Lyon v. ILLINOIS CENTRAL RAILROAD COMPANY
| Decision Date | 27 April 1964 |
| Docket Number | Civ. A. No. 1897. |
| Citation | 228 F. Supp. 810 |
| Parties | Kerry N. LYON, Plaintiff, v. ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, Defendant. |
| Court | U.S. District Court — Southern District of Mississippi |
Melvin & Melvin, Laurel, Miss., for plaintiff.
E. R. Alley, William M. Deavours, Laurel, Miss., for defendant.
The plaintiff sued the railroad and its section foreman for damages for negligence and consequent personal injuries sustained by him on the evening of September 19, 1961, at a public railroad crossing in the city of Laurel, Mississippi. It was a dark and misty evening when a freight train of the railroad moving along its tracks was not seen by the plaintiff and was run into and against by the plaintiff in his automobile. The plaintiff said that he could not see the freight train which was the same color as the street, and that the flashing signal at this crossing was not working by reason of the negligence of the railroad and its said employee who had the responsibility for inspecting and keeping said signal device in proper operation.
The case proceeded to trial in the state court, and at the conclusion of plaintiff's testimony the court sustained a motion of the individual defendant for a dismissal of the suit as against him. This dismissal was over the protest and strenuous objection of the plaintiff. The railroad thereupon promptly gave notice of its intention to file a petition to remove the case to this court. The petition for such removal was timely presented in due form, and was accompanied by a $2,000.00 surety bond approved by the court. The plaintiff has moved to remand this case to the state court as not being removable because the removal of the resident defendant from the case by the state court was not done with his approval but over his objection. 28 U.S.C.A. § 1446 (b) among other things provides: "If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." The plaintiff insists that the involuntary dismissal of the resident defendant does not remove him from the case, but that contention is untenable insofar as this proceeding is concerned. A plaintiff may nonsuit a case against the resident defendant, or...
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