Illinois Central Railroad v. Harris , 85 Miss. 15 ( 1904 )

Calhoon J.,

delivered the opinion of the court.

The declaration in this case sets up a claim by Harris for damages for personal injuries against the appellant, the Illinois Central Railroad Company, and the Gulf & Ship Island Railroad Company, appellee in Harris’ appeal. It avers that by an. arrangement betiveen the two companies, existing for a long time, the Gulf & Ship Island used the spur tracks and switches in the yards of the Illinois Central, which yards were under the control of the Illinois Central, through its yardmaster, who controlled and directed the movements of the locomotives and cars of both companies in those yards, and that it was the duty of both companies to use proper care in switching to prevent harm to employes; that a failure to observe such care caused injury to Harris, the facts being that Harris was a brakeman of the Gulf & Ship Island Railroad, and working as such on the caboose of a freight train. The locomotive which pulled the train into the city of Iackson went with it onto the “Y” of its company, and, according to the custom, under the arrangement, it backed the caboose on a sidetrack of the Illinois Central under the order of the Gulf & Ship Island conductor to put it “on this track, or on one of the switch tracks,” and the yardmaster of the Illinois Central ordered the caboose to be placed on track No. 3, and, in so placing it, it encountered the corner of a flat car of the Illinois Central negligently left protruding over the way, but not visible to the brakeman, Harris, and by which collision he was badly hurt. The switch light indicated a clear way, and it was, the declaration avers, “negligent and careless on the part both of the-said [Gulf & Ship Island] conductor and the said [Illinois Central] yardmaster to order plaintiff, unwarned, into this position of peril.” This declaration, of which the foregoing is the substance, was confronted with a petition for removal to the Federal court by the Illinois Central Railroad Company on the ground that it is a nonresident corporation, and that the controversy as to it is separable from that between plaintiff and its co-defendant, the Gulf & Ship Island Railroad Company. This petition was refused, and this is assigned as error. We affirm this ruling on the face of the declaration, which must determine the matter, certainly in the absence of any pretense of a scheme to defeat the Federal jurisdiction. If the plaintiff had, in the course of the trial, discontinued his action as to the resident defendant, and this petition for removal had been then interposed, a different question would be before us. But it cannot alter the case that, after the bona jide prosecution to an end, the court saw fit, on the evidence, to give a peremptory instruction in favor of the home company. That may have resulted from some defect in the evidence as to the resident defendant. It possibly, if not probably, resulted, in the case before us, from the nonproduction by defendant, Illinois Central Railroad Company, of the original written joint traffic arrangement between it and the Gulf & Ship Island Railroad Company. The consent of the plaintiff that a copy of it be read could not affect the defendant, the Gulf & Ship Island, which objected; and the agreement of plaintiff with one co-defendant to the introduction of inconrpetent testimony cannot oust the jurisdiction of the cause. We think the right clear to bring a joint action in tort against wrongdoers, and do not think this right affected by the existence or nonexistence of the relation of master and servant between some of them and the actors in the tort, or because defendants were independent corporations, as in the present case.

We rely upon the cases cited in the brief of counsel for appellee in support of our conclusions, and here approve a quotation from the opinion in Powers v. Railroad Company, 169 U. S., 97, which is: “It is well settled that an action of tort, which might have been brought against many persons, or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the circuit court of the United. States, even if they file separate answers and set up different defenses from the other defendants and allege that they are not jointly liable with them and that their own controversy with the plaintiff is a sepárate one; for, as the court has often said, a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. .The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.”

After careful examination of the record, we find no error in it.

Affirmed on both appeals, at costs of the Illinois Central Railroad Company.