Smith v. Southern Pac. Co. (Two Cases)

The above entitled cases arise out of a railroad crossing accident near Salem,- Ore-' gon between a freight train of the Southern Pacific Company and an automobile in which the plaintiff and plaintiff’s decedent were passengers. Plaintiff, herein referred to as appellant, brought one suit as the ad-ministratrix of the estate of her deceased husband in one case and as a suitor in her own behalf for personal injuries in the other. Both cases involve the same facts and basic issues. They were consolidated for trial and are consolidated on this appeal. The cases were tried to the court without a jury and resulted in judgment for the defendants. All comments in this opinion refer to both cases.

The only question presented on this appeal is whether the cases were improvidently removed from the state court. The action was commenced in the state court naming as defendants the Southern Pacific Company, a Delaware Corporation and one T. C. Gerousbeck. That portion of the complaint with which we are now concerned will be set out fully later in this opinion. At this point it is sufficient to state that the individual defendant is not identified in the complaint other than his name appears on…