Ross v. Erie R. Co.

• Decision Date: 07 November 1902
• Citation: 120 F. 703
• Parties: ROSS v. ERIE R. CO. et al.
• Court: U.S. District Court — Eastern District of New York

120 F. 703

ROSS v. ERIE R. CO. et al.

United States Circuit Court, E.D. New York.

November 7, 1902

Jones &amp Nekarda (Paul Jones, of counsel), for plaintiff.

Stetson Jennings & Russell (Allen Wardwell, for counsel), for defendants.

THOMAS District Judge.

The plaintiff brings this action on account of the death of his son, killed by the defendants' alleged wrongful act. The Erie Railroad Company is organized under the laws of New York, and the Pennsylvania Coal Company is created by the laws of Pennsylvania. The complaint alleges that 'both said defendants have a general office for the regular transaction of business at No. 21 Cortlandt street, in the borough of Manhattan, city of New York, state of New York having the same corps of officers, to wit the president secretary, and treasurer,' and, upon information and belief, that at the time of the accident the Pennsylvania Coal Company was in possession of a certain colliery, at or near the town of Pittstown, aforesaid, 'and operated and still operates a breaker, known at the 'Ewen Breaker,' located outside of said colliery, with the machinery and other appurtenances thereto belonging: that at said times the defendant, the Erie Railroad Company, under an agreement with the defendant the Pennsylvania Coal Company, managed, controlled, and still controls, and said colliery and breaker, together with the machinery and appurtenances attached to said breaker'; that the plaintiff's intestate 'was in the employ and service of the defendants, in or about the said breaker, in the capacity of an oiler of various machinery used by said defendants therein'; that the defendants negligently permitted a large quantity of refuse material to accumulate so as to render unsafe access to the chute or pocket connected with the breaker; that under these conditions the defendants negligently ordered the plaintiff's intestate to leave his accustomed place of work, and to approach the defective chute, and to loosen the clogged and frozen refuse, so that it might be removed from such chute, without warning him of the dangerous and unsafe character of the material and the risks incident thereto, where upon the refuse fell with great force upon the plaintiff's intestate, causing his death.

The Pennsylvania Coal Company duly petitioned for the removal of the action against it to this court, but the Erie Railroad Company answered in the state court. The petition for removal, verified by the secretary of the coal company, avers, 'that the defendant Erie Railroad Company did not own, operate, manage, or control either by agreement with your petitioner, the defendant the Pennsylvania Coal Company, or otherwise, the breaker or colliery referred to in the complaint, or any of the machinery or appurtenances belonging thereto; and your petitioner further avers that Neal Ross, the person on account of whose death this action is brought, was never in the employ of the Erie Railroad Company; and your petitioner further avers that the defendant Erie Railroad Company was and is fraudulently and improperly joined as a party defendant to this action for the sole purpose of defeating the right of your petitioner to remove this cause to the United States Circuit Court. ' Accompanying the petition is an affidavit of the assistant secretary of the Erie Railroad Company denying that the Erie Railroad Company ever owned, operated, managed, or controlled the property or breaker in question, or that the plaintiff's intestate was ever in the employ of the Erie Railroad Company, or that such company, or its agents or servants, had any connection with the accident.

The plaintiff relies upon the rule that here can be no removal because one of the defendants a citizen of the same state as the plaintiff, and does not an cannot petition for the removal. Bixby v. Couse, 8 Blatchf. 73, Fed. Cas No. 1,451; Sewing Machine Company's Cases, 18 Wall. 553, 21 L.Ed. 914; Vannevar v. Bryant, 88 U.S. 41, 22 L.Ed. 476; Removal Cases, 100 U.S. 457, 25 L.Ed. 593; Rand v. Walker, 117 U.S. 340, 6 Sup.Ct. 769, 29 L.Ed. 907; Hanover Fire Ins. Co. v. Keogh (C.C.) 7 Fed. 764. This rule is applicable only in cases where all the defendants have been properly joined. The petition in the present action alleges that the resident defendant, the Erie Railroad Company, has no connection with the cause of action, and...