Ward v. Pullman Car Corp.

• Court: Kentucky Court of Appeals
• Writing for the Court: HOBSON, J.
• Citation: Ward v. Pullman Car Corp., 114 S.W. 754 (Ky. Ct. App. 1908)
• Decision Date: 18 December 1908
• Parties: WARD v. PULLMAN CAR CORPORATION et al.

114 S.W. 754

WARD v. PULLMAN CAR CORPORATION et al.

Court of Appeals of Kentucky.

December 18, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Joel H. Ward against the Pullman Car Corporation and others. From an order removing a cause to the Circuit Court of the United States, plaintiff appeals. Reversed and remanded.

Barker J., dissenting.

Myers &amp Howard, for appellant.

Galvin & Galvin, for appellees.

HOBSON J.

Joel H Ward brought this suit against the Pullman Company, the Cincinnati, New Orleans & Texas Pacific Railway Company, Henry Drayman, and Mike Glenn. The Pullman Company is a corporation under the laws of the state of Illinois. The railroad company is a corporation under the laws of the state of Ohio. Henry Drayman and Mike Glenn are two employés of the railroad company, and citizens of Kentucky. The Pullman Company and the railroad company filed their petition asking that the case be removed to the Circuit Court of the United States. The court ordered the removal, and the plaintiff appeals.

It is insisted for the appellees that the circuit court ruled correctly: First, because there was a fraudulent joinder of the two resident defendants, and that this question is cognizable only in the United States court; second, because no cause of action is stated against the resident defendants. The petition charged, in substance, these facts: Henry Drayman and Mike Glenn were car inspectors in the service of the railroad company. It was their duty as such severally to examine and inspect freight cars arriving at and departing from the yards of the defendant at Ludlow, Ky. for the purpose of discovering, reporting, and causing to be repaired any defect in any car so that such car and its appliances and attachments could be made safe for the trainmen in the employ of the railroad company to operate. On April 27, 1907, there was in the yard for inspection and for transportation to another point a certain gondola car equipped with the usual hand brakes, consisting of an upright iron staff, cogwheels, and other usual parts. The iron brake staff was defective and dangerous to operate. It was in an unsafe condition. It was the duty of Glenn and Drayman to inspect the car, its appliances, and attachments, including the brake, ascertain its condition, and report its condition, if out of repair or unsafe, before the car was placed in operation or turned over to the employés of the railroad company to be made a part of a train. The plaintiff was at that time a brakeman in the employ of the railroad company. Glenn and Drayman inspected the train of cars on which the Gondola car was then a part and inspected that car, but they made the inspection with gross and wanton carelessness, and approved the car as in good and safe condition to be operated, although it was then and there in a defective and dangerous condition; the iron brake staff of the car being in such condition that in using it to apply the brakes on the car a slight pressure would cause it to fall apart at a point where it should have been welded together. This all of the defendants well knew or could by the exercise of ordinary prudence have known. The dangerous condition of the car could have been discovered by the most ordinary test. The Pullman Company constructed the car for the railway company under a contract with it. It was aware at the time it constructed the car and delivered it to the railway company that it contemplated the use of the car on its railway by its employés for general traffic; and knew and contemplated that the employés of the railway company would in the use of the car necessarily go upon the same, and would necessarily apply the brakes on the car in the usual way by twisting on the brake rod when necessary to set the brake. The Pullman Company knew that, unless the iron brake rod was securely welded, it would fall apart upon the application of the necessary twisting force, and would most likely throw the person applying the brake from the car, and that the brakes would be necessarily applied while the car was in motion. Nevertheless the Pullman Company constructed and delivered the gondola car to the railway company with the brake staff having only a semblance of a weld, and in such condition that it would fall apart upon the application of sufficient force to apply the brakes on the car. The Pullman Company could have known by an ocular inspection of the brake staff that it was not welded, and could have discovered by the most commonplace test that it would fall apart; but with gross and wanton negligence it fraudulently caused the imperfect and incomplete weld which was apparent and obvious without paint to be painted over so as to partly conceal its imperfections, and in that condition delivered it to the railroad company, who placed it in operation upon the train, without any test whatever or any other inspection than the pretended inspection of Glenn and Drayman. On that day, while in the pursuit of his duties as a brakeman, he was commanded by the yard master to go upon this car, and while upon the car, obeying the directions of his superior in setting the brakes when it was being switched, it was necessary for him with both hands to take hold of the wheel at the top of the brake staff, and apply the necessary twisting force to set the brake, whereupon the iron brake staff suddenly and without fault on his part, owing to its defective condition, separated into two pieces and fell apart at the place where it was not properly welded, thereby he was thrown from the car and run over by it, receiving permanent and serious injuries to his damage in the sum of $50,000.

We will take up the second question first. Does the petition state a cause of action against the resident defendants, Henry Drayman and Mike Glenn, which is sufficient to warrant a judgment against them if they were the only defendants sued? In Cinn., etc., R. R. Co. v. Robertson, 115 Ky. 861 74 S.W. 1061, after referring to the rule laid down in some jurisdictions that where the injury results to some third person because the servant failed to act, the servant is not personally liable, though the master is, this court said: ""Whether this doctrine in its fullest extent can be sustained in sound reason it is unnecessary for us to examine. Whether the nonfeasance of Brown was a negative act, in that it was a failure to do what he had undertaken to do, and therefore had done it imperfectly, we are relieved from considering by the state of the pleadings and of the record; for it is not charged that Brown had it in his power to do anything other than exactly what he did." Dudley v. I. C. R. R. Co., 96 S.W. 835, 13 L.R.A. (N. S.) 1186, 29 Ky. Law Rep. 1029, rests on a similar state of facts; that is, it rests upon the ground that the servant there had done all that was in his power. There is a sharp conflict in the authorities as to whether a servant is liable to a third person for nonfeasance, and as to what is nonfeasance within the meaning of the rule. See Mayer v. Thompson, etc., R. R. Co., 104 Ala. 611, 16 So. 620, 28 L.R.A. 433, 53 Am.St.Rep. 88, and note: Ellis v. Railroad Co., 72 S.C. 465, 52 S.E. 228, 2 L.R.A. (N. S.) 378; McGinnis v. Railroad Co., 200 Mo. 347, 98 S.W. 590, 9 L.R.A. (N. S.) 880, 118 Am.St.Rep. 661, and cases cited. As to what the true rule is we are not required in this case to decide. The petition here charges more than a mere nonfeasance. The cars could not go out on the road until they were inspected and passed inspection. When the inspectors inspected the cars and approved them, they went out on the road. Their approval sent the car out on the road for the use of the trainmen, and, if they sent a car out which was defective, and which they knew or by ordinary care could have known was defective, they are as fully liable to the brakeman who was injured by reason of this as if they had with their own hands handed him a wrench telling him it was safe and proper to be used, when it was in fact in a dangerous condition; and they either knew this or could have known it by ordinary care in such inspection as they were required to make. They did not deliver the car by their own hands to the brakeman, but they approved it, and their approval put the car in the hands of the brakeman. It is not a case of mere failure to act, but it is a case of one who was charged with the duty of seeing that the car was safe before delivering it to another to be used with actual knowledge that if it was unsafe it would endanger his life; for they must be charged with knowing what they should have known by the exercise of ordinary care when they made the inspection and passed the car. If they had not inspected the car at all, and had not approved the car in any way, they would have done no positive act, and a different question would be presented. We therefore conclude that, if they were the only defendants to the action, a recovery might be had against them under the allegations of the petition. Huset v. Conn. Threshing Machine Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303; Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am.Rep. 715; Thomas v. Winchester, 6 N. Y. 397, 57 Am.Dec. 455; Lough v. John Davis & Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; ...