Sandeen v. Tschider

• Citation: 205 F. 252
• Decision Date: 15 April 1913
• Docket Number: 3,827.
• Parties: SANDEEN v. TSCHIDER.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

205 F. 252

SANDEEN v. TSCHIDER.

No. 3,827.

United States Court of Appeals, Eighth Circuit.

April 15, 1913

Harold Harris, of St. Paul, Minn., for plaintiff in error.

Arthur L. Knauf, of Jamestown, N.D. (John Knauf, of Jamestown, N.D on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and VAN VALKENBURGH, District judge.

SMITH Circuit Judge.

This suit was brought by J. E. Tschider, as guardian ad litem of William Tschider, against Charles Sandeen. It appears that the Northern Pacific was engaged in constructing a second track south of, but a considerable distance away from, its old track in the vicinity of Jamestown, N.D., and Mr. Sandeen had a contract for grading between Jamestown and Bloom, which included both cuts and fills. One of the cuts here in question was in hardpan, and in doing this work the men were compelled to do some blasting in connection with it, and used dynamite and black powder. The dynamite was exploded by the use of caps about the size of a lead pencil in diameter and about three-fourths of an inch to one inch in length and of about 300 pounds capacity. A large number of persons of all ages, including children, were out on the new grade viewing the work without objection upon the part of Mr. Sandeen except when they jumped on the cars or otherwise interfered with the work. Blasting was concluded about the 27th or 28th of September, and the balance of the work about October 4th or 5th.

The jury were warranted in finding that Mr. Peterson, Mr Sandeen's foreman, left a tin can containing these caps on a bank near some railroad ties. October 23, 1910, William Tschider, a boy 11 years and 3 months old, wandered out along the grade, on which no track was yet laid, and found about one-half of these caps, and took them with him. He soon began the attempt to remove the inside of one of them with a safety pin, when it exploded, tearing away his thumb and parts of two fingers. This suit was brought to recover his damages. Trial was had to a jury, and upon its verdict a judgment was rendered for plaintiff, and Mr. Sandeen sued out this writ of error.

It is first contended that this suit should have been brought in the name of William Tschider, by J. E. Tschider, his guardian ad litem, instead of in the name of J. E. Tschider as guardian of William Tschider. This is probably, in the absence of statute, correct. Bradley v. Amidon, 10 Paige (N.Y.) 235; Fox v. Minor, 32 Cal. 112, 91 Am.Dec. 566; Emeric v. Alvarado, 64 Cal. 593, 2 P. 418. But the question remains, How was this point raised below? It could well have been raised by demurrer; but it was not. If it had been thus raised, the defect would doubtless have been at once corrected. An amendment could properly have been permitted, adding as plaintiff the minor by his guardian. In M., K. & T. Ry. Co. v. Sallie C. Wulf, 226 U.S. 570, 33 Sup.Ct. 135, 57 L.Ed. . . ., it was held, where a mother brought suit in her individual capacity to recover damages by reason of her son's death while in the service of the railway company under the Employer's Liability Act, she could by amendment make herself plaintiff as administratrix of her son's estate.

But so far from raising this question Mr. Sandeen expressly stipulated:

'That J. E. Tschider is the duly appointed, qualified, and acting guardian ad litem of William Tschider, the plaintiff in this case, a minor.'

Thus he expressly entered of record his admission that the plaintiff in the case was the minor, and not the guardian.

At the close of plaintiff's evidence Mr. Sandeen, by his attorney, made the following motion:

'Defendant moves to dismiss the complaint, on the ground that no

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