Prince v. Illinois Cent. R. Co.

• Decision Date: 21 November 1899
• Citation: 98 F. 1
• Parties: PRINCE v. ILLINOIS CENT. R. CO. et al.
• Court: United States Circuit Court, District of Kentucky

98 F. 1

PRINCE v. ILLINOIS CENT. R. CO. et al.

United States Circuit Court, D. Kentucky.

November 21, 1899

Bishop & Hendricks, for plaintiff.

Quigley & Quigley, for defendants.

EVANS District Judge.

The plaintiff, a citizen of Kentucky, was a brakeman or switchman employed by the Illinois Central Railroad Company, and was hurt, while coupling cars for that company, at Paducah, Ky. This action to recover damages therefor was brought in the state court by the plaintiff against the railroad company, W R. Carroll, and E. P. Smith. The railroad company is a citizen of Illinois. W. R. Carroll and E. P. Smith are citizens of Kentucky. The plaintiff's petition shows his own relation to the railroad company at the time of the injury, which occurred while he was in the discharge of the duties of his position. While coupling cars, as he alleges, his foot was caught in a frog, and he claims that this was because the frog was open, and not properly blocked or plugged. He claims that this failure to block or plug the frog was the result of the negligence alike of the railroad company and of its two other employes, viz. the defendant Carroll, who was a section boss, and defendant Smith, who was a yard master. He also claims that the individual defendants are jointly liable with the railroad company under these circumstances. The plaintiff bases his claim on joint liability upon the provisions of section 780 of the Kentucky Statutes, which reads as follows: 'Before the first day of January, 1894, every company shall adjust, fix or block the frogs on its tracks to prevent the feet of its employes from being caught therein. ' Section 793 provides that any company failing to comply with, or violating, or permitting any of its employes or agents to violate, the provisions of section 780, shall, in addition to subjecting itself to damages, be guilty of a misdemeanor. The railroad company removed the action to this court, stating in its petition therefor two grounds, viz.: First, that there is a separable controversy, which can be fully determined between it and the plaintiff without the presence of either Carroll or Smith as parties; and, second, that those two defendants were made such in fraud of the jurisdiction of this court and solely for the purpose of preventing a removal of the action to it. It will be observed that sections 780 and 793 of the Kentucky Statutes refer entirely to the railroad company,-- to its duties and liabilities. They seem to be altogether punitive in character, and to create no civil liability which did not already exist. They create no liability whatever, civil or criminal, as against employes. On the motion to remand, made by the plaintiff, the court pursuant to the practice required by the cases of Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct 1003, 33 L.Ed. 473, and Hukill v. Railroad Co. (C.C.) 72 F. 745, heard evidence upon the second ground of removal stated above. It was shown clearly, distinctly, and without doubt that neither Smith nor Carroll was present at the time of the injury; that both were at their respective offices or headquarters at points quite remote from the place where the injury was inflicted; that neither one of them had any connection with it; that neither of them had any sort of management of the...