Cincinnati N. O. & T. P. Ry. Co., &c. v. Cook's Admr. CASE 24-ACTION TO RECOVER DAMAGES FOR THE DEATH OF PLAINTIFF'S Cincinnati, N. O. & T. P. Ry. Co., &c. v. Cook's Admr. APPEAL FROM MERCER CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED. REMOVAL OF CAUSES TO FEDERAL COURT-JOINDER OF MASTER AND SER- Held: 1. Under Kentucky Statutes, section 6, a corporation and its servant may be sued jointly for a death resulting from the negligence of the servant. 2. Where a non-resident corporation and its resident servant are properly joined as defendants, the non-resident defendant is not entitled to have the cause removed to the federal court. 3. Where a brakeman, who had gone to uncouple a car for the purpose of leaving it on a side track, being on the fireman's side of the train, gave through him a signal to the engineer for slack when he reached the car, whereupon the engineer backed the train a little, and then in a short time again backed the train upon a signal received from the brakeman on his side of the train, without waiting for any signal from the brakeman on the fireman's side, who was then between the cars for the purpose of uncoupling the car to be detached, it was a question for the jury whether, under the rules and the usual course of doing the work (which required the engineer not to move the train when he knew a brakeman was uncoupling, without à signal from him, or notice of his safety), the engineer was guilty of negligence in backing the train upon the signals given without any knowledge of the latter brakeman's whereabouts; for, while the cars were provided with automatic couplers, which rendered it unnecessary ordinarily for brakeman to go between cars to uncouple them, the signal for slack gave notice to the Vol. 113-11 f131 Cincinnati N. O. & T. P. Ry. Co., &c. v. Cook's Admr. engineer that something was wrong, and he knew that the brakeman would have to go between the cars if the bar of the automatic coupler did not work, which was the case. 4. Under Kentucky Statutes, section 6, giving a right of action for death caused by defendant's negligence or wrongful act, the court properly instructed the jury that they might allow compensatory damages if there was ordinary negligence, and punitive damages if there was gross negligence. 5. Under that statute there may be a recovery against the master for the death of a servant resulting from the ordinary negligence of a superior servant engaged in the same employment, though there could have been no recovery for the injury if it had not resulted in death. 6. The fact that plaintiff alleged gross negligence did not preclude him from recovering upon proof of ordinary negligence, as there was merely a failure to prove a part of his allegation. 7. Declarations of the engineer of the train, made several hours after the injury was inflicted, were not admissible against the master. not being a part of the res gestae,, but were admissible against the engineer himself, who was joined as a defendant, and the court properly so instructed the jury. 8. Evidence having been admitted which was competent against one of the defendants and not against the other, it was error to instruct the jury that, if their verdict be for plaintiff, it "shall be" against both defendants. 9. Defendants should be permitted on another trial to read to the jury the rules of the company in regard to the obedience of sig nals by the engineer. GAITHER & VANARSDALL, FOR APPELLANTS. ROBT. HARDING, E. M. HARDIN AND C. A. HARDIN, FOR AP PELI EES. (No briefs in the record). OPINION OF THE COURT BY JUDGE HOBSON-REVERSING. This action was filed on February 23, 1901, by appellee to recover for the death of his intestate, against the Cincinnati, New Orleans & Texas Pacific Railway Company and Fred Milligan, who was an engineer in its service. It was charged in the petition that the death of the intestate was due to the negligence of Milligan, as engineer in the service of the railroad company, in moving a train under his charge. Cincinnati N. O. & T. P. Ry. Co., &c. v. Cook's Admr. At the May term of the circuit court the railroad company filed a petition for removal of the case to the circuit court of the United States, alleging that it is a resident of the State of Ohio, and that Milligan was improperly joined with it as a codefendant for the fraudulent purpose of defeating the jurisdiction of the United States court. The court overruled the motion, and this is the first question to be determined on the appeal. It is earnestly maintained that the joinder of the defendants is improper; that for the one act of the servant he can not be sued jointly with his master, and that his act must be treated either as that of an individual or that of an agent. In support of this position we are referred to several cases outside of this State so holding. But the desired weight of authority is the other way. See 15 Ency. I'l. Prac., 560; 1 Thomp. Neg., 611. The conflict in authority on the question seems to be due largely to differences of the common law forms of pleadang, which no longer exists in this State. In Pom. Rem. & Rem. Rights, section 307, it is said: "In general, those who have united in the commission of a tort to the person or to property, whether the injury be done by force or be the result of negligence or want of skill or of fraud and deceit, are liable to the injured party without any restric tion or limit upon his choice of defendants against whom he may proceed. He may, at his option, sue all the wrongdoers in a single action, or may sue any one, or may sue each in a separate action, or may sue any number he pleases less than all. The fullest liberty is given him in this respect. The only exceptions are those few instances in which the tort from its very nature must be a separate act, impossible to be committed by two or more jointly. A sheriff and his deputy may be sued jointly for the trespasses and other wrongful acts done by the latter in his official capac Cincinnati N. O. & T, P. Ry. Co., &c. v. Cook's Admr. ity; the deputy because he actually commits the tort, and the sheriff because he is the principal." In a note to this a number of cases are collected, and among other illustrations, these are given: "An action against principal and agent for negligence of the agent; . . . an action against one partner for negligence by the firm." See, also, Bliss, Code Pl., section 83. This rule was followed by this court in Railroad Co. v. Dixon's Adm'x, 104 Ky., 608 (20 R., 792) (47 S. W., 615) and in Railroad Co. v. 'Winston's Adm'r, 111 Ky., 954 (23 R., 1283) (65 S. W., 13), and in the latter case the court, after quoting section C, Kentucky Statutes, giving the right of action in such cases, said: "By the terms of this section, where death results from the negligent act a recovery may be had therefor against the person or persons, company of companies, corporation or corporations, their agents or servants, causing the same. . The plain tiff has a right to proceed severally or jointly against those who are liable for the injury inflicted resulting in death." We are therefore of opinion that the circuit court properly refused to remove the case to the federal court. It is also earnestly insisted that there was no testimony showing negligence on the part of the engineer, Milligan, and that a peremptory instruction should have been given. The evidence on behalf of the appellee tended to establish these facts: The engineer, fireman and two brakeman were engaged in transferring cars from the main line to the side track in the yards of the company in Burgin, Ky., the intestate being one of the brakemen. The purpose was to leave a car on the side track. To do this, the engineer was required to back the cars in on the side track, there being a number of cars between the engine and the car intended to be left. The ears were provided with automatic couplers, which were operated by a bar extending out from the coup Cincinnati N. O. & T. P. Ry. Co., &c. v. Cook's Admr. ler to the side of the car, so that the brakeman could take hold of it while standing on the outside of the car and uncouple the cars without danger. The intestate was on the fireman's side of the engine, and went down on this side to uncouple the car in question. The other brakeman was on the other side of the train to turn the switch so that when the car was uncoupled it might be pushed in on the side track. The engineer could see this brakeman, but he could not see the intestate, Cook, who was on the other side of the train from him; and neither could his fellowbrakeman. Cook communicated with the engineer by sig. nals to the fireman, who reported them to the engineer. When Cook got to the car that was to be cut off, he sig naled for slack, which meant that the engineer must back the train a little. The engineer did this. Cook gave the stop signal, and the engineer stopped after the train had only moved from three to six feet. The iron bar of the automatic coupler was bent, and would not work the coupler, so Cook went in between the cars after he got the slack to raise the pin with his hand, as it was his duty to do. While he was doing this, the other brakeman, who had turned the switch, and did not know of the difficulty Cook had met with in uncoupling the car, gave a signal to the engineer to come on, and the engineer, without a signal from Cook, or without knowing whether he was out or not, began backing the train down to the switch. In this way Cook was caught between the cars, and dragged some 20 feet, his breastbone and ribs were crushed and mashed, and he died in a few minutes. The proper course of doing the work under the rules required the engineer not to move the train, when he knew a brakeman was uncoupling, without a signal from him, or notice of his safety. It is said that the engineer did not know that Cook was in between the |