The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-13
TAKESRANK HOLT
The Southern Wants to
Get in Federal Court.
Its Freight Agent at Greensboro
Makes Remarkable Affidavits
In Novel Case.
In Novel Case.

Greensboro. n. c., Dec. 12.-There is
very interesting legal controversy invol-
we'd in a suit for fifty thousand dollars
damages brought In Guilford Superior
John p. Somers against the Southern Ry.
Co.. and G.. A. Owen, a section master
or the company. The action was origi
nally brought against the h. r. Co. alone
The railway Company proceeded to have
the case removed TO the Federal Court
by filing an order from Judge Boyd in
the clerks Office, upon the ground set
forth IN the necessary affidavits of agents
oil the company of prejudice and local
influence. When the case was docketed
il the u. S. Circuit court here, the at
torney for the plaintiff took a non-suit
and 1t went out of court Soon there
after, another summons was issued
against the railroad company and G. a.
Owen, the plaintiff being conductor Som
ers, as IN the other case, and the amount
OF damages claimed being $4,000 again.
AS IN the original suit, the railway com
pany, through William L. Coffin, its
freight agent at Greensboro, filed another
AFFIDAVIT OF removal from the State to
the Federal court, and this week, an
order was fled with the clerk of the State
court, signed by Judge Boyd, removing the
case to the Circuit court. The affidavit
filed by Agent Coffin, was something out
OF the ordinary. in that 1t takes a little
ranker "hoit" on the local prejudice
question than any of the best men in the
community say is justiflable. Among
other things he swears TO this curious
cause Tor prejudice; 80 the business
OF the railroad company has been so
large in volume, 1t has not been practi-
cablo to handle it with sufficient dispatch
TO avoid becoming victim to very gem
eral hostile criticism of its service
's'"Anothcr cause of local prejudice is
given from the fact, as alleged, that
suits OF one kind or another aggregating
100 are now on the Superior Court Dock
ct OF Guilford county against this cor
poration. and owing to the tact that Its
lines permeate the county, and is the
only railroad IN 1t, very large number
OF people are directly interested in liti-
cation, and therefore 1t would be diff
cult to select a jury OF citizens wholly
disinterested and wholly unlnnuencee
against the defendants 1t is also alleged
as a ground for removal on account of
prejudice, that claimants in other coun-
ties and even in other states have pre-
forred In many cases to litigate claims In
Guilford county But the sockdologer
which hurts. and is viewed with much
local disfavor by some, who have OF
hestated to express themselves. is the
closing paragraph of agent Coffin's affi-
davlt to-wit so numerous are claim
ants against defendant. that many have
come to look upon Guilford county as the
mecca for litigation against it,
A feature of this last suit, which dis
tinguishes it from the first, Is of general
interest to the legal profession. I'm that
as now brought, the attorney for the
plaintiff hopes TO get it remanded from
the Federal Court. back TO the State
Court, and has lodged n motion before
Judge Boyd To that effect This motion
will be heard, and the question passed
upon by Judge Boyd at the coming Janu.
AT term of the Circuit Court here. The
facts, as alleged in the complaint are
these: John u. Somers, conductor OF a
freight train at four o'clock one morn
ing in August. at Benaja, n. c.. lost both
of his arms in an accident on the rail
road, under the following alleged circurl.
stances. His train was being pushed to-
wards caboose on the main line, h.
stepped in between his train 10 put the
air brake on the wheels. when he Stun
blcd and fell over large stake which
had been driven into the road bed by
G. \. Owen, n road section master. abou:
three months before and which was pro-
jecting Z or inches above the cross
ties.
The present suit is brought against
10th the section master and the railroad
company. charging them with Joint negh-
gence and joint tort. The section master
is resident of North Carolina. and the
point 10 be contended for By the plain
tin, and 10 be determined by the court.
j. whether the local prejudice act M.
plies In case of joint liability where one
OF the defendants is resident and the
plaintiff is resident of the same state.
IL Is admitted that some of the Circuit
Court judges have decided this question
ono way. and some another. The lawyers
heard discussing this phase of the case.
seem TO be of the opinion. that the con-
trarlety of decisions on the sanc points
OF law. as the reports show Won the
Circuit court judges minimize their
force as safe p-ecedents. IL Is further
stated that the Supreme Court of the
United States has decided that where
controversy is not separahlc, that the case
is not removable from a state to the Fed
eral court under the local prejudice act
OF the Federal Statutes, but that the
practice OF the state courts will apply.
II is upon this decision. il is said. the
plaintiff relies in his molten before Judge
Boyd. 20 remand the case 10 the State
Court. The argument on the question
promises 10 be very searching and in
structive. ii not warm. on both sides.
with n strong proha bilitv. that whatever
may be Judge Boyd's ruling n tho prem
fscs. the case will be taken to the UnitSf
states Supreme Court. II is said that one
Of the points relied upon by the defen-