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U.S. Supreme Court

McAllister v. Chesapeake & Ohio Ry. Co., 243 U.S. 302 (1917)

McAllister v. Chesapeake & Ohio Railway Company

No. 748

Submitted January 30, 1917

Decided March 6, 1917

243 U.S. 302


An order of a district judge allowing a writ of error from this Court and containing a recital that the judgment was based solely upon lack of jurisdiction supplies the place of the certificate required by § 238, Judicial Code.

An allegation in a petition for removal that the plaintiff's motive in joining resident and nonresident defendants is to prevent removal to the federal court is not, in itself, sufficient ground for removal, but specific facts supporting the charge of fraud must be alleged.

When the plaintiff's petition states a case of joint liability in tort under the state law against a resident and a nonresident defendant and the petition to remove the case on the ground that it contains a separable controversy fails to aver facts showing that the joinder is fraudulent, the district court must remand.

Under the law of Kentucky, a railroad company, though not required by speed laws, must nevertheless take notice of the places where numerous people are accustomed to cross or otherwise to be upon its tracks, and, by moderating speed, maintaining proper look-out, and giving proper signals, must exercise due care to save them from injury by trains. Failure to observe this duty resulting in injury or death is actionable negligence.

Under the law of Kentucky, lessor and lessee railroad companies are jointly liable for injury or death inflicted on persons on the chanrobles.com-red

Page 243 U. S. 303

tracks, not trespassers, by the negligence of the lessee in operating trains.

A petition averring that plaintiff's decedent, while at or near a public crossing in a town where numerous people were accustomed to be and travel, as lessor and lessee companies well knew, and while in plain view of their agents and servants, was negligently and wantonly run down and killed, without fault on his part, by a train operated by the lessee, and specifying that the negligence consisted in excessive speed -- fifty miles an hour, failure to keep proper lookout for travelers at such a place, and failure to give adequate signals or warnings of the approaching train -- states a cause of action against both companies under the law of Kentucky.

198 F.6d 0 reversed.

The case is stated in the opinion.


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