Winston's Adm'r v. Illinois Cent. R. Co.

• Decision Date: 19 November 1901
• Citation: 65 S.W. 13,111 Ky. 954
• Parties: WINSTON'S ADM'R v. ILLINOIS CENT. R. CO. et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 13

111 Ky. 954

WINSTON'S ADM'R v. ILLINOIS CENT. R. CO. et al. ^[1]

Court of Appeals of Kentucky.

November 19, 1901

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by the administrator of Alex. Winston against the Illinois Central Railroad Company and others to recover damages for the death of plaintiff's intestate. Judgment filing petition for removal of cause to the federal court and accepting bond for removal, and plaintiff appeals. Reversed.

L. K Taylor and W. V. Eaton, for appellant.

Pirtle & Trabue and J. M. Dickinson, for appellees.

PAYNTER C.J.

The question here involved is whether this case is removable to the federal court by reason of diverse citizenship, the Illinois Central Railroad Company being a nonresident corporation, and its codefendants, A. W. Sheppard and R. S White, residents of McCracken county, Ky. It was averred in the petition for removal that the plaintiff made Sheppard and White defendants for the purpose of preventing a removal of the case to the federal court. It is immaterial what may have been the purpose of the plaintiff in making them defendants with the railroad company, if the petition states a joint cause of action against them. If the cause of action is joint, simply because the plaintiff might have elected to proceed against the defendant corporation alone he does not lose his right to prosecute his action in the state court. If it was a tort, for which the corporation and its codefendants are liable, the codefendants being residents of McCracken county, the state court had jurisdiction of the action, and the defendant corporation was not entitled to removal. This matter must be determined from the averments of the petition. It is averred by the plaintiff in his petition that on August 31, 1900, the defendants Sheppard and White, then and now citizens of McCracken county, Ky. were in the regular employ of the defendant Illinois Central Railroad Company; that on that day they were negligent in operating a train on its track; that while so operating it, acting in the capacity of engineer and flagman, respectively, under the employment of the company, in the regular course of business of the company, they did, as employés, acting jointly together with the corporation, with gross negligence run the train at an unusually high rate of speed in the city of Paducah, and by reason of such negligence forced and drove the train of cars against the decedent with such force and violence that he sustained great bodily injuries, from which he died. From the averments of the petition the defendants Sheppard and White while acting as the agents and servants of their codefendant the railroad company, by gross negligence destroyed the life of the plaintiff's intestate. The constitution and statutes of this state, as construed by the repeated adjudications of this court, make the railroad company liable for the acts of the agents and servants in charge of its trains. If a servant is guilty of such negligence, while acting for his master, as will make the master responsible, then in such a case the servant is personally and equally responsible with the master for the damage resulting from the negligent act. The mere fact that the master may be responsible for the wrongful act of the servant does not relieve the servant from a joint liability with the master for the wrongful act which produced the injury and damage. In the case of Railroad Co. v. Dixon's Adm'x (Ky.) 47 S.W. 615, the court had under consideration a similar question to the one here involved. While Chalkey and Sidles, engineer and fireman, respectively, were operating a train at an unusually rapid rate of speed, it collided with Dixon, and killed him. They were residents of the state, and were sued jointly with the railroad company. This court held that they were jointly liable with the master for the negligent act of killing, the employés being guilty of the negligence by reason of which the master was also jointly liable with them therefor. In that case, as in this, in the petition for removal of the case it was averred that the employés were...