Union P. R. Co. v. Sleeth

• Decision Date: 01 June 1926
• Docket Number: 11411.
• Citation: 246 P. 1021,79 Colo. 548
• Parties: UNION PAC. R. CO. v. SLEETH.
• Court: Colorado Supreme Court

246 P. 1021

79 Colo. 548

UNION PAC. R. CO. v. SLEETH.

No. 11411.

Supreme Court of Colorado, En Banc.

June 1, 1926

Error to District Court, Morgan County; H. E. Munson, Judge.

Action by N. Margaret Sleeth against the Union Pacific Railroad Company and another. Judgment for plaintiff, and named defendant brings error.

Reversed with instructions.

C. C Dorsey and E. G. Knowles, both of Denver, for plaintiff in error.

Clifford W. Mills and Foster Cline, both of Denver, for defendant in error.

CAMPBELL J.

In this action to recover damages the plaintiff, widow of Ernest Sleeth, alleged, in her complaint against the Union Pacific Railroad Company and W. E. Turner, that her husband, while riding as a guest in an automobile driven by Turner, was struck by a Union Pacific freight train at a blind crossing at Snyder, Colo., and sustained injuries in the collision at this crossing between the automobile and the railway company's locomotive which resulted in his death. The complaint charges that Turner's negligence consisted in his driving his car upon the railroad track recklessly and negligently, and without observing proper precaution to ascertain if a train was then approaching. The negligence charged against the railroad company is that it erected and maintained buildings on its adjacent right of way that obstructed the view of travelers on the highway approaching the crossing, and that its engineer negligently operated the train. After specifying these several negligent acts of the two defendants, the complaint further alleged that the death of the deceased was caused by the joint negligence of the parties, and that these specified acts and omissions of the respective defendants made up this joint negligence. Before answering to the complaint, the defendant railroad company filed its verified petition for the removal of the cause to the District Court of the United States for the District of Colorado, in which petition it was stated that the controversy here is between citizens of different states plaintiff being a resident of the state of Colorado, and the petitioner railroad company being a corporation organized and existing under the laws of the state of Utah, which was at the time when the suit was begun and ever since has been, and now is, a citizen and a resident of that state; that the cause may be fully determined between the plaintiff and the petitioner irrespective of the codefendant, Turner, since the complaint sets forth two separate controversies, one between plaintiff and petitioner for damages for the death of the plaintiff's intestate resulting from alleged negligence of petitioner, the other being between the plaintiff and the defendant Turner for damages for the death of plaintiff's intestate resulting from alleged negligence of Turner. The petition further alleges that the attempted joinder of the two defendants was not made by the plaintiff in good faith, but fraudulently by her and her attorney, with the desire and intent to defeat the jurisdiction of the federal District Court, and to deprive the nonresident petitioner of the right, guaranteed to it by the statutes of the United States, of procuring the removal of the cause and the trial therein in the federal court, and for no other purpose whatever. There are further averments that the petitioner and his codefendant, Turner, were not, at the time the complaint was filed, and are not now, jointly liable to the plaintiff for or on account of any or all of the matters and things alleged in the complaint, plaintiff's cause of action against petitioner, if any, being for the negligence of the petitioner in the maintenance and operation of its railroad, whereas, plaintiff's cause of action, if any, against Turner is for his negligence in the operation of his automobile in which plaintiff's intestate was riding as a guest; that the alleged negligence of petitioner is separate, distinct, and in nowise joint or concurrent with the alleged negligence of Turner, and the accident set forth in the complaint was not the result of their joint actions or omissions. Accompanying the petition was the prescribed bond, which was approved by the presiding judge. This verified petition was not controverted by plaintiff, and no question is made as to the sufficiency or approval of the bond. The court denied the petition for removal, and, after answers had been filed by the respective defendants, the case proceeded to trial. Upon conclusion of the evidence a motion for nonsuit was interposed by each of the defendants; that of the railroad company was denied, that of Turner was granted, and thereupon he was dismissed from the action. The jury returned a verdict for the plaintiff against the defendant railroad company, which is here with its writ to review the judgment entered thereon. A number of errors are assigned and argued. As the trial court erred in refusing the removal, the only assignment considered is that aimed at such ruling.

From the foregoing it will be observed that there is no specific allegation in the complaint that Sleeth's death was caused by the joint and concurrent negligence of the defendants. Counsel for the railroad company strenuously contend that, assuming as true the facts as pleaded in the complaint with respect to the negligence of the two defendants, there was not, and could not be, any joint or concurrent negligence, since the railroad company's negligence, if any, consists of the certain acts and omissions, while the negligence of the defendant Turner consists of certain other distinct and...