Brinkmeier v. The Missouri Pacific Railway Company

• Decision Date: 06 November 1909
• Docket Number: 16,090
• Citation: 105 P. 221,81 Kan. 101
• Parties: HENRY BRINKMEIER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellee
• Court: Kansas Supreme Court

105 P. 221

81 Kan. 101

HENRY BRINKMEIER, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellee

No. 16,090

Supreme Court of Kansas

November 6, 1909

Decided July, 1909.

Appeal from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STIPULATION AS TO FACTS -- Issues Made by Pleadings Not Enlarged -- Omissions in Pleadings Not Waived. A written stipulation as to the existence of certain facts, entered into by the parties to an action for the express purpose of avoiding the necessity of taking depositions, the agreement being that the statements contained may be read in lieu thereof, subject to objections as to competency and relevancy, does not enlarge the issues made by the pleadings or operate as a waiver of any omission therein.

2. RAILROADS -- Federal Safety-appliance Act -- Absolute Duty to Keep Equipment in Repair. The several sections of the act of congress of 1893 (ch. 196; 27 U.S. Stat. at L p. 531) making it unlawful for railroad companies engaged in interstate commerce to use cars not equipped with certain specified appliances are framed upon the same general plan, and notwithstanding any minor differences in their language a declaration by the supreme court of the United States that one of them is intended to impose upon the carrier the absolute duty of keeping in good repair the equipment therein required, irrespective of any question of negligence, determines that a like interpretation is to be given to the others. The first paragraph of the syllabus in Railway Co. v. Brinkmeier, 77 Kan. 14, overruled.

C. V. Ferguson, Kos Harris, and V. Harris, for the appellant.

J. H. Richards, and C. E. Benton, for the appellee; Smyth & Helm, of counsel.

Philip J. Doherty, for the Interstate Commerce Commission, as amicus curiae.

OPINION

MASON, J.:

On November 12, 1900, in or near the city of Hutchinson, Kan., Henry Brinkmeier, a brakeman in the employ of the Missouri Pacific Railway Company, was injured while engaged in coupling cars. He sued the company, alleging that his injury was occasioned by various defects in the defendant's equipment, and recovered a judgment, which was reversed by this court on two grounds; namely, that an instruction had been given relating to the federal safety-appliance act which was not in accordance with the interpretation which this court placed thereon, and that the petition did not allege a violation of that statute as it existed when the accident occurred. (Railway Co. v. Brinkmeier, 77 Kan. 14.) Upon a new trial, on July 8, 1908, the plaintiff asked leave to amend his petition by adding averments which this court had held to be necessary in order to bring the case under the federal law. The request was denied, and a demurrer to his evidence was sustained. He brings this proceeding to review these rulings.

The defect in the petition, regarded as an attempt to state a cause of action under the act of congress, was its failure to allege that the car having the defective coupling apparatus which caused the plaintiff's injury was "used in moving interstate traffic." The provision in force at the time of the injury read:

"It shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." (Act of March 2, 1893, ch. 196, § 2; 27 U.S. Stat. at L. p. 531.)

The amendment of 1903 provided that "the provisions and requirements . . . relating to . . . automatic couplers . . . shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith." (Act of March 2, 1903, ch. 976, § 1; 32 U.S. Stat. at L. p. 943.)

The petition contained no allusion whatever to interstate commerce except in a statement that the defendant was a corporation doing business as a railway company "as a common carrier into and through the counties of Sedgwick and Reno, in the state of Kansas, and into the states of Colorado, Nebraska, Missouri, Arkansas, Texas, Oklahoma and Indian Territory." This was a sufficient allegation that the company was engaged in interstate commerce, and warrants the inference that the car in question was used on a railroad over which interstate commerce was conducted. Therefore the facts pleaded would have constituted a good cause of action under the letter of the law as it now stands. But prior to the amendment of 1903 the statute did not apply to any car excepting those "used in moving interstate traffic." There was nothing in the petition to suggest even remotely that the car the defective equipment of which caused the plaintiff's injury was so used. Therefore, as decided at the former hearing, the petition stated no cause of action under the federal statute. It is urged, however, that the court should have allowed an amendment. The statute of limitation had barred an action based upon the act of congress before leave to amend was asked. It was then too late for such an amendment, under repeated decisions of this court, of which the earliest is A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, where it was said:

"A plaintiff can not deprive a defendant of the benefit of the statute of limitations by ingrafting upon a case commenced in time another cause of action barred by the statute. . . . The statute of limitations, as applied to such new cause of action, treats the action as commenced when the amendment was incorporated into the pleadings, and not as begun when the action itself was commenced." (Syllabus.)

In 1905 a stipulation was signed and filed in the case stating facts showing that the car at the time of the injury was being used in interstate commerce, and this is relied upon as supplying the omission of the petition. The stipulation expressly recited that it was made to avoid the necessity of taking depositions, adding that it might be read in lieu thereof, but that its statements should be subject to objections as to competency and relevancy. An agreement so made could not enlarge the issues made by the pleadings. Its purpose, as clearly indicated by its recitals, was merely to obviate the inconvenience and expense of taking depositions. It had no function except as a substitute for the testimony of witnesses, and even if made before the statute of limitation had run could not have operated as a waiver of any defect in the petition.

The considerations already stated are determinative of the case and require an affirmance of the judgment,...