In this cause the parties will be referred to in the order of their appearance in the trial court. There, F.H. Witt brought suit for $50,000 in a personal injury action against the Chicago, R.I. P. Railway Company, a foreign corporation, in which he joined as a codefendant one Columbus Arney, employed as section foreman by the railroad company, who resided at the town of Yukon, Okla., where the alleged cause of action arose. Plaintiff alleged that he, without negligence on his part, suffered injury to his person at a particular street crossing over the railroad right of way through the town of Yukon, and predicated his right of recovery against defendants as follows:
"That it was the duty of the defendant, the Chicago, Rock Island Pacific Railway Company, its general manager, roadmaster, and the defendant Columbus Arney, to keep the above-mentioned streets, where they cross the defendant railway company's station grounds and right of way in the said town of Yukon, free from obstructions, and to maintain the said streets where they cross said station grounds and right of way free from obstructions and defects and in good condition for the use of the public, so that passengers and intending passengers, travelers on the highway and pedestrians, could use the said streets and highways without endangering themselves, and so that the usefulness of said streets and highways by the public should not be impaired, and which the defendants and each of them negligently and carelessly failed and omitted to do, as will hereinafter be more fully set out, and resulting in painful and permanent injuries to the plaintiff, as will be hereinafter described.
"That on or about the 13th day of January, 1923, at about 6:00 o'clock a. m., the plaintiff went to the said station at said town of Yukon for the purpose of taking a west-bound train. That he was told by defendant's station agent that the first train which would arrive would not carry him to his intended destination, but that he must wait for a later train; that while waiting for said train plaintiff had occasion to attend a call of nature and it appearing to plaintiff that there was a convenient place for that purpose on the north side of defendant railway company's tracks, he crossed the said tracks, walking north on Third street, and after being relieved was returning to the said railway station, walking south on said Third street, as it was necessary to do to reach the station, and while walking in a southerly direction on said Third street where it passes over the station grounds and right of way of said defendant railway company, his feet came in contact with one of the rails of said railway company's track, which said defendant railway company had carelessly and negligently laid across said street, and which the said company, its general manager, roadmaster, and section foreman, the said Columbus Arney, had negligently and carelessly maintained; that said rail constituted an obstruction in and across the said street, extending abruptly some six or eight inches above the level of said street, making it dangerous to travelers and pedestrians using the said street, and impairing the usefulness of same to the public; that it was dark and the said defendant railway company negligently and carelessly failed and omitted to sufficiently light that part of its said station grounds and right of way which were crossed by said street, so that plaintiff was unable to see said obstruction, and when his feet came suddenly and unexpectedly against the said rail, he was thrown violently to the ground and under a train which was moving in a westerly direction, causing him to be seriously and permanently injured."
In conformity to law, the defendant railroad company timely filed its petition for removal of the cause to the federal district court, wherein, following appropriate jurisdictional pleadings, it was alleged: *Page 248
"That the said Columbus Arney was wrongfully and fraudulently joined as a defendant in this said action, for the sole purpose of preventing a removal of this cause to the proper United States district court; that the joinder of said Columbus Arney as a party defendant in this cause was made in bad faith and without any reasonable basis therefor,"
for the reasons that the place of injury was not a public highway across its tracks, which had been laid by the defendant railway company,
"in the early part of the year 1917 at the proper and regular height, conformably to standard plans and specifications, and have ever since been and remained in identically the same place and position in which they were originally placed, and did not on the 13th day of January, 1923, and never have crossed over or in any way obstructed the said Third or any street or public highway in said town of Yukon.
"That the said Columbus Arney at no time while employed as section foreman, or in any other capacity by this petitioner, or upon the railroad of this petitioner, ever had any supervision or control over the laying and maintenance of said rails and railroad tracks at the place where plaintiff was injured, or any right or authority to interfere in any respect with the location of the same, or to move, raise, or lower the same from or out of the original location and position in which the same were placed in the year 1917, and that the said Columbus Arney in truth and in fact never in any way changed the location or position of said rails and tracks from or out of the place in which they were laid in the year 1917; that all of the facts hereinbefore alleged and set forth were intimately known to the plaintiff, or by the exercise of any degree of diligence could have been known to him, and that, as was well known to the plaintiff, the said Columbus Arney was not present at the time plaintiff received the injuries for which he seeks recovery of damages in this action, and was in no manner or respect accountable for or chargeable therewith."
To the petition of removal, plaintiff filed his response of dental of the grounds thereof. Upon hearing, the court denied the petition, to which ruling the defendant railroad company saved and preserved its exceptions. Thereupon defendants filed their separrate answers of general denial. Upon trial there was a jury verdict for the plaintiff and the defendant Arney. Judgment on the verdict against the defendant railroad company for $15,000 followed, from which the defendant railroad company appealed.
The defendant complains of the judgment under five specifications of error; the first and in our view the controlling assignment, being as follows:
"All proceedings had in said cause in the district court of Garvin county, Okla., subsequent to the filing of the petition for removal, with proper notice and the required bond, were coram non-judice and void."
Thereunder, the decisive question presented is: Does plaintiff's petition state a cause of action against the defendant Columbus Arney? If not, the court erred in denying the petition for removal and the proceedings subsequent to the adverse action were of no legal force or effect. New England Oil Pipe Line Co. v. Broyles, 87 Okla. 55, 209 P. 312, Ft. Smith W. R. Co. v. Blevins, 35 Okla. 378, 130 P. 529. In our consideration hereof it must necessarily be assumed, although denied in the petition for removal, that the place of injury was a public highway, as plaintiff asserts his right of recovery against the defendants upon their failure of compliance with section 5533, C. O. S. 1921, which provides as follows:
"It shall be the duty of every railroad company or corporation doing business, or operating a line of railroad, within this state, to construct a crossing across that portion of its track, roadbed, or right of way over which any public highway may run, and maintain the same unobstructed in a good condition for the use of the public, and to build and maintain in good condition all bridges and culverts that may be necessary on its right of way at such crossing; and in case any railroad company or corporation falls so to construct and maintain said crossing for 30 days after written notice by the road overseer of any road district or the council or board of trustees of any city or town in this state, or 50 petitioners of any city or town who are interested (where such work or repairs are needed), to be given to the section boss, or any station agent of any railroad company or corporation in the county (where such work or repairs are needed), it shall forfeit and pay to said county, road district, city or town complaining, the sum of $25 per day for every day said company or corporation may neglect to comply with the requirements of this section."
By virtue of this provision, it is not open to controversy that it is the legal duty of the railroad company to maintain public crossings over its railroad tracks and right of way in that condition of improvement to assure the safety and security of person of both traveling publie and its own employees. Chicaggo, R.I. P. Ry. Co. v. Taylor, 79 Okla. 142,192 P. 349.
In this state of the law, was it the duty of the section foreman as to third parties to maintain the crossing at which plaintiff suffered *Page 249 the injury, or was it a duty that he owed to his employer by virtue of his contract of employment? If there is seemingly a conflict among the earlier cases in our juridical history, it may now be regarded as the controlling rule of test in this class of cases that to constitute a cause of action against an employee or a servant by a third party, the negligence charged must express or establish some breach of duty which the employee or servant owed to the injured party in the performance of the duties owing to the master, for which breach the employee is answerable as a principal. Brower v. Northern Pac. Ry. Co., 109 Minn. 385, 124 N.W. 10, 25 L. R. A. (N. S.) 354; Haynes v. Cincinnati, N. O. T. P. R. Co., 145 Ky. 209, 140 S.W. 176, Ann. Cas. 1913B, 719; Sumey v. Craig Mountain Lbr. Co., 31 Idaho, 234, 170 P. 112; Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 So. 620, 28 L. R. A. 433; McGinnis v. Chicago, R.I. P. R. Co., 200 Mo. 347, 98 S.W. 590, 9 L. R. A. (N. S.) 880, 18 Am. St. Rep. 661, 9 Ann. Cas. 656; Burrichter v. Chicago, M. St. P. Ry. Co.,10 F.2d 165.
The negligence with which the defendant Arney is charged by plaintiff was that he "negligently and carelessly maintained" the railroad tracks which the "defendant railroad company carelessly and negligently laid across" the street where the injury occurred and which tracks so laid by the defendant company were the cause of his injury. There was a want of allegation of the facts to show the manner in which the defendant. Arney, either on his own motion, if it were his duty to so act under his employment, or at the direction of his employer, had undertaken to maintain the railroad tracks from which it may be determined that the defendant Arney was negligent either by commission or omission in a duty he owed to plaintiff in the performance of his duty as an employee of the railroad company. The negligence charged, in quality, was but the legal conclusion of the pleader without a statement of the facts thereof. "It is not sufficient to allege negligence merely as a legal conclusion, but facts must be exhibited showing in what the negligence consisted." Stokes v. Great Southern Lumber Co., 21 F.2d 185; Bryce v. Southern Ry. Co., 122 Fed. 709, 125 Fed. 958; Atlantic Coast Line R. Co. v. Bailey, 151 Fed. 891; Drake v. Hagon, 108 Tenn. 265, 67 S.W. 470; King v. City of Beaumont, 296 Fed. 531. The principle is our basic rule of pleading. Smith v. Board of Commissioners,26 Okla. 819, 110 P. 669; International Harvester Co. v. Cameron, 25 Okla. 256, 105 P. 189.
Even if the language of the pleader be given an extended application, the negligence of the defendant Arney as charged, if any, would clearly be that of nonfeasance to the master, for, as noted, the law under which this action was brought makes it the duty of the railroad company to maintain its tracks at a public highway crossing, and does not impose this upon the employees of the company, though the measure of their duty under their employment is that they cannot disregard with impunity their duty to third persons in the performance of their duties to the master. Of that character of negligence the plaintiff cannot rightly complain, as the rule appears to be well settled that such negligence is insufficient to sustain an action against a servant by third parties. 5 Thompson on Negligence, 244, section 5771; Mechem on Agency, 403, section 752. And the rule has often been judicially applied where the proposition under consideration was involved. Cincinnati, N. O. T. P. Ry. Co. v. Robertson, 115 Ky. 858, 25 Ky. Law, 265, 74 S.W. 1061; Floyt v. Shenango Furnace Co., 186 Fed. 539; Plunket v. Gulf Refining Co., 259 Fed. 968; Kelly v. Robinson, 262 Fed. 695; Macutis v. Cudahy Packing Co., 203 Fed. 291; Chicago, R.I. P. Ry. Co. v. Step, 151 Fed. 908; Bryce v. Southern Ry Co., supra; King v. City of Beaumont, supra; Prince v. Illinois Central R. Co., 98 Fed. 1; Kelley v. Chicago A. Ry. Co., 122 Fed. 286; Morefield v. Ozark Pipe Line Corporation, 27 F.2d 890.
Under the foregoing governing legal principles, therefore, we reach the conclusion, and we so hold, that in an action of tort by a third party, as here, against a section foreman joined as a party defendant with his employer, a railroad company, which is by law charged with the duty of constructing and maintaining a crossing over its railroad tracks and right of way at an intersection of a public highway, unobstructed and in a good condition for the use of the public, to recover for personal injuries alleged to have resulted from the master's negligent construction and maintenance of its tracks at such crossing, a petition which alleges that the employee "negligently and carelessly maintained" such tracks without a statement of facts showing in what the negligence of the employee consisted whereby he committed a breach of or omitted a duty to the injured party for which the employee may be held liable as a principal, fails to state a cause of action against the employee.
From this conclusion, under a well-settled rule of law, it necessarily follows that in such case, where the joined employee is a *Page 250 resident of the state and his employer a nonresident, and the petition on its face shows no cause of action against the resident employee, as here, the joinder of such employee is in law a wrongful joinder, and constitutes no bar to a removal of the cause to the district court of the United States; and that a denial of a petition for removal based on that ground and timely filed by the nonresident defendant is reversible error, where such petition alleges the requisite grounds of original federal jurisdiction of the cause as against the nonresident defendant. Floyd v. Shenango Furnace Co., supra; Macutis v. Cudahy Packing Co., supra; Chicago, R.I. P. Ry. Co. v. Step, supra; Prince v. Illinois Central R. Co., supra; King v. City of Beaumont, supra; Weicker v. National Enameling Stamping Co., 204 U.S. 176, 27 Sup. Ct. Rep. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Bryce v. Southern Ry. Co., supra; Wilson v. Republic Iron Steel Co., 257 U.S. 92, 66 L. Ed. 144; Union Pac. R. Co. v. Sleeth, 79 Colo. 548, 246 P. 1021; Salem Trust Company v. Manufacturers' Finance Company, 264, U.S. 182, 44 Sup. Ct. Rep. 266, 68 L. Ed. 628.
These conclusions necessarily determine this appeal, and do not require our consideration of the remaining assignments of error.
For the foregoing reasons, therefore, the judgment of the district court is reversed, and the cause remanded, with the direction to sustain the petition for removal.
LEACH, HERR, FOSTER, EAGLETON, and DIFFENDAFFER, Commissioners, concur. HALL, Commissioner, dissents.
RILEY, HEFNER, CULLISON, SWINDALL, and ANDREWS, JJ., concur. MASON, C. J., and HUNT and CLARK, JJ., dissent. LESTER, V. C. J., absent.