the defendant, Ed. Johnson, and of the negligence and carelessness of said Ed. Johnson in carelessly, recklessly and needlessly running said engine upon and against the said plaintiff, and of the careless failure of said Ed. Johnson in neglecting to use proper precaution to observe and avoid running upon and injuring the said plaintiff at the time and place in question, and in the carelessness of the defendant Railway Company in employing the said Ed. Johnson as engineer and in retaining him and allowing him to act as engineer at the time and place in question, and in the carelessness of the defendant Railway Company in knowingly retaining and using said defective engine at said time and place, and in carelessly failing to take proper precaution to prevent injury to said plaintiff at said time and place while engaged in the discharge of his duty as employé of said defendant Railway Company; and each and every act of omission and commission of the defendants and of each of them as above, were the joint, proximate and concurrent cause of said injury, and each of said acts of the said defendants materially, concurrently and jointly contributed to the injuries of said plaintiff, and plaintiff says that he was without fault or negligence in the premises."

The claim of a right to have the cause removed to the Circuit Court of the United States was that the requisite diversity of citizenship existed as between the plaintiff and the petitioning railroad company, and that there existed as between them a separable controversy.

But if the plaintiff alleges that the concurrent negligence of the railroad company and its employé, Johnson, was the cause of his injury, he has a right to join them in one action. If he elects to do so, it supplies no ground for removal because he might have sued them separately. Louisville & N. R. R. Co. v. Wangelin, 132 U. S. 599, 601; Powers v. C. & O. Railroad, 169 U. S. 92; Alabama & G. S. Railway v. Thompson, 200 U. S. 206.

The petition of the plaintiff below was in substance that the defective character of the engine, the unfitness and incompetency of Johnson, the engineer controlling it, and his negligence and carelessness in needlessly running the engine over him without the exercise of proper care and caution, "concurrently and jointly contributed to the injuries of said plaintiff," who was at the time in the exercise of due care.

But it is said that some of the matters charged against Johnson consisted in acts of non-feasance, and that an employer is not liable to a third person for conduct of that character.

Whether liability to a third person against a master may result from the servant's neglect of some duty owing to the employer alone, may be debatable. But we need not consider that question, since the plaintiff's declaration averred positive acts of negligence on the part of Johnson toward the plaintiff, namely, that while engaged in the company's service in the movement of the engine, he did not exercise that degree of care and skill which he was bound to exercise toward another servant engaged upon the tracks in the company's work. This was an act of misfeasance, for which he would be primarily liable, notwithstanding his contract relation to the employer and the liability of the latter for his negligent act under the Kansas statute abolishing the common law rule in respect of fellow-servants.

The state court held that the allegations of the petition stated a case of concurring negligence of master and servant for which they might be jointly sued. That court, also, aside from any positive acts of negligence, such as the retention of an incompetent servant in the control and management of an unmanageable engine, must be regarded as necessarily holding that under the law and practice of the State, it was admissible to jointly sue the company with the servant for whose negligent act it was

liable. Southern Railway v. Miller, 217 U. S. 209; Alabama &c. Ry. v. Thompson, supra.

Whether there was a joint liability or not was a question to be determined upon the averments of the plaintiff's statement of his cause of action, and is a question for the state court to decide. Railroad v. Thompson, supra;

Illinois Central Railroad v. Sheegog, 215 U. S. 308.

That the liability of the railroad company was statutory in so far as the common law fellow-servant rule had been abolished by statute, and the liability of Johnson dependent upon common law, was held by the Kansas Court not to preclude a joinder. "It is enough," said the court below, "if the concurrent acts of negligence of each contributed to the injury inflicted upon the plaintiff." Southern Railway v. Miller, supra.

But the petition for removal averred that the sole reason in joining Johnson was for the fraudulent purpose of defeating the right of the railroad company to remove the action. It is further insisted that this averment presented a question of fact which could be tried only in the Circuit Court of the United States.

Allegations of fact, if controverted, arising upon such a petition, are triable, only in the court to which it is sought to be removed. Illinois Central Railroad v. Sheegog, supra. But if the petition was insufficient upon its face, the state court might for that reason deny it. It is well settled that the mere averment that a particular defendant had been joined for the fraudulent purpose of defeating the right of removal which would otherwise exist, is not in law sufficient. If the plaintiff had a right to elect whether he would join two joint tort-feasors, or sue them separately, his motive in joining them is not fraudulent, unless the mere epithet "fraudulent" is backed up by some other charge or statement of fact. Illinois Central Railroad Co. v. Sheegog, supra.

Neither did the allegation that the defendant Johnson VOL. CCXXIX-8

was a man of small means and the responsibility of the railroad company unquestioned, serve to show any actual fraudulent purpose in joining him as a defendant. If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance. Chicago, R. I. & P. Ry. v. Schwyhart, 227 U. S. 184; Deere, Wells & Co. v. Chicago, M. & St. P. Ry., 85 Fed. Rep. 876; Welch v. Cincinnati &c. Ry., 177 Fed. Rep. 760.

There was no error in denying the petition to remove. Judgment affirmed.

NORFOLK & WESTERN RAILWAY COMPANY v.

EARNEST.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF VIRGINIA.

No. 153. Argued January 29, 30, 1913.-Decided May 26, 1913.

The truth of evidence tending to show a custom as to where switchmen walk in a railroad yard is for the jury to determine; and if true it is the duty of an engineer, in the exercise of ordinary care to watch for a switchman whom he knows is in the usual locality and in front of his engine.

It is not error to refuse an instruction as to assumption of risk which is couched in such sweeping terms that it could not enlighten the jury as to the particular phase of the case to which it is deemed applicable.

Fairness to the court requires one objecting to a particular part of the charge as misleading to call special attention to the words in order that the court may either modify or explain them.

An instruction that contributory negligence of the employé goes by way of diminution of damages, held not error because the statute says that in such a case the jury must diminish the damages, it appearing that the words objected to followed an instruction that the

damages in such a case shall be diminished by the jury, and the words objected to were meant to give effect to, and not to qualify, the previous instruction.

The purpose of the provision in regard to contributory negligence in the Employers' Liability Act is to abrogate the common-law rule of complete exoneration of the carrier from liability in case of any negligence whatever on the part of the employé and to substitute therefor a new rule confining the exoneration to a proportional part of the damages corresponding to the amount of negligence attributable to the employé.

Where an instruction embodies several propositions of law, to some of which no objection can properly be taken, a general exception does not entitle the exceptor to take advantage of a mistake or error in some single or minor proposition of law.

THE facts, which involve the liability of a railroad for personal injuries sustained by one of its employés while both were engaged in interstate commerce, and the construction of the provisions of the Employers' Liability Act of 1908 in regard to contributory negligence, are stated in the opinion.

Mr. Roy B. Smith and Mr. John H. Holt, with whom Mr. Theodore W. Reath was on the brief, for plaintiff in

error.

Mr. Bynum E. Hilton, and Mr. Thomas Lee Moore, with whom Mr. Harold J. Pack and Mr. Samuel B. Pack were on the brief, for defendant in error.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This was an action against a railroad company to recover for personal injuries sustained by an employé while both were engaged in interstate commerce. The plaintiff secured a verdict and judgment in the Circuit Court, and the defendant sued out this direct writ of error, claiming