Robbins v. Pennsylvania Co.

• Decision Date: 11 October 1917
• Docket Number: 2972.
• Citation: 245 F. 435
• Parties: ROBBINS v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Sixth Circuit

245 F. 435

ROBBINS v. PENNSYLVANIA CO.

No. 2972.

United States Court of Appeals, Sixth Circuit.

October 11, 1917

Charles Koonce, Jr., and Guy T. Ohl, both of Youngstown, Ohio (McKain & Ohl, of Youngstown, Ohio, of counsel), for plaintiff in error.

Fred J Heim, of Youngstown, Ohio (Arrel, Wilson, Harrington & De Ford, of Youngstown, Ohio, of counsel), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

This was an action by an administratrix against the Pennsylvania Company to recover damages for alleged negligence in causing the death of Henry J. Robbins. By an amended petition the charge of negligence was made jointly against both the Pennsylvania Company and its engine driver, John Lang, who was in charge of the locomotive through which decedent received his injuries. Lang made separate answer, admitting that he was operating the engine at the time of the injuries, but denying the negligence charged against him, and alleging distinct acts of negligence on the part of decedent. The company sought and obtained removal of the cause to the court below, on the grounds of diversity of citizenship, as between plaintiff and the company, and also separable controversy, and alleging further that the recovery originally claimed was for $2,500 that by the amended petition this sum was increased to $25,000, and that the plaintiff had fraudulently and improperly joined Lang, a citizen and resident of the state of Ohio, for the sole purpose of defeating jurisdiction of the United States court and so preventing removal. Motion to remand, supported by affidavit, was overruled. Separate answer was subsequently filed by the company, admitting that Lang was in its employ in the capacity of a locomotive engineer and in charge of the locomotive in question, and alleging, among other things, the exercise of due care towards decedent and acts of contributory negligence on his part at the time of the injury. The case was heard on evidence offered by both sides; at the close of plaintiff's evidence, and again after all the evidence had been received, the company moved that a verdict be directed in its favor, which in each instance was overruled the cause was submitted to the jury upon an extended charge of the court, and verdict was rendered for the company. Motion for new trial was overruled. Five assignments are relied on under the writ of error.

1. It is claimed that the court erred in denying the motion to remand. It is enough to say of this that, if the company can be made liable under the issues and the facts presented, it is because of the relation of master and servant which existed between it and the engineer in charge of the locomotive. The injury and death occurred in Ohio; and, according to the rule of decision prevailing in the state, a joint action cannot be maintained against a master and servant where the master's liability arises solely under the doctrine of respondeat superior. French v. Construction Co., 76 Ohio St. 509, 81 N.E. 751, 12 L.R.A.(N.S.) 669. It may be well to point out one of the reasons expressed in the opinion (76 Ohio St. 518, 81 N.E. 752):

'It is, and since the decision by this court of Clark v. Fry, 8 Ohio St. 358 (72 Am.Dec. 590), has been, the settled rule and law in this state that a joint action cannot be maintained against master and servant, in any case where the master's liability for the wrongful and negligent act of the servant arises solely and only from the legal relationship existing between them under the rule of respondeat superior, and not by reason, or because of, the master's personal participation in such wrongful or negligent act.'

The rule thus existing in the state is controlling here. Ches. & Ohio Ry. v. Cockrell, 232 U.S. 146, 152, 153, 34 Sup.Ct. 278, 58 L.Ed. 544; Chi., R.I. & Pac. Ry. v. Dowell, 229 U.S. 102, 113, 33 Sup.Ct. 684, 57 L.Ed. 1090; Illinois Central R.R. Co. v. Sheegog, 215 U.S. 308, 318, 30 Sup.Ct. 101, 54 L.Ed. 208; Veariel v. United Engineering & Foundry Co. (D.C.) 197 F. 877, 878.

2. One of the assignments is that the court erred in compelling plaintiff 'to elect upon which averment (of negligence) she would proceed to trial. ' During the opening statement of plaintiff's counsel a question arose between counsel and the trial judge as to paragraph 5 of the amended petition, in which it is alleged that the company and its engineer, Lang, 'carelessly, recklessly, willfully, and wantonly' caused the locomotive 'to strike, wound, and kill the said Henry J. Robbins. ' The trial judge thought this was inconsistent with the first four paragraphs of the amended petition, in which the acts of negligence charged in substance were failure to sound the locomotive whistle or bell or to stop the locomotive after discovery of decedent's peril and before the engine struck him; and so the court required plaintiff to elect whether she would proceed under the allegations of paragraph 5 or those of the preceding four paragraphs. We do not find it necessary to pass upon this ruling, for it was not prejudicial. Counsel for plaintiff said in contending against the court's view as to inconsistency between the degrees of negligence alleged:

'The same evidence will go in, of course, under any circumstances, and what inference is to be drawn from it the jury only can determine.'

And it is plainly to be inferred from the record that all available testimony on the subject of alleged negligence, regardless of degree, was introduced through the engineer, Lang; he was called by both sides as a witness and exhaustively examined; indeed he was the only person claimed to have witnessed the accident; in short, despite the election, plaintiff was practically allowed to introduce all the testimony she presented which could have any pertinency to the several charges of negligence. Requests were made for special instructions to the jury upon the subjects of paragraphs 1, 2, 3, and 4, but not of paragraph 5. These special requests were refused, and of this we shall speak later. The general charge treats extensively of the subject of negligence, and while exception was reserved to denial of the requests mentioned, yet none was taken to the general charge on the subject of negligence which has any bearing upon paragraph 5. The question then of inconsistency between allegations of 'negligence' and 'wanton negligence' is not important here.

3. Coming now to the requests denied, they were three in number and designed to present a question claimed to arise under the first four paragraphs of the amended petition in substance above stated. The exception was reserved at the close of the general charge, counsel stating that his exception was aimed at the court's refusal 'to charge the doctrine of the last clear chance. ' The trial judge, however, stated in substance that it had been his purpose to include the requests in the general charge and that he believed this had been done.

In order rightly to understand this feature of the case it will be necessary to make a further statement of facts disclosed by the record. The defendant company maintains a double-track railroad at the place of the accident, which tracks may for present purposes be said to lie in an east and west direction. The west-bound trains move on the northerly track and the east-bound trains on the southerly one, and the tracks are accordingly distinguished as west-bound and east-bound. The accident occurred on the west-bound track and upon a bridge owned and maintained by the company across Mosquito creek in the city of Niles, Ohio. A path extended for some considerable distance along and adjacent to the northerly side of the west-bound track and to the Mosquito creek bridge, and many people residing or working in the vicinity of the track and bridge had been accustomed for years to walk upon this path and across the bridge upon a board walk maintained between the north rail of the west-bound track and a solid metal railing forming the northerly side of the bridge. The distance between the north rail of the track and the path which lay east of the bridge was such as to afford entire safety to pedestrians during the passage of trains; but, except as to a platform presently to be described, the space between the metal railing of the bridge and the overhang of a locomotive was admittedly not sufficient to enable a person passing along the board walk to avoid collision with a locomotive crossing on the west-bound track. The platform mentioned was maintained at the easterly end of the bridge between north and south lines intercepted by the east end of the...