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DELAWARE, L. & W. R. CO. V. ROYCE

(Circuit Court of Appeals, Second Circuit. February 8, 1910.)

No. 127.

1. MASTER AND SERVANT (8$ 101, 102*)-MASTER'S LIABILITY FOR INJURY TO

SERVANT-DUTY WITH RESPECT TO MACHINERY,

The master does not insure the servants against defects in or breakdown of his machinery or appliances, but all that the law imposes on him is the duty to exercise reasonable care to make and maintain them safe.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. 88 171–

184; Dec. Dig. $$ 101, 102.*] 2. MASTER. AND SERVANT (8 185*)—MASTER'S LIABILITY FOR INJURY TO SERV

ANT-NEGLIGENCE OF FELLOW SERVANT.

A guide for one of the crossheads on a locomotive drawing a train was lost, and as the train lay on a siding the conductor reported the loss to the train dispatcher and procured another engine to help the train in, but did not report it to the superintendent, as required by the rules of the company. The engineer negligently failed to disconnect the disabled side of the engine while it was being moved, and the driving rod became disconnected, with the result that plaintiff, who was a brakeman stationed in that side of the cab, was injured. Prior to the loss of the guide, the engine was in good repair. Held, that defendant railroad company was not chargeable with notice of the dangerous condition of the engine, but that the negligence which caused plaintiff's injury was that of the engineer or conductor, who were his fellow servants, for which defendant was not responsible.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. 88 385– 421; Dec. Dig. $ 185.*} In Error to the Circuit Court of the United States for the Southern District of New York.

Action by Joseph M. Royce against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant brings error, Reversed.

F. W. Thomson, for plaintiff in error.

Hatch & Clute (Edward S. Hatch and Vincent P. Donihee, of counsel), for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. March 1, 1907, plaintiff was brakeman on a coal train of the defendant en route from Scranton, Pa., to Hoboken, N. J., which according to schedule ran into a siding near Waterloo Station, N. J. It was there discovered that the upper guide on the left side of the engine had dropped off. The piston which is driven forward and back by the cylinder or steam chest is attached at its outer end to one side of a block of steel called a "crosshead,” to the other side of which the driving rod of the driving wheel is attached. The crosshead moves forward and back between two parallel horizontal guides; the upper one being lost on this occasion. Thereupon the conductor, after consultation with the engineer, called up the office of the *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

chief train dispatcher at Hoboken, and delivered the following message over the telephone.

“Engine 866 is at Waterloo Siding, and we have lost our top guide; if you send us a pusher we can bring our train in all right.”

The engine was of the type known as “Mother Hubbard”; the cab being right over the boiler and fastened to it, leaving a place for the engineer to stand on the right side and for a brakeman on the left. A pusher was promptly sent, and the train proceeded with the intention of leaving the engine for repairs at the Port Morris yard; but in entering the yard the driving rod became disconnected, struck the floor of the cab, and loosened one of the bolts which held it to the boiler, from ywhich steam escaped, seriously injuring the plaintiff, who was on the left side of the cab. The only error assigned that need be considered is the refusal of the trial judge to direct a verdict for the defendant. He did so on the ground that the engineer upon the happening of the first accident to the engine became the alter ego of the defendant, and he left it to the jury to determine whether the engineer did what he ought not to have done, or left undone what he ought to have done, in respect to the disabled engine. The following rules of the company were offered in evidence: 461. “All irregularities such as derailment, breaking of cars, defect in cars or engines; defective condition of bridges or track; failure in water supply, and unusual detention of trains must be promptly reported by conductors to the superintendent.” 360. “Chief train dispatchers will report to the superintendent. In matters relating to the management of telegraph lines they will also report to the superintendent of telegraph.” 361. “They are in charge of the movement of trains; of the local distribution of cars and of the operation of telegraph lines on their respective divisions. They are also in charge of the train dispatchers, telegraph operators and linemen. * * * * 366. “They must keep constantly and closely informed as to the location and progress of all trains, require prompt reports of their departure, and, when necessary, of their arrival, from all open telegraph offices, and see that all such reports are entered upon the train sheet. Causes of delay must be immediately ascertained, and, if possible, remedied.”

The master does not insure the servants against defects in or breakdown of his machinery and appliances. All the law imposes on him is the duty to exercise reasonable care to make and maintain them safe. When it is said that the master cannot delegate this duty, no more is meant than that this reasonable degree of care must be exercised either by himself or by those who stand in his place. No antecedent negligence was alleged as to the engine. Indeed, the proofs established that it was originally fit, was kept in repair, and regularly inspected. Therefore, if the defendant failed of its duty to the plaintiff, it did so at the time the loss of the upper guide was discovered. The jury having found that the engine was unfit, and that it was negligence to proceed with it, the question arises whether this negligence was that of the defendant as master or of the plaintiff's fellow servants. The conductor and engineer were, as such, certainly his fellow servants. Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37

L. Ed. 772; New England R. R. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181. Notice to them was not notice to the defendant as master. The defendant had prescribed reasonable rules applying to the situation. The conductor, as the head of the crew, was required to communicate to the superintendent, who was the alter ego of the defendant; but he neglected to do so. He reported to the chief train dispatcher, another alter ego, but only in respect to the location and movement of the train. It is, therefore, plain that the defendant as master had no notice that the engine, originally fit, kept in good order, and regularly inspected, had broken down. Although the report to the chief train dispatcher stated that the upper guide had been lost, this was done merely to explain the delay. Even if the train dispatcher knew or thought the defect was one likely to make it dangerous to proceed with the engine in that condition, he had a right to suppose that the engineer had disconnected the disabled side, as the proofs show he could perfectly well have done The purpose of the message was to get from the train dispatcher the remedy which the conductor applied to the situation, namely, the pusher, and this was promptly supplied.

The record disclosing no evidence of negligence on the part of the defendant as master, the judgment is reversed.

VERSY.

POLLITZ v. WABASH R. CO. et al.
(Circuit Court of Appeals, Second Circuit. February 8, 1910.)

No. 109.
REMOVAL OF CAUSES (8 49*)—DIVERSITY OF CITIZENSHIP-SEPABABLE CONTRO-

A bill by a stockholder of a railroad company against the company, its resident officers, and directors, certain bondholders and the trustee in a mortgage securing a new issue of bonds to be exchanged with a large bonus of stock for the old bonds of the company, praying that such exchange be adjudged illegal and ultra vires and that the original status be restored, and alleging that such exchange was effected through a confederacy of certain of the defendants for their own benefit and to the injury of the stockholders, states a joint cause of action, and the cause is not removable by the company, which is a foreign corporation, on the ground of separable controversy, where the other defendants are citizens of the state.

{Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. $8 9599; Dec. Dig. $ 49.*

Separable controversy ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.)

Coxe, Circuit Judge, dissenting. Appeal from the Circuit Court of the United States for the Southern District of New York.

Suit in equity by James Pollitz against the Wabash Railroad Company and others. Décree for defendents (167 Fed. 145), and complainant appeals. Reversed.

See, also, 153 Fed. 941.
For other cases see same topic & & NUMBER In Dec. & Am. Dlgs. 1907 to date, & Rep'r Indexes

Stephen M. Yeaman (J. Aspinwall Hodge, of counsel), for appellant. Rush Taggart, Lawrence Greer, and F. C. Nicodemus, Jr., for appellees.

Before COXE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. The complainant, a citizen of the state of New York, is the owner of 1,000 shares of the common stock of the Wabash Railroad Company, a consolidated corporation under the laws of Missouri, Ohio, Indiana, Michigan, and Illinois, one of the defendants. The railroad company after long negotiations entered into an agreement with a committee representing its debenture mortgage bondholders to exchange those bonds, aggregating $30,000,000, for bonds of a new issue, together with common and preferred stock aggregating a much larger sum. October 20, 1906, this agreement was approved at a meeting of the stockholders and debenture mortgage bondholders by bondholders and stockholders representing more than 80 per cent. of the stock and debenture bonds of the company; the complainant protesting against the plan as illegal and inequitable for various reasons not necessary to be stated. October 30th the plan was advertised, and holders of debenture bonds were invited to deposit them with the United States Mortgage & Trust Company at New York for exchange.

November 7th the complainant brought a suit in the Supreme Court of the state of New York, alleging that the plan was illegal and ineq-. uitable, against the Wabash Railroad Company, its resident officers and directors, the Mercantile Trust Company of New York, which was as registrar to countersign the new securities, the United States Mortgage & Trust Company of New York, which was, as depositary of the securities to be exchanged, to distribute the same, and the persons composing the committee of the debenture mortgage bondholders, praying that they might be enjoined from doing anything to carry out the plan. December 5th the defendant railroad company removed the cause to the Circuit Court. December 31st was fixed as the date for the distribution of the securities issued in exchange for the debenture mortgage bonds.

January 23, 1907, the complainant began a second suit in the Supreme Court of the state of New York against the same defendants in the first suit, together with the trustees of the mortgage securing the new issue of bonds and the Metropolitan Trust Company of New York, which had owned $5,435,000 of the debenture mortgage bonds, alleging that the plan had been substantially carried out, and praying that it might be declared illegal and void, and that the defendants be ordered to re-exchange and re-deliver the securities, or, in default of so doing, that they, or some of them, be ordered to pay into the treasury of the defendant railroad company the par value of all the new bonds and common and preferred stock countersigned, issued, used, or received by them in exchange for the debenture mortgage bonds, together with any interest paid on the new bonds in the meantime. The bill also set up as an additional reason for declaring the plan illegal article 12, § 10, of the Constitution of Missouri (Ann. St. 1906, p. 305),

providing that no corporation shall issue preferred stock without the consent of all stockholders. · January 25, 1908, the defendant railroad company removed the cause into the Circuit Court, on the ground that there was a separable controversy between the complainant and the defendant railroad company, to the complete determination of which the other defendants were neither indispensable nor necessary parties. February 21st an order was entered denying the complainant's motion to remand the cause to the state court.

Subsequently, the complainant having moved for leave to discontinue the first suit upon payment of costs, and the defendant railroad company having moved to consolidate the two causes and for leave to amend its answer in the second cause and file a cross-bill the Circuit Court denied the complainant's motion and granted the motions of the railroad company. June 18th the railroad company amended its answer by setting up the new defense that the complainant was estopped from relying upon article 12, § 10, of the Constitution of Missouri, and filed a cross-bill praying that he be enjoined from questioning in any other suit the validity of the plan of exchange or of the acts done in carrying it out.

The only question we need to consider is whether the motion to remand the second suit was properly denied. We do not agree with the learned Circuit Judge that there was a separable controversy between the complainant and the defendant railroad company, to which the other resident defendants were not necessary parties. The bill charged them, or some of them, with confederating to carry out an illegal agreement ultra vires of the company for their own benefit and to the prejudice of the holders of common stock, and demanded that the original status be restored, or in default thereof that they or some of them pay into the treasury of the defendant railroad company the par value of the securities which they had issued or received, together with any interest paid upon the new bonds in the meantime. Only the bill is to be considered on this motion to remand (Graves v. Corbin, 132 U. S. 571, 585, 10 Sup. Ct. 196, 33 L. Ed. 462), and we think it alleged a cause of action against the defendants jointly, and that the complainant could not have the relief demanded without the presence of the resident defendants, or of some of them.

The Circuit Court would not have had jurisdiction of the cause if originally brought there, and therefore it is not removable (Act March 3, 1875, C. 137, 18 Stat. 470, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508]). For these reasons the complainant's motions to remand the second cause and for leave to discontinue the first cause on payment of costs should have been granted, and the defendant railroad company's motions to consolidate both causes and for leave to file a cross-bill should have been denied. Boston Co. v. Montana Co., 188 U. S. 632, 640, 23 Sup. Ct. 434, 47 L. Ed. 626; Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; Thorn Wire Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. 1265, 30 L. Ed. 1235; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528; Ward v. Franklin (C. C.) 110 Fed. 794.

Decree reversed, with the direction to the Circuit Court to permit the complainant to discontinue the first cause on payment of costs ac

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