Miller v. Union Pacific Railway Company. MILLER V. THE UNION PACIFIC RAILWAY COMPANY. (District of Colorado. November, 1880.) 1. PLEADING-INSUFFICIENT STATEMENTS IN PETITION-DEMURRER.— In an action for damages for injuries to the person, by a carpenter employed by a railway company, the allegation in the petition that the injury was received while riding on a “push-car or hand-car" is not sufficient. Such petition is defective for uncertainty, and a demurrer to it will be sustained. 2. NECESSARY AVERMENTS.-In order to recover, the plaintiff must allege that cars such as he was riding in when injured are usually supplied with brakes, or other apparatus for controlling its movements. 3. CONTRIBUTORY NEGLIGENCE.- It is negligence in an employee of a railway to ride down grade on a push-car, which he knew to be unsupplied with brakes; and for an injury received in such case he cannot recover. Geo. H. Gray and T. A. Green, for plaintiff. H. M. & Willard Teller, for defendants. On demurrer to petition. The facts appear in the opinion. MCCRARY, Circuit Judge (orally).- This is a case in which the plaintiff sues to recover damages for an injury received while riding on what he calls in his petition a "pushcar or hand-car." It is alleged that he was employed as a carpenter for the defendant company, and was furnished with a car to carry his tools and transport himself from the station on the main line along a side track or branch road to a coal station; that he went up on this car. It is not stated in the petition whether he pushed it up or whether he rode upon it and somebody else pushed it; but it is alleged that when he came to return he and several others got aboard the car and started down the track, which was of a very steep grade, and the car got beyond their control, having no means of retarding its movement, and in jumping out of it he was injured. Miller v. Union Pacific Railway Company. The demurrer to the petition is upon the ground that plaintiff's statement of the case in the pleadings shows that he was guilty of contributory negligence. In the courts of the United States, at least, and I think in most if not all the states, the defense of contributory negligence is a good defense in a case of this kind. In the first place, this petition is defective for uncertainty. It says that it was "a hand or push-car." It is necessary that the plaintiff should describe the car with more particularity than that, because a hand-car may be one thing and a pushcar quite another, and it is impossible to determine the question of contributory negligence without knowing something about the character and construction of the car; because of course it is a very material question whether there was any apparatus on the car itself which could be used by persons. riding upon it to stop it or to retard its movement. If it was what is known as a push-car, and if those cars are used ordinarily merely for carrying something, being propelled by some one walking by them and pushing, and if it had no brakes or apparatus for stopping or retarding its movements, then it was negligence to get aboard of it and start down grade without any means of controlling it. I say then, in the first place, the petition ought to describe the car. To say it was a hand or push-car is not enough. In the second place, if the car on which plaintiff was riding when injured was known as a push-car, and had no brakes or apparatus for controlling its movements, and if the plaintiff knowing this got on the car and rode down the grade, this was negligence, and the plaintiff cannot recover. The petition does not show very clearly, to say the least, whether the car was without brakes or not. But I apprehend, from what counsel have said, that it had no brakes. Another proposition is this: In order to recover, plaintiff must allege that cars such as the one he was riding in when injured are usually supplied with brakes. Of course he cannot recover, unless it appears that he went aboard of this car, Mooney v. Agnew. supposing that there was some mode or way by which persons, when traveling on it or riding in it, could retard its movement or stop it. If he knew from having ridden in the car, or having seen others push it as he came up the track, that it could be controlled only by walking along by it and holding it back, and knowing that, he got into it with a number of other people to ride on a down grade, he took his chances. It was a clear case of contributory negligence. The demurrer for these reasons is sustained. for plaintiff thinks that he can make a case, he If the counsel may amend. MOONEY V. AGNEW. (District of Colorado. June, 1880.) 1. REMOVAL OF CAUSE.-Application for removal of a cause from a state to a federal court on the ground of citizenship must be made before the trial of the cause. 2. SAME-PART of the DefenDANTS CANNOT REMOVE.- When judgment has been rendered against some of the defendants and an appeal has been taken to the supreme court of the state, an application on part of the other defendants for a removal will not be granted. The controversy is an entire thing, and it cannot be removed at all unless it be removed as to all. HALLETT, District Judge (orally).— A motion was made some days ago to remand this cause to the district court of Arapahoe county from whence it was removed. It appears that the action was brought against some twenty or more defendants, two of whom were served with process, and judg ment rendered against them at the last term of the district court of Arapahoe county. These defendants appealed the cause to the supreme court of the state. Soon aftewards two other defendants were served, and they, upon certain petitions, removed the case into this court. The petitions show that all the defendants, as well those against whom judgment was rendered as those making the application, and those who have Mooney v. Agnew. not been served in the cause, are residents of other states, that is, not residents of Colorado; and the plaintiff is a resident or citizen of this state, so that as to the citizenship of the parties, the plaintiff is a citizen of this state, and the defendants are citizens of other states, and upon that it would seem to be a controversy between citizens of different states, all of the defendants differing in their citizenship from the plaintiff; and it would seem, also, that the application for removal to this court is made under the last clause of section two of the act of 1875. That clause is that, in any suit mentioned in the section, if there shall be a controversy which is wholly between citizens of different states, that can be fully determined as between them, then one or more of the plaintiffs or defendants actually interested in such controversy may remove the cause to the circuit court; that is, all the defendants being citizens of states other than that of which the plaintiff is a citizen, the application may be made by one or more of them; and upon such application, if the cause is in condition to be removed, the removal may be had without the concurrence of others of the defendants. case. But there seems to be a difficulty as to the condition of the As stated before, judgment has been rendered as to two of the defendants, and they have taken an appeal to the supreme court of the state. As to them, the cause is not in a condition for removal, because it has passed to an appellate tribunal, and the rule is that the removal must be had before the trial of the cause. As to the other defendants in the cause, those who have been served and made this application for removal, and those who have not been served,- the cause is in a condition for removal. But the controversy which is mentioned in this section is regarded by the court as an entire thing, that is to say, the controversy is between the plaintiff and all these defendants, and it stands now in this attitude: that the controversy as to two of the defendants is pending in the supreme court of the state, and as to the others, in the district court of the state, and it cannot be removed at all un Mooney v. Agnew. less it be removed as to all. We must have the whole of it if we are to have any; and because as to two of the defendants it is not removable, for that reason it is not removable as to any. We have heretofore held that in a cause in which judg ment has been rendered against some of the defendants and no appeal taken by those defendants from the judgment, that as to those defendants the controversy is ended; and so far as it is still an existing controversy standing between the plaintiff and those who still contest the right of the plaintiff, it may be removed into this court. But that is not the position of this case. The controversy is still going on, still waged between the plaintiff and the defendants against whom judgment has been taken, as well as against those against whom no judgment has been taken. If we consider further the attitude of the case in the state court, and the position of these parties who have been brought in, the reason for this conclusion will be more apparent. This writ which has been issued is in the nature of a writ of scire facias, and it is to make the other parties, the persons served, parties to the judgment which has been rendered against the two defendants, and from which an appeal has been taken. If it should result in the supreme court of the state that this judgment should be reversed, there would be no ground of proceeding against these parties who are now served, because they are to be made parties to the judgment which is already of record in the district court of the state. If that judgment should be removed by the action of the supreme court of the state, there would be no basis for proceeding against these defendants. This proceeding stands upon the theory that there is a judgment in the district court of the state to which these persons are to be made parties, and if that judgment should be reversed or set aside, there could be no proceeding against them. Of course we cannot be put in the position of having a suit here which will be subject to the contingency of reversal of the judgment of the district court of the state. The cause will be remanded according to the motion, |