Padgett v. Chicago, RI & P. Ry. Co.

• Decision Date: 15 December 1931
• Docket Number: No. 445.,445.
• Citation: 54 F.2d 576
• Parties: PADGETT v. CHICAGO, R. I. & P. RY. CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

54 F.2d 576 (1931)

PADGETT v.CHICAGO, R. I. & P. RY. CO. et al.

No. 445.

Circuit Court of Appeals, Tenth Circuit.

December 15, 1931.

W. P. Morrison, of El Reno, Okl. (W. A. Ledbetter, H. L. Stuart, R. R. Bell, and E. P. Ledbetter, all of Oklahoma City, Okl., and Albert Lee Morrison, of El Reno, Okl., on the brief), for appellant.

Thos. H. Owen, M. A. Looney, Paul N. Lindsey, and J. Fred Swanson, all of Oklahoma City, Okl., for appellees.

Before LEWIS and McDERMOTT, Circuit Judges, and SYMES, District Judge.

LEWIS, Circuit Judge.

Padgett, a citizen and resident of the state of Oklahoma, instituted this suit in the district court of that state against the Chicago, Rock Island and Pacific Railway Company, an Illinois and Iowa corporation, the Traders Compress Company, a Delaware corporation, and Charles Dossey and H. A. Sparkman, citizens and residents of Oklahoma.The action was for recovery of damages on account of personal injuries received by Padgett while he was in discharge of his duties as brakeman on one of the railway company's freight trains.Dossey was conductor in charge of said train.Sparkman was superintendent of a compress plant owned by the Traders Compress Company at Anadarko, Oklahoma.It is alleged that plaintiff, at the time of the injury, was under the orders of Dossey, and the train crew was engaged in switching cars onto a side track for use by the compress company at its plant; that a guy wire attached to the smoke stack of the compress plant passed over the switch track that led to the compress and was so erected and maintained that it did not clear a man on top of the railway cars, thus producing a dangerous condition to the life and limb of railway employees whose duty it was to be on top of said freight train; that said wire had been so put up and maintained by the compress company and Sparkman, its superintendent, and its erection and maintenance in said dangerous condition was negligence; that the railway company and Dossey had known for a long time the position of said wire and the dangerous condition thereby brought about to railway employees in putting cars onto and taking them from said track, and that the said negligence of the Traders Compress Company and Sparkman in so erecting and maintaining the guy wire, and the negligence of the railway company and Dossey in furnishing to plaintiff a dangerous place in which to work and in failing to inform and warn him of the danger were joint and concurrent and the proximate cause of the accident and injury suffered by plaintiff, in that, while plaintiff was on a string of freight cars moving over said side track in the discharge of his duties as brakeman and at the direction of Dossey as conductor, he was struck by said guy wire and knocked from the cars whereby he received permanent and severe personal injuries.

The railway company and Dossey filed their answers to the complaint in the state court, and thereafter the Traders Compress Company filed its petition for removal of the suit to the federal court, which was granted.The petition for removal alleged a separable controversy between plaintiff and the compress company.It also alleged that Sparkman had nothing to do with the erection of the guy wire and no right or duty to remove it, that under his contract of employment there could be no joint liability of the Traders Compress Company and Sparkman, and that the joinder of Sparkman was a legal fraud on the Compress Company to prevent it from exercising its right of removal, and that Sparkman was fraudulently joined for that...