The Kansas City Surburban Belt Railway Company v. Herman

• Decision Date: 08 March 1902
• Docket Number: 12,037
• Parties: THE KANSAS CITY SURBURBAN BELT RAILWAY COMPANY v. ANDREW HERMAN, a Minor, etc
• Court: Kansas Supreme Court

68 P. 46

64 Kan. 546

THE KANSAS CITY SURBURBAN BELT RAILWAY COMPANY v. ANDREW HERMAN, a Minor, etc

No. 12,037

Supreme Court of Kansas

March 8, 1902

Decided January, 1902.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILWAYS--INJURY TO INFANT--Instructions Sustained. Where the jury are instructed that a railway company is guilty of negligence when it runs a train within the limits of a city of the first class faster than is permitted by ordinance, but that such violation of law does not of itself render the railway company liable to one who has sustained injuries unless it is shown by a preponderance of the evidence that such injuries "were the direct and proximate result of the rate of speed at which the train was traveling," the instructions, construed together, are not erroneous.

Miller, Buchan & Morris, and Lathrop, Morrow, Fox & Moore, for plaintiff in error.

W. B. Sutton, and Silas Porter, for defendants in error.

ELLIS, J. DOSTER, C. J., JOHNSTON, POLLOCK, JJ., concurring.

OPINION

ELLIS, J.:

This action was originally brought against the Kansas City Suburban Belt Railway Company, a Missouri corporation, and the Union Terminal Railway Company, a Kansas corporation, by Andrew Herman, a minor, by his next friend, to recover $ 10,000 in damages for an injury to the plaintiff, a child four years of age, by reason of the alleged negligence of the defendants. On the day the summons was returnable, the defendant the Kansas City Suburban Belt Railway Company filed its petition and bond for a removal of the cause to the United States circuit court, on the ground of the diversity of citizenship between the plaintiff and that company, and because the controversy between the plaintiff and said company was separable from the controversy between the plaintiff and the Union Terminal Railway Company. The court denied the application. Thereafter the cause was tried at the September, 1898, term of the court of common pleas of Wyandotte county. At the close of plaintiff's testimony, the Union Terminal Railway Company interposed a demurrer to the evidence, which the court sustained. The Kansas City Suburban Belt Railway Company thereupon, and before any other proceedings were had in the case, filed another petition and bond for removal to the United States circuit court on the ground of diversity of citizenship between the plaintiff and defendant, alleging the filing of the former petition for removal and the fact that the demurrer of the Union Terminal Railway Company had been sustained, and further alleging that not only was no evidence offered, or attempted to be offered, by plaintiff to show a cause of action against the Union Terminal Railway Company, but that the latter company had been joined with it for the sole purpose of preventing a removal of the cause to the United States circuit court. Plaintiff filed what his counsel called an answer to the petition for removal, alleging good faith in joining the two railways as defendants, and setting forth, in substance, that the counsel for the respective railway companies had promised to produce certain documents and papers in court which, counsel for plaintiff below contended, would have shown liability on the part of both of said railway companies, but that, after relying upon the good faith of counsel to produce such papers and records, at the last moment, and during the trial, counsel had violated such promise and refused to produce them, for which reason, it was claimed, the plaintiff had been deprived of material evidence. This so-called answer was properly verified by counsel for plaintiff below, and thereupon the court again denied the right of removal to the railway company, to which the latter excepted. The trial proceeded, and resulted in a disagreement of the jury. At the ensuing February term of court, the plaintiff, upon leave granted, filed an amended petition, reducing the amount of damages claimed to $ 1999, upon which issues were joined, and the cause tried during the May term following.

The jurisdiction of this court to hear and determine the case is challenged upon the ground that the second application for removal to the United States circuit court ought to have been granted, for which reason the case must be here treated as though it had in fact been removed to the federal court. In support of this contention, the case of Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, is cited as authority. The following is quoted from the opinion:

"In the case at bar, the second petition for removal, as presented to the state court, alleged that the petitioner was a citizen of the states of Virginia and West Virginia only, that the plaintiff was a citizen of the state of Kentucky, that Evans and Hickey had been fraudulently and improperly joined as defendants, for the purpose of defeating the petitioner's right of removal; that, because of their joinder, the case had been remanded to the state court, and that the action, having been discontinued against them, was now, for the first time, binding against the petitioner alone. . . . It was thus made to appear, upon the record of the state court, that the case could not have been removed before, and that it had now become in its nature removable by reason of the diverse citizenship of the parties. Such being the case, it was rightly removed by the second petition for removal into the circuit court of the United States."

It will be observed that in that case the plaintiff voluntarily dismissed his action against those defendants whose relationship to the action afforded the only impediment to a removal of the cause into the United States court.

In the later case of Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303, suit was brought against two railroad companies to recover for personal injuries sustained by an employee of one of them, and after the evidence had all been taken at the trial, the court...