McIntyre v. Southern Ry. Co.

Citations

• 131 F. 985
• 1904 U.S. App. LEXIS 4969

Syllabus

<p>1. Master and Servant — Joint Negligence.</p> <p>In order to render a master and servant jointly liable for injuries to a third person, there must be actual negligence, as distinguished from imputed negligence of the master concurring with a negligent act of the servant.</p> <p>2. Federal Courts — Removal on Cause — Separable Controversy.</p> <p>Though, in a suit against two or more defendants, one of whom is a nonresident, there may be charges of concurrent negligence against all, yet, if there be also a distinct charge of negligence against the nonresident defendant alone, sufficient in and of itself to constitute a cause of action, the case is one involving a separable controversy between citizens of different states, and is therefore removable to the federal courts.</p> <p>3. Same — Pleading.</p> <p>A complaint against a nonresident railway company and certain of its employes in charge of the train by which deceased was killed, who were of the same citizenship as plaintiff, alleged that, in violation of the rules of the railway company, “defendants negligently, willfully, and maliciously, by their joint, concurrent acts,” gave certain box cars a high, unusual, and dangerous rate of speed, uncoupled them from the engine, turned a swdtch, and permitted them to roll down a steep grade over a crossing, by which plaintiff’s intestate was knocked down and killed. The complaint also charged defendants jointly with negligence in maintaining such steep grade and closely adjoining switch at such place, in not providing a switchman at the crossing, in not providing a brakeman in charge of the cars, and in that the railway company’s employes were incompetent, and that they were retained in its employ with knowledge that they were accustomed to violate its rules. Held, that such acts of negligence were not joint, but that the complaint alleged a separable controversy, entitling the railway company to remove the cause to the federal courts.</p> <p>¶ 1. See Master and Serva