English v. Atlantic Coast Line R. Co.

• Decision Date: 09 November 1948
• Docket Number: 2009.,No. 2008,2008
• Court: U.S. District Court — District of South Carolina
• Parties: ENGLISH v. ATLANTIC COAST LINE R. CO. et al. HYATT v. ATLANTIC COAST LINE R. CO. et al.

80 F. Supp. 681

ENGLISH v. ATLANTIC COAST LINE R. CO. et al.

HYATT v. ATLANTIC COAST LINE R. CO. et al.

Nos. 2008, 2009.

United States District Court E. D. South Carolina, Florence Division.

November 9, 1948.

Mozingo & Watts and C. R. Parrott, all of Darlington, S. C., for plaintiffs.

Woods & Woods, of Marion, S. C., and Dargan, Paulling & James, of Darlington, S. C., for defendants.

WARING, Chief Judge.

The plaintiffs in the two above entitled cases were riding in an automobile which came into collision with a train of the Atlantic Coast Line Railroad Company, W. W. Blackwell being the engineer of the said train. The collision occurred in the town of Timmonsville, situated in this district, on the morning of May 26, 1948. The complaints in the two causes are substantially the same, both plaintiffs alleging severe and serious injuries as a result of the collision and alleging that the injuries suffered were the result of acts of negligence, carelessness, recklessness, wilfulness, wantonness, and unlawfulness of the defendants. The acts of negligence complained of fall generally into two classes. One class is made up of allegations of negligence in the operation of the train, such as operating same at a high speed, failing to keep a proper lookout, to give signals or warnings and like acts of negligence. The other specifications relate to the condition of the crossing where the collision took place complaining that the crossing was so situated and constructed that the view of approaching trains was obscured by reason of buildings, telephone and telegraph poles, shrubbery and other obstructions and that there was a failure to erect and maintain warning signals and devices.

The defendant Atlantic Coast Line Railroad Company is a non-resident corporation. The defendant W. W. Blackwell, the engineer of the colliding train is a resident of South Carolina, as are both plaintiffs. The defendant railroad company has removed the cases to this court from the Court of Common Pleas of Darlington County, South Carolina, where it was instituted, on the ground of diversity of citizenship and the plaintiffs move to remand. The removant's position may be briefly stated as follows: That the specifications of negligence create two distinct classes of delicts: The first class consists of acts of negligence of operation, which were properly chargeable to the engineer and likewise to the railroad company under the doctrine of respondent superior, but the second class of acts of negligence can be chargeable only to the railroad company, since one cannot charge the engineer with the duty of maintaining the safety of the crossings. The argument is that this presents separable controversies and that one action being entirely against the railroad company, that company has a right to remove the cause to this court which would have jurisdiction of the action as solely between the plaintiffs and the non-resident defendant and all other issues would automatically be removed along with it. See Title 28 U.S.C.A. § 1441, formerly § 71 and decisions under the earlier statutes as follows. Hamilton v. Empire Gas & Fuel Co., 8 Cir., 297 F. 422, 429; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Brooks v. Clark, 119 U.S. 502, 7 S.Ct. 301, 30 L. Ed. 482; Connell v. Smiley, 156 U.S. 335, 15 S.Ct. 353, 39 L.Ed. 443.

On the other hand the plaintiffs take the position that they allege joint and concurrent acts of negligence and that while it is true that some of the specifications may be construed as several and distinct acts by one or the other of the defendants, nevertheless they have so framed their complaint as to make this a joint cause of action. All of these specifications are set out in Article 9 of the complaint and Article 10 is as follows: ...