Southern Railway Company v. Sittasen
| Decision Date | 06 March 1906 |
| Docket Number | 20,674 |
| Citation | 76 N.E. 973,166 Ind. 257 |
| Parties | Southern Railway Company v. Sittasen |
| Court | Indiana Supreme Court |
From Crawford Circuit Court; C. W. Cook, Judge.
Action by Claude A. Sittasen against the Southern Railway Company and others. From a judgment on a verdict for plaintiff for $ 10,000 against said company, it appeals from the Appellate Court under subd. 3, § 1337j Burns 1901, Acts 1901, p 565, § 10.
Reversed.
M. W Fields, A. P. Humphreys, John D. Wellman and Jerry L Suddarth, for appellant.
W. E. Cox, R. W. Armstrong and Elliott, Elliott & Littleton, for appellee.
Action by appellee to recover damages for personal injuries. He was an engineer and was injured while in the employ of the appellant, by a locomotive, which he was operating, leaving the track and turning over by reason of an alleged defective railroad. The action was brought in the Dubois Circuit Court against appellant, its lessor, the Southern Railway Company of Indiana, Cyrus Winkler and Alonzo Jeffers. The latter two were section foremen charged with the duty of keeping the railroad at the place of the accident in good repair.
The complaint is in two paragraphs, each alleging that the Southern Railway Company of Indiana owned the track and right of way, and leased it to the appellant, which latter company was operating a railroad over it. Each paragraph counts upon negligence of appellant and the section men in allowing the track to become and remain out of repair. Before ruled to answer, appellant filed its petition and bond, praying for a removal of the cause, as to it, to the circuit court of the United States, on the ground of diverse citizenship and separable controversy. The court approved the bond, but overruled the petition, and appellant excepted. Each of the defendants demurred separately to each paragraph of the complaint, which were sustained as to the two section men and overruled as to the corporation defendants. Both the latter answered by a general denial. The venue was changed to the Crawford Circuit Court, where the cause was tried by a jury, and a verdict and judgment rendered, over a motion for a new trial, for the appellee. At the close of appellee's evidence, appellant again filed its petition and bond, praying the removal of the cause to the United States Circuit Court. The petition was overruled. The grounds alleged for removal were that a separable controversy existed, and appellee had fraudulently joined the Indiana company as defendant for the purpose of preventing a removal, and had neither alleged, nor attempted to prove, any liability on the part of the Indiana company. The court having sustained the demurrers of the section men to the complaint, they dropped out of the case. The court directed a verdict for the Indiana company, and the same was accordingly returned.
Appellant relies upon the alleged errors of the Dubois Circuit Court in overruling the petition to remove and in overruling the demurrers to the complaint and upon alleged errors of the Crawford Circuit Court in overruling the second petition to remove to the United States Circuit Court, and in overruling his motion for a new trial.
Appellant did not state the denial of either of his petitions for removal to the federal court as a cause for a new trial, but assigns such refusals in this court as an independent error. This, appellee insists, effects a waiver of the question.
A petition to remove a cause from a state court to a federal court, and a motion and affidavit for a change of venue, are the same in principle, in that they are alike the prescribed means of transferring the cause from one court to another for trial. They are both collateral and foreign to the merits of the cause. When entitled, a denial in either case is reversible error, and we see no reason why the trial judge should not have the same opportunity to review his decision and correct an error, before final judgment or appeal, in the one case as in the other. It has often been decided by this court that error predicated upon the denial of a change of venue must be assigned as a reason for a new trial, or it will be considered as waived. Goodrich v. Stangland (1900), 155 Ind. 279, 58 N.E. 148; Wilson v. Johnson (1896), 145 Ind. 40, 38 N.E. 38; Scanlin v. Stewart (1894), 138 Ind. 574, 37 N.E. 401; Mannix v. State, ex rel. (1888), 115 Ind. 245, 17 N.E. 565; Berlin v. Oglesbee (1879), 65 Ind. 308, 311; Wiley v. Barclay (1877), 58 Ind. 577.
We think the denial of a petition to remove to a federal court in cases where there has been a trial in the state court should be governed by the same rule, and we hold, therefore, that no question is presented in this case by the independent assignment thereon.
So far as the first paragraph of the complaint relates to the subject of appellant's negligence, it in substance alleges: That wholly on account of the carelessness or negligence of said defendants, as herein averred, said engine and train in said Dubois county jumped from and off said way and track, and thereby produced the injuries herein complained of; that said injuries so sustained by plaintiff were suffered by reason of defective way track and machinery in this: That the place along and on said track where said injury occurred was at a place where there was a fill about 40 feet high and 600 feet long between two high hills and over and across a deep ravine; that said fill was first made and built during the spring and summer of 1899, and prior to the making of said fill there was and had been a long wooden trestle, which trestle covered the entire distance of said fill; that said ravine was filled with dirt, rock and other debris, said dirt and debris being filled in and around said trestle, and said trestle and all timber therein being left standing, making and forming a part of the material used in said fill; that said material used in said fill was placed therein in a loose manner, said dirt and debris not being tamped, packed or pressed together at the time said fill was being made, and on account of the loose manner in which said fill was made said fill thereafter continued to pack, settle and recede, thereby leaving large holes and openings in said track at said place, weakening the force and strength of the same; that said track was defective in its construction in this: That at the place where plaintiff received his injuries said track was constructed with a large curve therein to the south, forming a semicircle, and said large curve or semicircle had in it a large number of short, double or reverse curves, which said short, double and reverse curves were so short and the angles thereof so great that large locomotives passing over said track at said place could not adjust themselves to said short, double and reverse curves, but at all times, on account of said defect, said engines were liable to jump from and off of said way at said place, and endanger the lives of the employes of said company; that said track at said place was defective on account of the fact that the same was overlaid with old, rotten and defective cross-ties, which ties, on account of their rotten and defective condition, would not hold spikes driven therein, but that said spikes, on account of the rotten and defective condition of said ties, would draw out and thereby cause said track at said place to spread apart, thereby derailing engines and trains, to the danger of the lives of said lessee's employes; that to render said track safe and secure, and to prevent the same from being dangerous to said employes, it was necessary to have said track at said place overlaid with sound and solid cross-ties, with heavy iron or steel rails placed thereon and firmly and securely fastened to said ties with spikes driven into the same, so as firmly and securely to fasten the same, and to prevent said rails from spreading apart when the weight of engines and trains passed over the same; that said lessee company entrusted the repairing and keeping of said track and way in a safe and secure condition and free from all dangerous defects therein to said Winkler...
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