St. Louis-San Francisco Railway Company v. Britton

• Decision Date: 24 March 1924
• Docket Number: 251
• Citation: 259 S.W. 730,163 Ark. 255
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BRITTON
• Court: Arkansas Supreme Court

259 S.W. 730

163 Ark. 255

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. BRITTON

No. 251

Supreme Court of Arkansas

March 24, 1924

Appeal from Crawford Circuit. Court; James Cochran, Judge; reversed.

Judgment reversed, and cause remanded.

W F. Evans and Warner, Hardin & Warner, for appellant.

It was reversible error to deny appellant's petition for removal of the cause to the United States District Court on the ground of diversity of citizenship. True that resident codefendants were joined in the complaint, but the allegations of the petition recited facts which compel the conclusion that this joinder was a fraudulent one and done to defeat the removal to the Federal court. The right of removal must be determined by the condition of the record in the State court at the time the removal is sought, and that court has no jurisdiction to try an issue of fact raised by the petition. 75 Ark. 116; Lewis on Removal of Causes, 432 § 258; 226 F. 323, 326; 87 Ark. 136; (U. S.) 66 Law. ed 144; 128 F. 85; 57 F. 169; 180 Ky. 848; (U. S.) 51. Law. ed. 430.

J. Seaborn Holt, for appellee.

In order to make the petition for removal sufficient, it was necessary to traverse or deny in such petition that the engineer and fireman, who were joined with the defendant railway company in the complaint, were in charge of the train that caused the accident. In the absence of such denial, the case should not be removed. 144 Ark. 65; 127 Ark. 179; 232 U.S. 146.

OPINION

MCCULLOCH, C. J.

Appellee 's intestate, W. D. Britton, was run over and killed by a train of cars, operated by appellant's servants, on the night of July 1, 1922, at a point on G Street, in the city of Fort Smith, where appellant's tracks cross said street. According to the pleadings and proof, there were seven parallel tracks of appellant at that place, and Britton was run over by one or more freight cars in a train of sixteen cars being switched along one of those tracks. Britton was employed as night watchman at an oil mill near the tracks, and it is alleged in the complaint that, as he was crossing the railroad tracks along G Street, he was struck by the train, which was being backed down the track, and was knocked down, run over, and killed. The engineer and fireman operating the engine of the train which is said to have caused the injury were joined as defendants, upon general allegations that the injury and death of Britton was caused by the joint negligent acts of appellant and of the fireman and engineer, A. E. Kimes and W. L. Corrotto, respectively.

The complaint contains allegations as to four acts of negligence which caused the injury, viz: (1) failure to keep a constant lookout for persons and property on the track, when, if the lookout had been kept, the peril of deceased would have been discovered in time to avoid the injury; (2) failure to place a signal light on the end of the rear car in the train, or to place some person on the end of the train to keep a lookout and give warning to persons approaching the track; (3) failure to ring the bell or sound the whistle, or give any kind of warning signal, as the train was being backed over the crossing; and (4) the failure to maintain an automatic electric alarm bell at the crossing.

In apt time appellant filed its petition and bond for removal of the cause to the District Court of the United States for the Western District of Arkansas, Fort Smith Division, which petition the court overruled, and a trial of the case before a jury resulted in a verdict in favor of appellee against appellant railway company, but in favor of defendants Corrotto and Kimes.

Appellant's petition for removal contained appropriate allegations as to diversity of citizenship of appellee and appellant, and as to the jurisdiction of the Federal court with respect to the amount involved. It also contained allegations to the effect that there was no cause of action against appellant's codefendants, Corrotto and Kimes, and that they were fraudulently joined as defendants in the action for the sole purpose of depriving appellant of its right to remove the cause to the Federal court. It was alleged in the petition in substance, that defendants, Corrotto and Kimes, were neither, in any way, responsible for the injury alleged to have been sustained; that the injury to Britton was not caused by the failure of either of said codefendants of appellants to keep a lookout; that said codefendants, Corrotto and Kimes, were the engineer and fireman of the train, which was in charge of a conductor, or foreman of the switching crew, and that said codefendants, Corrotto and Kimes, were not charged with the duty of placing signal lights or lookout on the rear end of the train, or with maintaining an automatic alarm signal at the...