FERGASON". CHICAGO, M. & ST. P. RY. CO.
FERGASON v. CHICAGO, M. & ST. P. RY. CO. et al.
(Circuit Court, N. D. Iowa, W. D.
October 11, 1894.)
REMOVAL OF CAUSES-SEPAlUBLE CONTROVERSY-WHAT CONSTITUTES.
In an action by a switchman against a railroad company, S., and P. for personal injuries sustained by being run over by the company's switch engine, the petition alleged that the engine was improperly constructed; that after plaintiff fell on the track, having been thrown down in an effort to step on the defective footboard, he was pushed along the track; and that such company, together with the engineer, S., and yard master, P., were negligent in that they did not keep a proper lookout, and did not heed plaintiff's signals to stop. Held, that such petition contained two distinct, separable causes of action.
This, was an action by George W. Fergason against the Chicago, ;Milwaukee & SL Paul Railway Company, John Smith, and D. W. 'Pollard for personal injuries. Plaintiff moved to the case to the state court, where it originated. M'Otion overruled. Argo, McDuffie & Argo, for plaintiff. Taylor, Shull & Farnsworth, for defendants. SHIRAS, District Judge. The questions arising upon the motion to remand this case to the state court, where it originated, grow out of the following facts: The plaintiff, George W. Fergason, on the 21st day of December, 1892, was in the employ of the Chicago, Milwaukee & St. Paul Railway Company, engaged in the business of switching in the yards of the company at Sioux Oity, Iowa. On the day named he was run over by a switch engine in the yard of the company, resulting in the loss of his leg. To reoover dam· ages for this injury he brought suit in the district court of Wood· bury county, Iowa, against the railway company, which action was removed into this court by the railway company, and on the 1st day of June, 1894, the case came on for trial before the oourt and jury. At the conclusion of the plaintiff's testimony the oourt intimated that his evidence showed that he himself was responsible for the accident, and thereupon the plaintiff dismissed the action without prejudice, and then instituted the present suit in the district court of Woodbury county, naming as defendants therein the railway company, John Smith, the engineer in charge of the en· gine, and D. W. Pollard, the yard master. The railway company thereupon filed a petition for the removal of the case into this court, upon the ground that it was a corporation created under the laws of the state of Wisconsin; that the plaintiff was a citizen of Iowa; that the suit was for $20,000; and that it involved a separable controversy existing between the plaintiff and the railway company, and hence was removable, even though the defendants Smith and Pollard were citizens of Iowa, and therefore cocitizens with plain· tifl'. The state court granted the order of removal, and, the transcript having been filed in this court, the plaintiff moves to remand on the gI'lound that this court is without jurisdiction. 'fhe question to be determined is whether the petition sets forth a cause of action existing solely between the plaintiff and the rail· v.63F.no.2-12
way company, and which. is separable from the cause of action -alleged the Smith: and· Pollard, So as to bring it within the of section .2 of act'of August 13, 1888, which enacts that "when in any suit, mentioned in this there slUm contooversy which is wholly between citizens -of different states, and 'vhich can be fully determined as between them, then eitheDone or more of the' defendants actually interested in· such controversy may. remove said suit into the circuit court ·of the United States for the proper district." Under this clause of the statute regard is to the cause or causes of action dedared upon and set forth by the plaintiff in his petition or declaration. By the rulings of the court in Ayres v. WiswaIl, U. S. 187, 5 Sup. Ot. 90; Railroa(l 00. v. Ide, 114 U. S. 52, 5 Ct. 735;, ,;Pirie v. 115 U.s. 41, 5 Sup. Ot. 1034,. 1Ui1; Btll:rin v. Oity' Of New YorK,1l5 U.S. Sup, Ot. 28; Sloane v. :Anderson, 111, p. S. 275, 6 Sup. v. Huntington, 117 U. S. 280,6, Sup. 0t.733; PlymouthCollsol. Gold Min. 00. v. Amador & S. lUlU. 6 Sup. Ct. ,1034,-and other cases based thereOn, it is' well settIetl that the question of the. existence 'of a separable, removable contr"Oversy is to be determineduponconsidet'alfion of the of the petition; that thedefendants,by"separate answers or cannot create a separable controversy(within the meaning of the statute,. out of :a cause of action upon' whiehtheplaintiffhas declared jointly; and therMore the true query ,is 'whether the case as. hrade and set forth iii the petition or decIaratil)n of the plaintiff is 0'1.' is not separable 'luto parts, "so that -in 'one of the parts a controversy will be presented with citizens!!ofontformorestates on one side and dtizens -of different'istaftes on the other, wbich can be fully determined without the presence of the parties to tqe suit as it has been. begliIn."· Ayresv. WYswall, 112' U; 'S. 187, 5 sup. Ct. 90. If the plaintiff in fact counttf or declares lipon one cause of action; and no >more, then the case cannot contain a separable controversy. '.It,:however, the petition in fact coiitainsmorethan one cause of .action, then a separable controversy eiists;:U1d,' if ,the reqUisite -diversity of citizenship exists between tbe adversary parties thereto, aground for remov!llmay thus bes,hown. Examining the petition filed in'this case, we find it sets forth that the engine used in switching in the SiouxOity yards" and under which the plaintiff wag,thrown l was improperly const!I'uctedand, equipped, it being averred "that it was the duty of the defendant company to furnish an engine for doihg saId work so constI'ucted with sloping 'sides and top, and of such width; that the servants of the defendatlt!otber than the plaintiff could readily see the plaintiff as he 'might step upon said board, or While riding' thereon 'in the discharge of his duties, as well track in front of said engine, and so the defendaut,might have done with the exercise of ordinary 'ealleand caution." Iits also averred that the engine was not built for switching purposes, but was a road engine, and that the foot'board placed in. front thereof had. nota railing or hand-catch placed above itl and that ithlid been permitted to become covered with ice or snow.
·.cHICAGO, M. & ST. P. RY. CO.
It is alst> averred thlj.t .aHer the plaintiff had fallen upon the track,-having .slipped and been thrown down in an effort to step upon the footboard of the engine while it was in motion,-he was pushed along the track for SOme distance, and that the defendant company, together with the engineer, Smith, and yard master, Pollard, were negligent in that they did not keep a proper lookout, did not heed plaintiff's signals to stop, nor promptly halt the engine in time to prevent injury to the plaintiff. Does this petition declare upon a single joint cause of action against all the defendants, or does it contain two distinct causes of action? If a person fails to perform a duty which the law imposes upon him, and as a con· sequence of such failure an injury is caused to the person or property of another, to whom, the duty of performance was due, then a right to maintain an action arises in favor of the injured party. In this sense of the word, and as against the wrongdoer, the· cause of action is the failure to perform the legal obligation. It is clear, in the present case, that. the plaintiff counts upon the legal duty of the rail way company to furnish for the use of its servants machinery and appliances properly ronstructed and equipped, and avers as a breach of this legal duty that the engine was not built for switching purposes, and was not pl'operly equipped with railings, catch-rods,etc. If the company had come short of its duty in this respect, and the plaintiff suffered injury by reason thereof,. then a right of action existed in favor of plaintiff, based upon the cause named, to wit, the failure of the master, in the performance of its duty, to furnish proper machinery and appliances for the use of its employes.. The petition does not, nor could it rightfully, charge the engineer or yard master with this duty, and with the consequence of a breach thereof. These men were but coservants with the plaintiff, and were under no legal obligation to furnish any machinery for his use. It is certainly clear that if the plaintiff had sued the engineer or yard master al'one, and had based his action upon the averment that the engine was not properly equipped, he could not recover, because it could not be shown that they were under any legal obligation to furnish a safely-equipped engine for his use. That was the obligation of the master, and not of the coseI'vant. The petition in fact counts upon two causes of action,-one, the failure to furnish a properly equipped switch engine; the other, negligence in the handling of the engine after plaintiff had been thl'ownupon the track. 'The first cause named exists only against the railway company, and is wholly distinct from the second cause of action. If it be true that the engine was not properly constructed, and was lacking in appliances needed for the safety of the men employed thereon, then tl:lis breach of duty existed from. the time. the engine was put to work as a switch engine; and thus a cause of action existed against the company from that time, which would ripen into a right of action in favor of an employe whenever such employe received injury by reason thereof. The cause of action for the negligent handling of the engine and f;lilureto exercise a proper l,ookout did nat arise and was not in existence until the parties in charge of the engine
undertook to move the engine along the track upon which plaintiff was injured. The first cause of action is based upon alleged negligence of the master in failing to furnish proper machinery; the second, upon alleged negligence of the coservants of the plaintiff in the handling of· the· engine. Under the l'llles of the common law, the first is a cause of action against the railway company, but the second is not. The first cause is therefore based upon the legal duty, imposed by the common la-W upon the master, but not upon the employes, of. furnishing safe machinery for the use of its servants, whereas the second cause, so far as the railway is concerned, is based upon the statute of Iowa, which makes the railway company liable, under given circumstances, for the negligence of its servants resulting in injury to a 60employe. It seems clear, therefore, that this suit fsclearly separable into parts, and in fact, upon the trial, must be so separated; and that, when thus separated, there is presented a' controversy between the plaintiff and the railway company over' the question whether the engine used for switching purposes in the yard at Sioux City was or was not properly constructed and equipped, and to this controversy the defendants Smith: and Pollard are not parties. If this be true, then, as the suit involves a controversy wbolly between citizens of different states, it was properly removed by the defendant company, and the motion to remand must be overruled.
MUTUAL LIFE INS. CO. OF NEW YORK v. CONOLEY.
(Circuit Court of Appeals, Fourth Circuit.
Ocrobe1' 2, 1894.)
No. 81. 1.
APPEAL-Ass!lUUlENTSOF ERROR-TIME: OF FILmG-ExTENSION OF TIME.
Assignments of error not filed in the trial court by plaintiff in error . or appellant at the time he files his petition for writ of error or appeal, as required by rule 11 of the circuit court of appeals, will not be considered on appeal, though the trial court, at the time such petition is filed and the writ or appeal is allowed, grants additional time for filing assignments of error, and they are filed within the time granted. Questions of law depending on facts which have not been certified in a bill of exceptions will not be disposed· of in this court.
Error to the Oircuit Court of the United States for the Eastern District of North Oarolina. This was- an action by Margaret E. Conoley against the Mutual Life Insurance Oompanyof New York on a life insurance policy. Thtere was a verdict and judgment in favor of plaintiff, and defendant brings error. Affirmed. Walter H. Neal, for plaintiff in error. , D. L. Russell, defendant in error. Before GOFF and SIMONTON, Circuit Judges, and HUGHES, District Judge.