La Belle Box Co. v. Stricklin

• Decision Date: 08 December 1914
• Docket Number: 2507.
• Parties: LA BELLE BOX CO. v. STRICKLIN.
• Court: U.S. Court of Appeals — Sixth Circuit

218 F. 529

LA BELLE BOX CO. v. STRICKLIN.

No. 2507.

United States Court of Appeals, Sixth Circuit.

December 8, 1914

J. T Hoffman, of Pittsburgh, Pa., for plaintiff in error.

G. D Kinder, of Martin's Ferry, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

This was a suit to recover damages suffered by Stricklin while he was employed in the lumber yard of the box company, at Martin's Ferry, Ohio. There was a long platform between the railroad track and the lumber piled in the yard. Stricklin was pushing an empty truck along this platform and was about to meet a loaded truck drawn by a horse and driven by another employe. Stricklin turned out close to the edge of the platform, next to the railroad, and stopped. The loaded truck did not turn out far enough, the hub of its wheel struck the hub of Stricklin's truck, and, either as the result of the blow so given or of the swing of the load of lumber as the driver pulled away, Stricklin was knocked off the platform, fell onto the railroad track, and was badly hurt by a railroad car just then approaching. He recovered a verdict of $4,750, and the company assigns error, raising a question on the pleadings and claiming that there was no evidence of negligence. Under the Ohio statute in force (the Norris Act, Secs. 6242, 6245-- 1, Page & A. General Code) plaintiff's contributory negligence would not be a bar if it was slight as compared with defendant's negligence (McMyler Co. v. Mehnke (C.C.A. 6) 209 F. 5, 7, 126 C.C.A. 147); and the fellow-servant rule would not apply if, as the jury found, the negligent driver was a foreman in charge of the work.

The question upon the pleadings was this: The petition charged that the horse was driven 'wantonly, heedlessly, carelessly, and negligently,' and that defendant was negligent in that the driver 'carelessly, wantonly, and recklessly failed and neglected' to give plaintiff notice of the danger. The answer denied any lack of due care in driving the cart, and denied that the company drove the truck 'heedlessly, wantonly, recklessly, carelessly, or negligently, or in any other manner without any warning to the plaintiff,' and alleged affirmatively that, with full knowledge that the truck was coming and with sufficient room and opportunity to place himself out of danger, the plaintiff 'without any necessity therefor, and of his own volition, so placed himself in relation to said cart and such horse as to needlessly expose himself to whatever dangers were incident to the operation of said car on said platform. ' On the trial, defendant claimed and the court held that the evidence did not show wanton or willful negligence as distinguished from ordinary negligence; but further held that the petition might be treated as one charging merely ordinary negligence, since it stated no facts sufficient to show willfulness or wantonness. The company then desired to amend its answer so as to allege contributory negligence, and urged that, since the defendant had supposed the action was for willful negligence which it knew could not be proved, it had not affirmatively pleaded contributory negligence, as was required under the Ohio practice in an action for ordinary negligence. This application to amend was denied, and the jury was instructed that the action was one for ordinary negligence, and that Stricklin's contributory negligence, if it was slight as compared with defendant's negligence, would not bar recovery, but should be given effect in reducing damages.

In this, there was no error. Not only was the court plainly right in treating the petition as one for ordinary negligence-- at least inclusively if not exclusively-- but the answer did, in substance and effect, allege contributory negligence, although it did not use those words. The charge gave defendant the benefit of that defense, all known witnesses testified fully, and there is nothing to suggest that defendant could have produced any further evidence if it had pleaded the affirmative defense of contributory negligence.

The basis for the claim that there was no evidence to show negligence justifying a recovery seems to be that plaintiff's act in standing so near the edge of the platform that he would be knocked off if the foreman drove against him was the sole proximate cause of the injury. This theory cannot survive its statement. Plaintiff did not assume the risk of such injury, since it was not customary or even occasional to knock the men off the platform in this manner, and the employe does not assume the risk of negligence which he did not have reason to anticipate. Sterling Paper Co. v. Hamel (C.C.A. 6) 207 F. 300, 304, 125 C.C.A. 44. If Stricklin's conduct bore any causal relation to the injury, it was indistinguishable from negligence contributing thereto (see McMyler v. Mehnke, supra, and cases cited) and, so characterized, it was covered by the Ohio statute and by the court's charge in pursuance thereto.

It would be clear that the judgment must be affirmed, save for one thing. The case was commenced in the state court and was removed by defendant on the ground of diversity of citizenship. No question of jurisdiction was ever suggested to the court below or to this court, but we are bound not to overlook any jurisdictional defect that the record may disclose. See cases cited in our opinion this day filed in R.R. v. Stephens, 218 F. 535, 134 C.C.A. 263. The original petition alleged that the defendant 'is and was at the time of the grievances hereinafter complained of, a corporation of the state of Michigan, and owns and operates, and then owned and operated, a box factory in the city of Martin's Ferry, Ohio. ' It says nothing about either the residence or citizenship of plaintiff, unless by alleging that 'the plaintiff at said time was employed by the defendant as a common laborer in and about its factory,' and that he was working at the box factory temporarily; his regular trade being that of a puddler. The defendant's petition for removal does not in terms say that the controversy is between citizens of different states, but alleges that the jurisdictional amount is involved; that the defendant was, when the suit was commenced, and still is, a corporation, duly organized under the laws of Michigan, and was not and is not a citizen of Ohio; and 'that the plaintiff is a citizen of the state of Ohio and resides at Bridgeport, Belmont county, Ohio. ' The injury was suffered October 6, 1911, the suit was commenced December 20, 1911, and the removal petition filed January 19, 1912. On the last-named day, the state court entertained the petition, fixed and approved the bond, and ordered that the cause be certified from that court to the United States District Court. Notice of filing the petition and bond had been theretofore given to the plaintiff as required by the Code. After the removal, it came about that plaintiff filed, in the court below, the second amended petition upon which the trial was had. This was not a mere amendment, but was a pleading complete in itself. It contained nothing bearing on plaintiff's residence or citizenship, in addition to what was found in the original petition. The defendant answered to the merits. The bill of exceptions does not contain all of the evidence. It only certifies that 'there was no other or further evidence offered on behalf of either party as to how...