Humphreys, J.
This is an appeal from a judgment rendered in the circuit court of White County against appellant for injuries received by appellee at the public crossing where the highway crosses appellant’s railroad track near Protho’s gin in Pulaski County, in a collision between appellant’s freight train and appellee’s motor truck between 10:00 and 11:00 o’clock on the night of May 8, 192(8.
Appellee joined the engineer, E. Gr. Medlock, operating- the locomotive at the time of the collision, with the appellant as co-defendant, alleging their concurrent negligence as grounds for a recovery against both. The allegations of concurrent negligence are contained in paragraph (c) of the complaint, which is as follows:
“The said defendants, and each of them, then and there neglected and wholly failed to ring the bell or siound the whistle of the engine of said train at all, as the said train approached said crossing, or to give any signal whatever to warn persons of the approach of said train, although said crossing was upon one of the most constantly used highways in the State, and many people were then and there almost constantly coming- and going along said highway and over said crossing, which fact was known 'by said defendants; the said defendants therefore failed to exercise ordinary care for the safety of persons then and there about to cross over said crossing, in violation lof the duties imposed upon said defendants by law, but carelessly and negligently ran said train over said crossing, and struck the plaintiff and truck in which he was then and there riding, causing the plaintiff’s injuries as aforesaid, and said defendants then and there knew that plaintiff was approaching said crossing in his said truck, and said defendants then and there knew, because of the darkness of the night, and because of the fact that no bell had been rung or was being rung and no whistle had been sounded or was being sounded upon the engine of said train, and the headlight on said engine was s;o defective, that it could not be seen at a safe distance by travelers upon said highway, that the plaintiff did not know said train was approaching said crossing, yet, with full knowledge of the plaintiff’s said peril, said defendants then and there negligently, wilfully and maliciously ran said train over said crossing, and struck the plaintiff and his said truck, and injured him as aforesaid.”
Appellant filed a petition in apt time to remove the cause to the United States District Court, in due form and accompanied by proper bond, which contained, in addition to- an allegation of diversity of citizenship, the following averment:
“That it is alleged in paragraph (c) of the complaint that E. -Gr. Medloek, an engineer on a train of the defendant, which it is alleged struck a truck driven by the plaintiff; knew that the plaintiff was approaching the crossing- at which said alleged collision took place. Petitioner alleges as a fact that at the time of said alleged collision the defendant E. Gr. Medloek, as engineer of said train, had passed said crossing, was several hundred yards therefrom, and could not have known that plaintiff was approaching said crossing, and that these facts were known to the plaintiff at the time the complaint herein was prepared and filed, and said allegations were made by plaintiff fraudulently, and for the sole purpose of preventing a removal of this cause to the United -States District Court.”
The trial court refused to- transfer the cause to the United States District Court, over appellant’s objection -and exception, although the request to transfer was renewed after all the evidence had been introduced.
The record reflects, in substance, the following facts:
Appellee, with two guests, A. B. Brewer and Opal Padgett, was driving his truck friom Beebe to Little Bock, and, after crossing the Iron Mountain Bailr-o-ad, all of them began and continued to listen in both directions for a whistle or bell as they approached the crossing near Protho’s gin, and, hearing none, continued to travel, still listening, at the rate of twenty-five or thirty miles an hour until within about one hundred .feet (estimated) of said crossing, when they observed appellant’s through freight near to or on said crossing running east towards Memphis. The train was running about thirty-five miles an hour. Although looking, they had been unable to see any headlight on the train. Immediately upion the discovery of the train on or near the crossing appellee applied the foot and emergency brakes, which were in good repair, turned off the switch, and put the engine in gear, but, failing to* stop the truck in time to prevent a collision, turned it to the right in an effort to do so, and ran into either the comer of the first box car or the twentieth box car in the rear of the locomotive. The three occupants of the truck testified that the corner of the first box car behind the engine struck the automobile, and Opal Padgett, who recovered consciousness immediately, testified that other box cars bumped ag’ainst the truck as they passed along. One of appellant’s employees fiound the radiator of the truck hung onto the corner of the twentieth box car following the locomotive, when he inspected the train after same reached 'Carlisle. Appellee met two automobiles just before he discovered the train, which had passed over the crossing in front of said train. Ben Hodges, in company with Lon Etson, was driving* the second car which appellee met just before he discovered the train near or on the crossing. They both testified that, as they approached the crossing near Protho’s gin, they were listening and watching in both directions for a train, and did not hear any bell or whistle, and did not see the headlight of the train, although there was nothing between them and the train to prevent them hearing, or to obstruct their view. They also, testified that, after meeting and passing* appellee, they heard a noise, and looked back, and saw a train moving over the crossing, but heard no bell or whistle. Appellee further testified that he thought, at the rate of speed he was traveling, that he could stop his truck within a space of about thirty-two feet by applying his brakes, but that he might not be able to do so on a concrete road. The highway at this point had a concrete surface.
The employees operating the train testified that the headlight was in good repair, shining brightly, and that they were sounding" the whistle and ringing the bell continuously, for a distance of eighty rods before reaching the crossing near Protho’s gin.
Appellant first contends for a reversal of the judgment because the trial court refused to grant its petition for the removal of the cause to the United States District Court. It is argued that paragraph (c) of the complaint failed to state a' joint cause ;of action against appellant and E. Gr. Medlock, and that its petition for a removal to the United States District Court contained a statement of facts showing that the joinder of E. Gr. Medlock with appellant was a fraudulent device to prevent a removal of the cause. Our .attention is called to the allegation in the petition to the effect that E. G. Medlock, the engineer, had passed the crossing, was several hundred yards therefrom, and could not have known that appellee was approaching the crossing, and that these facts were known to appellee at the time the complaint was prepared and filed.
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Humphreys, J.
This is an appeal from a judgment rendered in the circuit court of White County against appellant for injuries received by appellee at the public crossing where the highway crosses appellant’s railroad track near Protho’s gin in Pulaski County, in a collision between appellant’s freight train and appellee’s motor truck between 10:00 and 11:00 o’clock on the night of May 8, 192(8.
Appellee joined the engineer, E. Gr. Medlock, operating- the locomotive at the time of the collision, with the appellant as co-defendant, alleging their concurrent negligence as grounds for a recovery against both. The allegations of concurrent negligence are contained in paragraph (c) of the complaint, which is as follows:
“The said defendants, and each of them, then and there neglected and wholly failed to ring the bell or siound the whistle of the engine of said train at all, as the said train approached said crossing, or to give any signal whatever to warn persons of the approach of said train, although said crossing was upon one of the most constantly used highways in the State, and many people were then and there almost constantly coming- and going along said highway and over said crossing, which fact was known 'by said defendants; the said defendants therefore failed to exercise ordinary care for the safety of persons then and there about to cross over said crossing, in violation lof the duties imposed upon said defendants by law, but carelessly and negligently ran said train over said crossing, and struck the plaintiff and truck in which he was then and there riding, causing the plaintiff’s injuries as aforesaid, and said defendants then and there knew that plaintiff was approaching said crossing in his said truck, and said defendants then and there knew, because of the darkness of the night, and because of the fact that no bell had been rung or was being rung and no whistle had been sounded or was being sounded upon the engine of said train, and the headlight on said engine was s;o defective, that it could not be seen at a safe distance by travelers upon said highway, that the plaintiff did not know said train was approaching said crossing, yet, with full knowledge of the plaintiff’s said peril, said defendants then and there negligently, wilfully and maliciously ran said train over said crossing, and struck the plaintiff and his said truck, and injured him as aforesaid.”
Appellant filed a petition in apt time to remove the cause to the United States District Court, in due form and accompanied by proper bond, which contained, in addition to- an allegation of diversity of citizenship, the following averment:
“That it is alleged in paragraph (c) of the complaint that E. -Gr. Medloek, an engineer on a train of the defendant, which it is alleged struck a truck driven by the plaintiff; knew that the plaintiff was approaching the crossing- at which said alleged collision took place. Petitioner alleges as a fact that at the time of said alleged collision the defendant E. Gr. Medloek, as engineer of said train, had passed said crossing, was several hundred yards therefrom, and could not have known that plaintiff was approaching said crossing, and that these facts were known to the plaintiff at the time the complaint herein was prepared and filed, and said allegations were made by plaintiff fraudulently, and for the sole purpose of preventing a removal of this cause to the United -States District Court.”
The trial court refused to- transfer the cause to the United States District Court, over appellant’s objection -and exception, although the request to transfer was renewed after all the evidence had been introduced.
The record reflects, in substance, the following facts:
Appellee, with two guests, A. B. Brewer and Opal Padgett, was driving his truck friom Beebe to Little Bock, and, after crossing the Iron Mountain Bailr-o-ad, all of them began and continued to listen in both directions for a whistle or bell as they approached the crossing near Protho’s gin, and, hearing none, continued to travel, still listening, at the rate of twenty-five or thirty miles an hour until within about one hundred .feet (estimated) of said crossing, when they observed appellant’s through freight near to or on said crossing running east towards Memphis. The train was running about thirty-five miles an hour. Although looking, they had been unable to see any headlight on the train. Immediately upion the discovery of the train on or near the crossing appellee applied the foot and emergency brakes, which were in good repair, turned off the switch, and put the engine in gear, but, failing to* stop the truck in time to prevent a collision, turned it to the right in an effort to do so, and ran into either the comer of the first box car or the twentieth box car in the rear of the locomotive. The three occupants of the truck testified that the corner of the first box car behind the engine struck the automobile, and Opal Padgett, who recovered consciousness immediately, testified that other box cars bumped ag’ainst the truck as they passed along. One of appellant’s employees fiound the radiator of the truck hung onto the corner of the twentieth box car following the locomotive, when he inspected the train after same reached 'Carlisle. Appellee met two automobiles just before he discovered the train, which had passed over the crossing in front of said train. Ben Hodges, in company with Lon Etson, was driving* the second car which appellee met just before he discovered the train near or on the crossing. They both testified that, as they approached the crossing near Protho’s gin, they were listening and watching in both directions for a train, and did not hear any bell or whistle, and did not see the headlight of the train, although there was nothing between them and the train to prevent them hearing, or to obstruct their view. They also, testified that, after meeting and passing* appellee, they heard a noise, and looked back, and saw a train moving over the crossing, but heard no bell or whistle. Appellee further testified that he thought, at the rate of speed he was traveling, that he could stop his truck within a space of about thirty-two feet by applying his brakes, but that he might not be able to do so on a concrete road. The highway at this point had a concrete surface.
The employees operating the train testified that the headlight was in good repair, shining brightly, and that they were sounding" the whistle and ringing the bell continuously, for a distance of eighty rods before reaching the crossing near Protho’s gin.
Appellant first contends for a reversal of the judgment because the trial court refused to grant its petition for the removal of the cause to the United States District Court. It is argued that paragraph (c) of the complaint failed to state a' joint cause ;of action against appellant and E. Gr. Medlock, and that its petition for a removal to the United States District Court contained a statement of facts showing that the joinder of E. Gr. Medlock with appellant was a fraudulent device to prevent a removal of the cause. Our .attention is called to the allegation in the petition to the effect that E. G. Medlock, the engineer, had passed the crossing, was several hundred yards therefrom, and could not have known that appellee was approaching the crossing, and that these facts were known to appellee at the time the complaint was prepared and filed. The allegation of a fraudulent joinder in the petition for removal is directed at the latter part of paragraph (c) in the complaint. A complete joint cause of action is sufficiently alleged in that portion of paragraph (c) down to and including the word “aforesaid” just before the first semi-colon in the paragraph. It was so ruled in the case of Burke v. Missouri Pacific Rd. Co., 294 Fed. 1913, and the rule announced in that case is supported by the decisions of the ¡Supreme 'Court of the United States cited therein. The facts alleged in the first part of paragraph (c) of the complaint referred to were not traversed by the allegations in the petition for removal and, as they state complete joint cause of action against appellant and E. G-. Medlock, the engineer, it is apparent that the petition for removal was insufficient on its face to deprive the trial court of its jurisdiction to try the cause. No facts were set forth therein tending to show that the joinder of appellant and E. G-. Medlock in that part of paragraph (c) was a fraudulent device to prevent a removal of the cause. We also think the court properly retained jurisdiction to try the cause after all the evidence had been introduced upon the renewal of appellant’s petition to remove said cause to the United States District Court. The record reflects ample evidence of a substantial nature to sustain the allegations of fact contained in the first part of paragraph (e) in the complaint heretofore referred to.
Appellant’s next contention for a reversal of the judgment is the refusal of the trial court to peremptorily instruct a verdict for it.
The facts in the instant case 'bring it within § 8575 of Crawford & Moses’ Digest, commonly known as the comparative negligence statute, as there is substantial evidence in the record tending- to show negligence on the part of appellant and its employees, as well as,t° show contributory negligence on the part of appellee.
The testimony introduced by appellee tended to show either that the headlight on the locomotive was not functioning or was in bad repair, and that the bell was not ringing and whistle not blowing as the train approached the public crossing near Protho’s gin.
The testimony introduced by appellant tended to show that appellee approached said crossing without exercising ordinary care for his own safety by listening for warning signals that were given, and watching for the train, the headlight of which could have been seen within time to have stopped his truck and prevent the injury.
The rule of the comparative negligence statute is that an injured party, guilty himself of contributory negligence, cannot recover damages for an injury unless his negligence is of less deg'ree than the negligence of the railroad company or its employees.
The facts detailed above presented the issue of whether appellant was to blame in greater degree than appellee for the collision resulting in the injury, and, on account of the conflict in the evidence, the issue was properly determinable by the jury, not by the court.
Appellant argues that, because appellee did not stop his truck after discovering the train, and thereby prevent the injury, it must be said, as a matter of law, that he was to blame in equal or greater degree than the appellant for the collision and consequent injury. The distance he was from the train when he discovered it was only an estimate, and the evidence tends to show that he did all in his power to stop the truck, and avoid the collision after he discovered the train. He did not testify positively the distance he was from the train when he discovered it, nior that he could stop his truck within thirty-two feet on >a hard surface road. The undisputed evidence does not show that he was driving at a reckless rate of speed, or that he could have discovered before he did that a train was coming by listening for signals and watching for same. The evidence tended to show that he did both.- The court therefore submitted the issue to the jury for determination under correct instructions. Appellant’s criticism of instruction No. 6 to the effect that it was abstract is not supported by the record.
No error appearing, the judgment is affirmed.