An order of a district judge allowing a writ of error from this
Court and containing a recital that the judgment was based solely
upon lack of jurisdiction supplies the place of the certificate
required by § 238, Judicial Code.
An allegation in a petition for removal that the plaintiff's
motive in joining resident and nonresident defendants is to prevent
removal to the federal court is not, in itself, sufficient ground
for removal, but specific facts supporting the charge of fraud must
be alleged.
When the plaintiff's petition states a case of joint liability
in tort under the state law against a resident and a nonresident
defendant and the petition to remove the case on the ground that it
contains a separable controversy fails to aver facts showing that
the joinder is fraudulent, the district court must remand.
Under the law of Kentucky, a railroad company, though not
required by speed laws, must nevertheless take notice of the places
where numerous people are accustomed to cross or otherwise to be
upon its tracks, and, by moderating speed, maintaining proper
look-out, and giving proper signals, must exercise due care to save
them from injury by trains. Failure to observe this duty resulting
in injury or death is actionable negligence.
Under the law of Kentucky, lessor and lessee railroad companies
are jointly liable for injury or death inflicted on persons on
the
Page 243 U. S. 303
tracks, not trespassers, by the negligence of the lessee in
operating trains.
A petition averring that plaintiff's decedent, while at or near
a public crossing in a town where numerous people were accustomed
to be and travel, as lessor and lessee companies well knew, and
while in plain view of their agents and servants, was negligently
and wantonly run down and killed, without fault on his part, by a
train operated by the lessee, and specifying that the negligence
consisted in excessive speed -- fifty miles an hour, failure to
keep proper lookout for travelers at such a place, and failure to
give adequate signals or warnings of the approaching train --
states a cause of action against both companies under the law of
Kentucky.
198 F. 660 reversed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
On March 26, 1902 -- fifteen years since -- the plaintiff filed
her petition in the Circuit Court of Greenup County, Kentucky,
against the Chesapeake & Ohio Railway Company, a corporation
organized under the laws of Virginia, hereinafter called the
Virginia Company, lessee, and the Maysville & Big Sandy
Railroad Company, a corporation organized under the laws of
Kentucky, hereinafter called the Kentucky Company, the owner and
lessor of the railway on which plaintiff's decedent, on March 15th,
1902, was run down by a passing train and so injured that he soon
thereafter died.
In due time, the Virginia Company filed a petition for removal
of the cause to the Circuit Court of the United
Page 243 U. S. 304
States for the Eastern District of Kentucky, in which petition
it is alleged that there is in the case a separable controversy
which is wholly between citizens of different states, the
petitioner, a corporation of Virginia, and the plaintiff, a citizen
of Kentucky; that the Kentucky corporation is not a necessary or
proper party to the cause, which can be determined between the
Virginia Company and the plaintiff without reference to the
Kentucky Company, and that the Kentucky Company is "wrongfully,
fraudulently, and falsely" made a party for the sole purpose of
preventing removal to the federal court, without any intention on
the part of the plaintiff of proving against it any of the acts of
negligence alleged in the petition. It is charged that no cause of
action is stated in the amended petition against the Kentucky
Company.
On May 24, 1905, the plaintiff filed a motion to remand the case
to the state court on the ground that the federal court "is without
jurisdiction to hear and determine the cause," which motion was
overruled on the same day. Various consent continuances carried the
case over for two and one-half years until December 27, 1907, when
the plaintiff filed a motion to set aside "the order heretofore
made denying her motion to remand the case," and in support of this
motion, on the same day, she filed an answer to the petition for
removal which is, in substance, a detailed denial of all of the
allegations of that petition.
On the 25th of the following May (1908), plaintiff's motion to
reconsider the court's ruling denying her motion to remand the case
was submitted, and thirty days given for filing a brief, but it was
not decided until a year later, when, on May 24th, 1909, it was
overruled. Again, various continuances by consent caused the case
to go over for three years more, until May 27th, 1912, when the
plaintiff's motion to reconsider the court's action in overruling
her motion to remand was again overruled. Then follow other
continuances, aggregating two
Page 243 U. S. 305
years more, until, on May 25th, 1914, on motion of the
defendant, the case was dismissed for want of prosecution, in an
order which, four days later, was set aside, and again nothing was
done for eighteen months, until December 15th, 1915, when the case
was a second time dismissed for want of prosecution, in an order
which was revoked on the 24th of the following July, at which time
the former action of the court in overruling plaintiff's motion to
remand the case was reaffirmed, and the plaintiff, having elected
to stand on her motion to remand, and "refusing to recognize the
jurisdiction of the United States court or to proceed with the
prosecution of her case therein," upon motion, it was dismissed at
plaintiff's costs.
On the next day, the district judge allowed a writ of error to
this Court in an order reciting that plaintiff's petition "had been
dismissed by the judgment of this Court upon consideration solely
of the question of this Court's jurisdiction of the action."
The case is properly in this Court, the order of the district
judge being sufficient to take the place of the certificate
required by § 238 of the Judicial Code.
Excelsior Wooden Pipe
Co. v. Pacific Bridge Co., 185 U. S. 282;
Herndon-Carter Co. v. James N. Norris, Son & Co.,
224 U. S. 496,
224 U. S.
498.
The validity of the denial of the plaintiff's motion to remand
the case, which is thus brought before us, must be determined upon
the allegations of the amended petition and of the petition for
removal (
Madisonville Traction Co. v. St. Bernard Mining
Co., 196 U. S. 239,
196 U. S. 245,
when tested by the laws of Kentucky,
Illinois Central R. Co. v.
Sheegog, 215 U. S. 308;
Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.
S. 146,
232 U. S.
153). Fully recognizing this rule, the district court
decided the motion on the face of the pleadings, and its reasons
for refusal to remand the case, as stated in
McAllister v.
Chesapeake & Ohio Ry. Co., 157 F. 741, 744, are that the
Kentucky Company had lawful authority
Page 243 U. S. 306
to lease its railroad to the Virginia Company (
McCabe v.
Maysville & B. S. R. Co., 112 Ky. 861), that the
allegation of plaintiff's amended petition that plaintiff's
decedent was injured "at or near a public crossing" is an admission
that he was a trespasser on the railroad track at the time
(
Davis v. Chesapeake & Ohio Ry. Co., 116 Ky. 144), and
that the lessor company is not liable for injury to a trespasser by
the negligence of its lessee. These reasons were restated at length
by the district judge when he denied the motion to reconsider his
refusal to remand.
This conclusion of the district court, that the allegation of
the amended petition that the deceased, "at the time of the
injuries complained of, was at or near a public crossing in the
town of Fullerton" is an admission that he was a trespasser at the
time is based, we think, upon an insufficient statement of the
allegations of the amended petition, and upon much too narrow a
view of the effect of the decisions of the Kentucky Court of
Appeals as applied to the facts pleaded in this case.
The allegations of the amended petition are:
That, since before the year 1890, the Virginia Company had been
operating the line of railway owned by the Kentucky Company under a
lease "which in no wise relieves the lessor from liability for the
torts of the operating lessee," and that, on March 15th, 1902, when
plaintiff's decedent "was at or near a public crossing, . . . a
place in the Town of Fullerton where numerous people were
accustomed to be and travel," as the defendants well knew, without
fault on his part, and while in plain view of the agents and
servants of the defendants, he was "negligently and wantonly" run
down and killed by a train operated by the defendant, the Virginia
Company. The negligence alleged is excessive speed of the train --
fifty miles an hour -- failure to keep proper lookout for travelers
at such a place, and failure to give adequate signals or warnings
or the approaching train.
Page 243 U. S. 307
In the case cited by the court in its opinion (
Davis v.
Chesapeake & Ohio Ry. Co. supra), the petition alleged
that "the intestate was run over and killed at or near a private
crossing over the railroad track, between her garden and her home;"
that it was "not far" from public crossings to the east and west of
her, and that the train was negligently running at fifty miles an
hour without any appropriate lookout being kept or signals
given.
In considering this petition, the Court of Appeals, saying that
it must be taken most strongly against the pleader, decided that
the allegation that the deceased was killed "at or near a private
crossing" must be construed as meaning that she was killed at a
place on the track other than at the crossing, and that it is only
at a public crossing that reckless speed or any failure to give
signals amounts to negligence.
The differences between this decided case and the case at bar
are obvious and vital -- a private crossing in the one, a public
crossing in the other, and "a place where numerous people were
accustomed to be and travel" in the one case, and silence as to the
extent of use in the other. We shall see the Court of Appeals
laying sharp hold upon both of these distinctions when determining
what the state law applicable to such cases is.
Whatever doubt there may have been before as to what duty the
operating railroad company owed to the plaintiff's decedent was
settled by the decision in
Illinois Central Ry. Co. v.
Murphy, 123 Ky. 787, in which the Court of Appeals, in a
comprehensive survey of its prior decisions, formulates in two
"principles" or rules, the duty of the operating railroad company
to persons crossing or walking along its tracks. The first of these
is that, in sparsely settled districts, or where few people cross
or walk along railroad tracks, such users are to be regarded as
trespassers, to whom no duty is owed by
Page 243 U. S. 308
the company except to keep from injuring them if it reasonably
can after their presence and peril shall have been discovered.
The second principle, and it is the one applicable to the case
stated in the amended petition, is that in more populous
communities, or where many people are accustomed to cross or
otherwise use railroad tracks, the duty of the company is
"to operate the train with the fact of the trespassers' presence
in mind -- that is, at a speed which has the train under control,
and keeping such a lookout as will enable the operatives to give
timely warnings of its approach, as well as to stop it in case of
necessity before injury has been inflicted upon the trespasser.
Legislation has not regulated the speed of trains in such
communities. Each case must rest till then upon its own facts.
Whether the speed is so great as to amount to negligence will be a
fact to be determined by the jury, for the circumstances will
necessarily vary, according to the population, the use of the track
for passage by foot or vehicle travelers, the obstruction to the
view, and so forth."
"If the railroad company knows that the public habitually uses
its tracks and right of way in a populous community as a foot pass
way, so that it knows that at any moment people may be expected to
be found thereon, such knowledge is treated as equivalent to seeing
them there, and their presence must be taken into consideration by
the train operatives in the movement of their trains."
Six years later, in
C. & O. Ry. Co. v. Warnock's
Administrator, 150 Ky. 74, and, oddly enough, in a case
growing out of an accident which occurred in this same village of
Fullerton, the Court of Appeals again reviews its decisions,
approves the statement of the law in the
Murphy case, as
we have quoted it, and concludes with the statement that:
"Although Fullerton was not an incorporated town,
Page 243 U. S. 309
it was a town in fact, and the place where the accident occurred
[described as 60 feet from any public crossing] was such a locality
that the presence of persons on the track might be anticipated at
any time."
Again recurring to the subject, the same court, in
Corder's
Administrator v. C., N. O. & T. P. Railway, 155 Ky. 536,
restates the rule, saying:
"It is not so much whether the accident occurs in the city or
village as it is that there was evidence of such long and continued
use of the footpath by a large number of people as to impose upon
the railroad the duty of giving warning of the approach of its
trains to this point. . . . It is the nature and use of the
crossing by the public that is to determine the applicability of
the rule which requires the lookout."
And yet again, in
Willis' Administrator v. L. & N. R.
Co., 164 Ky. 124, the same court concludes another discussion
of its decisions with the approval of the
Warnock and
Corder cases, and adds:
"Running through all these opinions will be found the thought
that it is the habitual use of the track by large numbers of
persons, rather than the location of the track, that creates the
distinction between trespassers and licensees."
Watson's Administrator v. C. & O. Ry. Co., 170 Ky.
254, the last decision dealing with this subject, plainly is not
intended to modify the rule we have thus seen so long
established.
While these decisions of the Court of Appeals of Kentucky leave
something to be desired in the definition of the distinction
between "trespassers" and "licensees," there can be no doubt that,
regardless of the terms of designation used, the result of them is
that the allegations of the amended petition in the case under
consideration, if supported by appropriate testimony, would require
that the case be sent to a jury under a proper charge of
Page 243 U. S. 310
the court, and that it was error for the trial court to hold
that they did not state a cause of action as against the lessee,.
operating, company.
There remains only the question whether the amended petition
states a cause of action against the lessor, the Kentucky Company,
and it is very clear that the decisions of the highest court of
that state answer this question in the affirmative.
In
McCabe v. Maysville & Big Sandy R. Co. (this
same Kentucky Corporation), 112 Ky. 861, the Court of Appeals of
Kentucky expressly decides that, under the lease of its line to the
Virginia Company, which was in effect when the action complained of
occurred, the lessor company, notwithstanding the lease, continued
liable to the public for the torts of its lessee in operating the
leased railroad, holding that, where both lessor and lessee were
joined as defendants in a suit for causing the wrongful death of a
man killed by an engine operated by the lessee, the liability was
joint, and that a removal petition, not to be distinguished in
substance and scarcely in form from the one filed by the Virginia
Company in this case, did not state a case of a separable
controversy justifying removal to the United States court. To this
same effect, construing the constitution and statutes of Kentucky,
as applied to leases by other corporations, are
Illinois
Central Ry. Co. v. Sheegog's Administrator, 126 Ky. 252,
aff'd in
215 U. S. 215 U.S.
308, and
Louisville Bridge Co. v. Sieber,, 157 Ky. 151.
The plaintiff's decedent was not an employee of the Virginia
Company, and the rule of the cases cited is not modified by
Swice v. Maysville & Big Sandy R. Co., 116 Ky.
253.
Since the amended petition states a joint cause of action
against the Kentucky Company and the Virginia Company, the claim
that there is a separable controversy in the case justifying
removal by the latter company must fail, and since no facts are
alleged in support of the
Page 243 U. S. 311
charge that the joinder of the two companies is fraudulent,
except that it was made for the purpose of preventing removal to
the federal court, this claimed reason for removal must also fail,
Illinois C. R. Co. v. Sheegog, supra, and
C. & O.
Rt. Co. v. Cockrell, supra, and therefore the decision of the
district court is reversed, and the case must be remanded to the
state court.
The petition for removal of this case was filed on the 21st day
of July, 1902, and now, fifteen years after, in directing that the
case be remanded, we cannot fail to notice the many seemingly
needless delays to which it has been subjected, and we direct that
appropriate action be take to return it as promptly as possible to
the state court.
Reversed.