Teel v. Chesapeake & O. Ry. Co. of Virginia

• Decision Date: 08 April 1913
• Docket Number: 2,286.
• Citation: 204 F. 914
• Parties: TEEL v. CHESAPEAKE & O. RY. CO. OF VIRGINIA.
• Court: U.S. Court of Appeals — Sixth Circuit

204 F. 914

TEEL v. CHESAPEAKE & O. RY. CO. OF VIRGINIA.

No. 2,286.

United States Court of Appeals, Sixth Circuit.

April 8, 1913

Action was commenced in the Kenton circuit court at Covington, Ky and was subsequently removed on petition of the defendant in error to the court below, where a directed verdict was rendered in favor of the defense. Plaintiff's intestate died of injuries received while acting as head brakeman of a freight train moving eastwardly on the Chesapeake & Ohio Railroad near Bellevue, Ky., and his widow, as administratrix, brought this suit to recover damages on account of his death. The defendants were the Chesapeake & Ohio Railway Company, a Virginia corporation, the Chesapeake & Ohio Railway Company a Kentucky corporation, and A. W. Sullivan, who was conductor of the train. All of the parties, including the decedent, at and before his death, were citizens and residents of Kentucky, except the railway company first mentioned. The petition comprised two counts; in the first of which complaint was made only against the two railway companies and in the second, against those companies, and also Sullivan, as conductor. It was alleged in the first count that the two railway companies, at the time of the injury and death, owned and operated a line of steam railway commencing in Cincinnati, Ohio, and extending into and through the states of Kentucky, West Virginia, Virginia, and other states, and were engaged in transportation of passengers and freight in and through such states; that plaintiff's intestate, Lake Teel, 'was in the employ of the said defendants as brakeman, and on said date was engaged by defendants upon a freight train transporting cars and freight from and through the states of Kentucky and Ohio into the states of Virginia and West Virginia'; that when the train reached Bellevue, 'an eye of the drawbar or automatic coupler (same being part of the safety appliance) connecting the locomotive engine pulling said train, which was composed of some 50 cars, some loaded and others unloaded, broke and caused said engine to become detached and separated from said train of cars, and caused said train of cars upon which her said decedent was necessarily riding in the discharge of his duties,' suddenly to stop, by reason of which the intestate was thrown to the ground, between two of the cars, and met his death as stated; that the train had shortly before left the terminal in Covington, Ky., and the coupler was then 'in a dangerous and defective condition owing to a defect therein, to wit, a crack or break in said automatic coupler or the parts of same.'

The second count is in substance the same as the first, except that it was alleged that Sullivan was the conductor in charge of the train and that it was his duty as well as that of the other defendants 'to know the condition of the safety appliances and equipments of the cars composing same'; that by the exercise of ordinary care they could have discovered the condition of the coupler, but that they negligently 'failed to warn said intestate of the danger of going upon said cars in the performance of his duties,' etc.

In its petition for removal the Chesapeake & Ohio Railway Company of Virginia alleged, among other things, that there was in the suit a controversy wholly between it, as a resident and citizen of Virginia, and plaintiff, as a resident and citizen of Kentucky, which was 'distinct and several from any controversy, or alleged controversy between the said administratrix and the other alleged defendants herein. ' Further, that Lake Teel and A. W. Sullivan, at the time in question, were both in the employ of petitioner, and that neither was in the employ of the Chesapeake & Ohio Railway Company of Kentucky; that plaintiff 'fraudulently' joined such railway company of Kentucky and Sullivan as codefendants for the purpose of defeating removal; that such last-named company did not have or own any interest in the railway in question and was not engaged in transporting freight or passengers at all, having on July 1, 1907, conveyed and transferred by deed its entire interest in the road, absolutely and in fee simple, to the other railway company, and that the deed was duly recorded in each of the counties of Kentucky in which any of the property was situated. The petitioner further alleged that it was a common carrier by railroad engaged in commerce between the states of Ohio, Kentucky, West Virginia, and Virginia; that plaintiff's decedent was in its employ as a brakeman on a train 'engaged in interstate commerce'; and that the question of plaintiff's right of action arises under the act of Congress approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)), relating to the liability of common carriers by railroad to their employes.

After the removal was effected, the plaintiff filed an answer to the petition for removal, positively denying its allegations except that its denial of the alleged sale of the Chesapeake & Ohio Railway Company of Kentucky to the other railway company was based on want of 'sufficient knowledge or information from which to form a belief. ' Later, a ...