Tuder v. Oregon Short Line Railroad Company

Decision Date10 December 1915
Docket Number19,463 - (118)
Citation155 N.W. 200,131 Minn. 317
PartiesHENRY TUDER v. OREGON SHORT LINE RAILROAD COMPANY
CourtMinnesota Supreme Court

Action by the mother of plaintiff minor to recover $50,000 for injury received by him while in the employ of defendant. The case was tried before Dickson, J., who ruled that he would compel plaintiff to elect upon what theory he would proceed as stated in the second paragraph of the opinion. Plaintiff declined to make the election and the court dismissed the action. From an order denying his motion for a new trial plaintiff appealed. Reversed.

SYLLABUS

Complaint -- pleading and proof.

1. Under the code, a plaintiff may allege all the facts which give rise to his cause of action, and may recover if he prove sufficient of such facts to entitle him to relief.

Negligence -- complaint -- election of ground of recovery.

2. In an action for damages resulting from negligence, he may allege all the grounds giving rise to his cause of action, and is not required to elect, at the beginning of the trial, whether he will establish by his proofs one or another of such grounds.

Barton & Kay and W. T. Currigan, for appellant.

Edward P. Sanborn, for respondent.

OPINION

TAYLOR, C.

The complaint contains allegations to the effect that defendant operates a line of railroad from Butte in the state of Montana to and beyond Ogden in the state of Utah, and is engaged in transporting freight and passengers in interstate commerce thereover; that, at said city of Butte in the state of Montana, defendant employed plaintiff and other men to go from said city to a place beyond the city of Ogden in the state of Utah and there work upon the railway tracks used by defendant in its interstate commerce; that plaintiff together with the other men so employed entered a train at Butte for the purpose of being transported by defendant over its railway to the place where they were to perform their work, and were in charge of a foreman of defendant; that the train arrived at Ogden and the foreman stated that it would stop 30 minutes for lunch; that the plaintiff left the train, procured a lunch and returned in 15 minutes to re-enter the train but found it had gone; that, pursuant to instructions from defendant's representatives at Ogden, plaintiff boarded a freight train, then engaged in interstate commerce, and, in accordance with such instructions and with the knowledge of the officials in charge of the train, took position upon a flat car loaded with material to be delivered at the place where plaintiff expected to perform his work; that, when this train had proceeded about four miles, defendant's employees in charge thereof negligently caused the car upon which plaintiff was riding to receive a sudden and extraordinary jerk which threw him from the car upon the track in such manner that both logs were run over and cut off by other cars in the train, and that plaintiff was being transported in interstate commerce at the time of the injury.

On the opening of the trial, at defendant's instance, the court required plaintiff to elect whether he would proceed upon the theory that the relation of master and servant concurrently engaged in interstate commerce existed between himself and defendant; or upon the theory that the relation of passenger and carrier existed between them; or upon the theory that he was a licensee or trespasser injured by wanton negligence while known to be in a position of peril. Plaintiff refused to elect, and thereupon the court dismissed the action. Plaintiff made a motion for a new trial; his motion was denied and he appealed.

Plaintiff contends that the court erred in requiring him to make such election before the evidence had been presented. Defendant insists that plaintiff must choose at the outset whether he will seek to recover under the "Federal Employer's Liability Act," or under the state law; and if under the latter, whether as an employee, a passenger, or a licensee.

The code provides that the complaint shall contain "a plain and concise statement of facts constituting a cause of action." G.S. 1913, § 7753. As required by this statute, the complaint sets forth the facts upon which plaintiff bases his claim. These facts constitute but one cause of action. That cause...

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