[243 U.S. 302, 303] Messrs. Allan D. Cole, W. T. Cole, and H. W. Cole for plaintiff in error.
Messrs. E. L. Worthington, W. D. Cochran, Le Wright Browning, and Proctor K. Malin for defendants in error.
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 [243 U.S. 302, 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 [243 U.S. 302, 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 [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, 1215]. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U.S. 282 , 46 L. ed. 910, 22 Sup. Ct. Rep. 681; Herndon-Carter Co. v. James N. Norris, Son & Co. 224 U.S. 496, 498 , 56 S. L. ed. 857, 858, 32 Sup. Ct. Rep. 550.
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 Min. Co. 196 U.S. 239, 245 , 49 S. L. ed. 462, 464, 25 Sup. Ct. Rep. 251), when tested by the laws of Kentucky ( Illinois C. R. Co. v. Sheegog, 215 U.S. 308 , 54 L. ed. 208, 30 Sup. Ct. Rep. 101; Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 153 , 58 S. L. ed. 544, 547, 34 Sup. Ct. Rep. 278). 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 & O. R. Co. 85 C. C. A. 316, 157 Fed. 741, 744, 13 Ann. Cas. 1068, are, that the Kentucky company had lawful authority [243 U.S. 302, 306] to lease its railroad to the Virginia company (McCabe v. Maysville & B. S. R. Co. 112 Ky. 861, 66 S. W. 1054), 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 & O. R. Co. 116 Ky. 144, 75 S. W. 275); 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,- 50 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. [243 U.S. 302, 307] In the case cited by the court in its opinion (Davis v. Chesapeake & O. R. 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 50 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 C. R. Co. v. Murphy, 123 Ky. 787, 11 L.R.A.(N. S.) 352, 97 S. W. 729, 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 [243 U.S. 302, 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 (smaller) communities, and until it does each case must rest 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. . . .
Six years later, in Chesapeake & O. R. Co. v. Warnock, 150 Ky. 74, 150 S. W. 29, 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:
Again recurring to the subject, the same court in Corder v. Cincinnati, N. O. & T. P. R. Co. 155 Ky. 536, 159 S. W. 1144, restates the rule, saying:
And yet again, in Willis v. Louisville & N. R. Co. 164 Ky. 124, 175 S. W. 18, the same court concludes another discussion of its decisions with the approval of the Warnock and Corder Cases, and adds:
Watson v. Chesapeake & O. R. Co. 170 Ky. 254, 185 S. W. 852, 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 [243 U.S. 302, 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 & B. S. R. Co. (this same Kentucky corporation) 112 Ky. 861, 66 S. W. 1054, 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 C. R. Co. v. Sheegog, 126 Ky. 252, 103 S. W. 323, affirmed in 215 U.S. 308 , 54 L. ed. 208, 30 Sup. Ct. Rep. 101, and Louisville Bridge Co. v. Sieber, 157 Ky. 151, 162 S. W. 804. 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 & B. S. R. Co. 116 Ky. 253, 75 S. W. 278.
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 [243 U.S. 302, 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 Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 153 , 58 S. L. ed. 544, 547, 34 Sup. Ct. Rep. 278), 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.
[ Footnote 1 ] Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1913, 1215.]