Gray v. Oregon Short Line R. Co.

• Decision Date: 18 January 1930
• Docket Number: No. 1537.,1537.
• Citation: 37 F.2d 591
• Parties: GRAY v. OREGON SHORT LINE R. CO.
• Court: U.S. District Court — District of Idaho

37 F.2d 591 (1930)

GRAY v. OREGON SHORT LINE R. CO.

No. 1537.

District Court, D. Idaho, S. D.

January 18, 1930.

Wm. M. Morgan and E. B. Smith, both of Boise, Idaho, for plaintiff.

Geo. H. Smith, of Salt Lake City, Utah, and H. B. Thompson and L. H. Anderson, both of Pocatello, Idaho, for defendants.

CAVANAH, District Judge.

On September 30, 1929, plaintiff instituted this suit in the state district court to recover damages against the defendants on account of their joint negligence in the operation of a train of cars at a crossing in Meridian, Ada county, Idaho, in consequence of which plaintiff charges that he has suffered personal injury. On petition of defendants, the case was removed to this court, and the plaintiff in turn here filed his motion to remand. The ground of the removal, as alleged in the removal petition, is that the defendant Smith is fraudulently joined as a party to the cause for the purpose of defeating the other defendant in its right of removal.

The substance of the motion to remand is that this court has no jurisdiction, for the reason that the action is based upon the joint acts of negligence and omissions of duty of defendants, and that the plaintiff and defendant Smith are both residents of Idaho, and that the suit was properly brought in the state court, which has exclusive jurisdiction of the action. The plaintiff answers defendants' petition for removal, and takes issue with them as to the contention made, but does not offer any evidence or file any affidavits in support of his answer. Defendants presented affidavits in support of their petition of removal, and thereupon the motion to remand was submitted upon the pleadings and the record referred to.

The issue here is to be determined upon the record referred to, which presents one of fact as to whether or not there appears from the allegations of the complaint, and the proofs offered on the motion, joint acts of negligence and liability of the defendants. If not, then this court would have jurisdiction of the case, as the jurisdictional amount and the diversity of citizenship of the defendant company and the plaintiff appears. On the motion plaintiff stands upon the allegations of his complaint, and does not attempt to fortify it by proof, although the grounds set forth in defendants' petition for removal were established by affidavits and stand undisputed so far as the proof on the motion is concerned.

What then are the allegations of the complaint in regard to the charge that the acts of negligence and omission of duty were joint? It is there stated that the crossing where the accident occurred, on January 10, 1929, was and has been for some time a dangerous and hazardous one, due to the heavy railroad and highway traffic, which required the installation and maintenance there of a proper warning signal device for the purpose of warning persons traveling on the highway of impending danger of approaching cars at the crossing, and that the defendant company owed the duty to the traveling public of installing and maintaining such signal at the crossing; that at the time of the accident, and for more than one year prior thereto, the defendants well knew of the dangerous condition of the crossing and need of a proper warning signal, and, although the defendant company, knowing such to be the fact, and the Public Utilities Commission of the state, in the exercise of its proper functions, having for a long time prior to the accident ordered the defendant company to install and maintain a proper signal at the crossing, it, in violation of the order and its duty, neglected and refused to install the same until after the accident; that on January 10, 1929, at about 12:30 a. m., and for...