NEGLIGENCE - DUTY TO RESCUE ONE IN PERIL - LAST CLEAR CHANCE

Plaintiff\u27s decedent was killed when his car, stalled on a grade crossing, was struck by defendant\u27s train. Plaintiff brought suit in a state court, joining with defendant company a resident signal tower watchman, who regulated the movements of two companies\u27 trains at a railroad intersection near the grade crossing. Plaintiff alleged that the individual defendant saw, or should have seen, the stalled automobile on the track, and that he failed to stop the train and neglected to use the signal devices he controlled. The case was removed to a federal court. On plaintiff\u27s motion to remand it was held, that the federal court had jurisdiction, as plaintiff had stated no cause of action against the resident signal tower watchman. Toadvine v. Cincinnati N. O. & T. P. Ry., (D. C. Ky. 1937) 20 F. Supp. 226