On the
12th day of January, 1895, the plaintiff filed his petition
in the Kenton circuit court, at Independence, Ky., against
the Maysville & Big Sandy Railroad Company, Chesapeake & Ohio
Railway Company, C. E. Acra, George Shumate, Henry Thien
John Shappart, and W. W. Gaynor, defendants, in the following
words:
'Defendant
the Maysville & Big Sandy Railroad Company is, and at the
time hereinafter stated was, a corporation owning a
railroad extending into the county of Kenton, and railway
tracks, workshops, roundhouse, railway yard, and other
appurtenances in said county. Defendant the Chesapeake &
Ohio Railway Company is, and at the times hereinafter
stated was, a foreign corporation, and possessed, used, and
operated said railroad, railway tracks, workshops
roundhouse, railway yard, and other appurtenances under a
lease from said the Maysville & Big Sandy Railroad Company,
which lease was made without legislative or other
authority; and said the Chesapeake & Ohio Railway Company
now so operates said railway. On the night of April 28,
1894, L. A. Hukill was the servant of said the Chesapeake &
Ohio Railway Company, employed by it as one of the crew of
a switching locomotive engine in the yard of said railroad
in Kenton county; and while said Hukill was then and there,
as such servant, at work upon and about a train of freight
cars of said the Chesapeake & Ohio Railway Company, in said
yard, and on said railway, he was, by reason of gross and
wanton negligence of all the defendants, struck by a board
projecting from the roof of one of another train of freight
cars of said the Chesapeake & Ohio Railway Company, then
and there in the possession, custody, and control of said
corporation, and on another and adjoining track of said
railroad, and thereby said Hukill was violently knocked
under the train of cars upon and about which he was at
work, and was run upon and over by said train, and thereby,
and by being so knocked from said car, he was so injured in
his person that he soon thereafter died thereof. Said
projecting board was part of the roof of said car, from
which the same projected. Said projecting board was, and
long before said decedent was injured as aforesaid had
been, a defect in said car, from which it projected, that
endangered the bodies and lives of said decedent and other
servants of said the Chesapeake & Ohio Railway Company.
Said car, with said board so projecting therefrom, was, in
said defective, unsafe, and dangerous condition, by the
defendants, with gross and wanton negligence, placed where
the same was when said decedent, Hukill, was struck by said
board as aforesaid. With gross and wanton negligence, all
the defendants permitted said defective car to remain where
the same was, in its said defective, unsafe, and dangerous
condition, until said decedent was injured
as aforesaid; and, with gross and wanton negligence, all
the defendants failed to remedy said defect in said car
before said Hukill was injured thereby. The defendants
Acra, Shumate, Thien, and Shappart were, at all times
aforesaid, in said railway yard, which was then and there
an inspecting station of said railway, servants of said the
Chesapeake & Ohio Railway Company, employed by it in said
yard, and at said inspecting station, as car inspectors and
repairers; and, as such servants, said Acra, Shumate,
Thien, and Shappart had inspected said car, from which said
board projected as aforesaid, long before said decedent was
thereby knocked from his place, and under said train, as
aforesaid, and before said decedent was injured as
aforesaid, and for a time long enough theretofore to have,
by the exercise of ordinary care, repaired said defect, and
prevented said injury to said Hukill. Said Acra, Shumate,
Thien, Shappart, the Chesapeake & Ohio Railway Company, and
also their codefendants, well knew of said defect in said
car; and, before said Hukill was injured as aforesaid, the
defendants Acra, Shumate, Thien, Shappart, Gaynor, and the
Chesapeake & Ohio Railway Company, and each of them, could,
by the exercise of ordinary care, have known of said defect
in said car, and could, by the exercise of such care, have
remedied and repaired said defect, and prevented said
injury to said decedent. Defendant W. W. Gaynor was, at the
times aforesaid, a brakeman upon the train in which was
said defective car, and he was then and there the servant
of defendant the Chesapeake & Ohio Railway Company, and was
by his said employer then and there charged with the work
and duty of ascertaining and knowing the condition of said
car and train, and to either repair said defect in said
car, if he could do so, or, if he could not do so, then to
report the same upon the arrival of said train and car in
said railway yard. And all the defendants, by their joint
gross and wanton negligence, failed to remedy or repair
said defect; and, by their joint gross and wanton
negligence, all the defendants caused said injury to and
death of said decedent. Said L. A. Hukill did not, before
he was injured as aforesaid, know that said board by which
he was struck projected from said car, nor did he know that
there was any defect in said car; and he could not, before
he was injured as aforesaid, by the use of ordinary care
have known that said board did project from said car, or
that said car was in any wise defective. By the death of
said decedent his estate was damaged in the sum of fifty
thousand dollars. On the . . . day of May, 1894, plaintiff
was, in and by the county court of Kenton county, Kentucky,
duly appointed administrator of the estate of said
decedent, and on the same day he duly qualified as such in
said court, and he still is such administrator. Plaintiff
prays judgment for fifty thousand dollars and costs.'
In its
petition for removal the Chesapeake & Ohio Railway Company
made the necessary averments as to the amount in controversy
and the diverse citizenship of itself and the plaintiff
averring that there was, in said suit, a controversy which
could be fully determined as between the plaintiff and the
petitioner. 'Your petitioner further says that suit upon
the same cause of action hereinbefore stated was instituted
in the Kenton circuit court at Independence, Kentucky, on May
16, 1894, and that, in said suit, the Maysville & Big Sandy
Railroad Company, the Chesapeake & Ohio Railway Company, C.
E. Acra, George W. Shumate, Henry Thien, and John Shappart
were made joint defendants. Thereafter on the 16th day of
October, 1894, at a term of Kenton circuit court, at
Independence the plaintiff discontinued said action as to
George W. Shumate, C. E. Acra, Henry Thien, John Shappart,
and the Maysville & Big Sandy Railroad Company. Petitioner
says that the discontinuance as to the said Maysville & Big
Sandy Railroad Company, C. E. Acra, George W. Shumate, Henry
Thien, and John Shappart was absolute and final, and without
the reservation of any right on part of said plaintiff to
again institute a suit upon the same cause of action against
the said Maysville & Big Sandy Railroad Company, C. E. Acra,
George W. Shumate, Henry Thien, and John Shappart, or either
or any of them. And petitioner says that, by reason of the
absolute discontinuance of said cause as to the said
Maysville & Big Sandy Railroad Company, C. E. Acra, George W.
Shumate, Henry Thien, and John Shappart, the plaintiff is
barred from any further proceedings against them, or either
of them, upon said cause of action; and that said plaintiff
has no right or authority in law to now prosecute its cause
of action against the said Maysville & Big Sandy Railroad
Company, C. E. Acra, George W. Shumate, Henry Thien, and John
Shappart, or either of them. Your petitioner says that, upon
the discontinuance of said suit, on the 16th day of October,
1894, as to the said Maysville & Big Sandy Railroad Company,
and the said Acra, Shumate, Thien, and Shappart, it filed in
the Kenton circuit court, at Independence, a petition and
bond for removal of said case to the United States circuit
court for the district of Kentucky, which said petition for
removal alleged that the said Maysville & Big Sandy Railroad
Company, and said Acra, Shumate, Thien, and Shappart were
fraudulently and improperly joined as parties defendant for
the sole purpose of defeating the right of petitioner to
remove said case to the United States circuit court; that
said case was transferred to the United States circuit court
for the district of Kentucky; and that the said plaintiff
appeared in said United States circuit court, and moved the
court to remand said case; and that the said United States
circuit court overruled said motion to remand, and found, as
a fact, that said Maysville & Big Sandy Railroad Company, C.
E. Acra, George W. Shumate, Henry Thien, and John Shappart
were fraudulently and improperly joined for the purpose of
evading the jurisdiction of the United States court. And
thereafter the plaintiff discontinued said case in said
United States circuit court, and thereafter, on January 12,
1895, filed the present suit in this court. Your petitioner
says that the said Maysville & Big Sandy Railroad Company
was, at the time of the institution of said suit, on May 16,
1894, and still is, a corporation organized under the laws of
the state of Kentucky, and of no other state; and that the
defendants C. E. Acra, G. W. Shumate, Henry Thien, and John
Shappart were, at the time of the institution of this suit,
and still are, residents and citizens of the state of
Kentucky; and that the said Maysville & Big Sandy Railroad
Company, and the said Acra, Shumate, Thien, and Shappart were
fraudulently and improperly joined as parties defendant,
because of the fact...
