West Kentucky Coal Co. v. Key
| Decision Date | 04 December 1917 |
| Citation | 198 S.W. 724,178 Ky. 220 |
| Parties | WEST KENTUCKY COAL CO. v. KEY. [a1] |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Webster County.
Suit by Clarence Key against West Kentucky Coal Company and another. Judgment for plaintiff against defendant named, and in favor of defendant Ellswick, and defendant named appeals. Affirmed.
Hunt & Bennett and James E. Coleman, all of Dixon, and Wm. J. Cox and Cox & Grayot, all of Madisonville, for appellant.
Ruth McNeil, of Madisonville, and Bourland & Blackwell, all of Dixon, and Laffoon & Waddill, of Madisonville, for appellee.
Plaintiff Clarence Key, brought this suit against the West Kentucky Coal Company and J. W. Ellswick, its electrician, to recover damages for personal injuries. The jury found in favor of Ellswick, but returned a verdict against the coal company for $10,000. The coal company appeals.
According to the evidence for plaintiff, he was 19 years old at the time of the accident, and was earning about $2 per day. He was engaged as trip rider on an electric motor used to propel cars in and out of the company's mine. He was seated on the front of the motor, and it was 14 feet from his position to that of the motorman in the rear. The motor was a 20-ton Westinghouse machine, and was pulling about 15 cars up grade at from 6 to 10 miles an hour. The motor was propelled by means of a pole and wheel attached to a trolley wire, which was charged with sufficient voltage to be dangerous to life and limb. At the steel casing at the mouth of the mine was a cut-out. Ten or fifteen feet therefrom was a hanger used to support the wire. Between the steel casing and the first hanger was a cable containing feed wires fastened to the trolley wire. As the motor came out of the mine, the trolley wire broke at the cut-out and fell on the cars in the rear of the motor. That part of the wire beyond the first hanger sagged and came in contact with plaintiff and the motor, thus causing plaintiff to be thrown in front of the motor and to be run over. One of his legs had to be amputated and the other was so severely injured that it will not bear any weight. The trolley wire had been in constant use for several years. Early on the morning of the accident, which took place at 4 p. m., one of the witnesses noticed a bright spot right by the cut-out where the wire broke, and the wire looked like it might pull in two at that point. The first hanger was a Jewell swing which had been in use for four or five years, and if this hanger had been in proper condition it would not have permitted the trolley wire to sag at the place where it did sag. It was also shown that J. W. Ellswick was the electrician in charge of the electrical appliances. While it does not appear that he actually installed the trolley wire, it does appear that he worked on it and frequently inspected it.
According to the evidence for the defendant, the trolley wire and hangers were standard appliances and such as were ordinarily used. There was no visible defect in the wire at the place where it broke, and nothing to indicate that it would break. On the contrary, it broke from some hidden defect which could not have been discovered.
The first error assigned for a reversal is the refusal of the trial court to grant plaintiff's petition for a removal to the federal court for the Western district of Kentucky. The original suit was filed on June 16, 1915, in the Webster circuit court, against the West Kentucky Coal Company and J. W. Ellswick, its electrician. Key and Ellswick are citizens of Kentucky, while the coal company is a citizen of New Jersey by virtue of its incorporation in that state. In proper time the coal company filed its petition and bond for removal on the ground of separable controversy and collusive joinder of parties to prevent removal. The petition for removal was denied by the state court, but further control over the matter was reserved. Afterwards a transcript of the record was filed in the federal court for the Western district of Kentucky, and the plaintiff below moved to remand the action to the state court. On November 29, 1915, the motion to remand was sustained. Subsequently the case was set for trial in the state court, on the 11th day of April, 1916. On that day and before the trial was begun, the coal company filed another petition for removal, stating therein, but more in detail, the same general grounds theretofore stated in the original petition for removal, and tendered another bond which was also approved by the state court. On April 12, 1916, the state court denied the second petition for removal. On April 13th, the trial began. At the conclusion of the plaintiff's evidence, the motion to remove was renewed. The trial resulted in a verdict for plaintiff against the coal company alone, and judgment was entered accordingly. The action as to Ellswick was then dismissed. Thereupon the coal company re-entered its motion to remove the case. This motion was overruled. The coal company again filed a transcript of the record in the federal court. Plaintiff's motion to remand was again sustained by the federal court. Key et al. v. West Kentucky Coal Co. et al. (D. C.) 237 F. 258.
There can be no doubt that the petition filed by plaintiff below stated a joint cause of action against both Ellswick and the coal company. The original petition for removal was in effect a mere denial in both a negative and affirmative form of the allegations upon which the liability of the resident defendant was rested, accompanied by the statement that the joinder was fraudulent, and did not state facts sufficient to compel the conclusion that the joinder was without right and made in bad faith. Chesapeake & Ohio R. R. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544. It follows that the original petition for removal was properly denied.
The second petition for removal was also properly denied, not only because it contained nothing more than a mere amplification of the allegations of the first petition for removal, but also because it stated no facts occurring subsequently to the filing of the first petition that in anywise changed the status of the parties as it then existed.
But it is insisted that the subsequent motion to remove should have been sustained both because of the insufficiency of the evidence as to the liability of the local defendant, and because of the jury's finding in his favor. In reply to the first proposition, it is sufficient to say that the local defendant's motion for a peremptory instruction was properly overruled. In support of the second proposition, it is argued that the finding of the jury in favor of the local defendant conclusively established appellant's right to the removal. Here there was a trial upon the merits, and the evidence of Ellswick's negligence was not only sufficient to take the case to the jury, but to sustain a verdict against him, had one been returned by the jury. The mere fact that the jury saw fit under these circumstances to disregard this evidence and find in his favor cannot be regarded as conclusive of a fraudulent joinder. The question of fraudulent joinder had then been properly disposed of, and the right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried. It follows that the trial court rightly held that the verdict in favor of Ellswick did not operate to make the case then removable, and thereby to enable the coal company to prevent plaintiff from taking a verdict against it. Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303; Kansas City Suburban Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76; Haynes' Adm'r v. C., N. O. & T. P. R. R. Co., 145 Ky. 209 140 S.W. 176, Ann....
To continue reading
Request your trial