximity to the top of the train, so as to endanger the lives of the employés engaged in discharging their duties; that by the negligence of the defendant company and Mitchell in placing the post, pillar and support so near the track, and by their negligence in suffering and permitting the support and connections of the tank to be in such condition as to put the spout in dangerous proximity to the train, the plaintiff was struck by the spout upon the head and injured." The petition also contained other allegations necessary in cases of this character. In due time the railroad company, a foreign corporation, filed its petition and bond for removal of the cause to the United States Circuit Court. This motion the trial court overruled. Upon a trial of the case, at the conclusion of the evidence for plaintiff, now appellant, the defendant Mitchell entered a motion for a peremptory instruction, which was sustained by the court, and thereupon the jury returned a verdict for Mitchell. When the action against Mitchell was terminated in this way, the defendant company renewed its motion for removal, and it was sustained by the court. Appellant complains of the action of the trial court in giving the peremptory instruction and in removing the cause.

The petition stated a good cause of action against both the defendants, and the court properly refused to transfer the action when the motion was first made. I. C. R. R. v Coley, 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L.R.A. (N. S.) 370; Pierce's Adm'r v. I. C. R. R., 86 S.W. 703, 27 Ky. Law Rep. 801. Whether the transfer was proper, upon the conclusion of the evidence for appellant, depends upon the question whether or not Mitchell was joined as defendant in good faith. The mere fact that the trial judge sustained a peremptory instruction on behalf of Mitchell is entitled to some weight, but is not in itself conclusive evidence that Mitchell was not joined in good faith, or that appellant failed to make out a case against Mitchell. To determine therefore whether or not the action of the trial court was proper, we will examine the evidence introduced by appellant, and determine from it whether or not the averments of the petition stating a good cause of action against Mitchell were sustained. The substance of the allegations against Mitchell are that he was directly in charge and control of and actually managed and controlled the tank, crane, spout, pumping station, and all appliances connected therewith, and that as agent and servant of the company he carelessly and negligently placed the pillars, supporting the spout and crane, dangerously and unnecessarily near the track, making the same improper, defective, and dangerous because of its proximity to the track; and that the company and Mitchell negligently permitted the chains, spout, and other appliances of the tank to be defective and out of repair, and to hang in dangerous proximity to the top of the cars. The evidence for plaintiff was to the effect that Mitchell was in charge of the tank and pump of the defendant on the Evansville & Hopkinsville Division, which included the tank at Cerulean Springs, and hired the pumpers, and that the tank at Cerulean Springs was some two feet nearer the track than the tank at Princeton on the same line; that Mitchell was working under one Noles, and had been seen repairing the tanks and machinery attached thereto; that the water pipe from the tank was the instrument that struck the appellant and knocked him off the train; that it was Mitchell's duty to examine the tanks and pumps at each station, and keep them in running order; and that the pipe that...