Illinois Cent. Ry. Co. v. Nelson

• Decision Date: 07 March 1914
• Docket Number: 3967.
• Citation: 212 F. 69
• Parties: ILLINOIS CENT. R. CO. v. NELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

212 F. 69

ILLINOIS CENT. R. CO. v. NELSON.

No. 3967.

United States Court of Appeals, Eighth Circuit.

March 7, 1914

Syllabus by the Court.

Where in an action against a common carrier for a negligent injury the same party, if any one, is entitled to recover on the alleged cause of action, and the rules of law governing the trial of the issues in the case are the same under the federal employers' liability act and under the state laws, and no question of jurisdiction is involved, it is immaterial whether the action, trial, and judgment are conducted under the federal laws or under the state laws.

The fact that a court gives a wrong reason for a right ruling does not render it erroneous.

The party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this right is reversible error. If the cross-examiner would inquire of the witness concerning matters not opened on the direct examination, he must call him on his own behalf.

In an action for a personal injury, the plaintiff may recover for the bodily suffering and mental pain which are inseparable from, and so necessarily and inevitably result from the injury, in this case for the mental pain which the plaintiff sustained while, immediately after a wreck, he was pinned to the ground so near a fire that he was in danger of being burned before he could be released by the sawing of a beam.

It is not indispensable to a recovery under the law of Iowa (section 1307, Code 1873) for an injury caused by the operation of a railroad by the defendant that the plaintiff should prove that at the time he was injured he was engaged in the discharge of some duty in connection with the use or operation of the railroad.

The refusal to give a requested instruction in the words of counsel is not error, where the court embodies the substance of the instruction in its general charge.

Where counsel do not consider errors assigned of sufficient importance to point out in their brief the pages in the bill of exceptions in the printed transcript of the record where the rulings of the court challenged with the objections and exceptions to them may be found, the court will not ordinarily deem them of sufficient materiality to search through the record to find and discuss them.

F. H. Helsell, of Ft. Dodge, Iowa (Helsell & Helsell, of Ft. Dodge, Iowa, and Blewett Lee and W. S. Horton, both of Chicago, Ill., on the brief), for plaintiff in error.

M. J. Wade, of Iowa City, Iowa, and Arthur G. Bush, of Davenport, Iowa (Wade, Dutcher & Davis, of Iowa City, Iowa, Ely & Bush, of Davenport, Iowa, and Loren Risk, of Waterloo, Iowa, on the brief), for defendant in error.

Before SANBORN and SMITH, Circuit Judges, and POPE, District Judge.

SANBORN Circuit Judge.

The plaintiff below, Lu Verne D. Nelson, was a fireman employed by the Illinois Central Railroad Company in firing the engine on the first section of its train No. 71 going west on the night of January 6, 1912. When that engine arrived at the station of Wise, it went out of commission, the way car or caboose of that section was attached to the rear of the second section of No. 71, and when this composite train went out of Jesup, the next station west, Nelson was riding in that caboose. About four miles west of Jesup, while that train was proceeding on its way, the third section of No. 71 ran into the rear of it and seriously injured the plaintiff. He sued the company for negligence and recovered a judgment of $6,000. The railroad company specifies many alleged errors in the trial, but those upon which its counsel seem to rely most confidently challenge the rulings of the court relative to the question whether the recovery should have been had under the federal employers' liability act or under the law of the state of Iowa. These rulings relate to motions to amend the pleadings, to the striking out of evidence tending to prove that the plaintiff and defendant were both engaged in interstate commerce when the plaintiff was injured, to the admission and exclusion of evidence, and to instructions to the jury given and refused.

In his original complaint Nelson stated a cause of action under both the federal law and the state law. The defendant answered that it admitted that the plaintiff was injured at the place stated in his complaint, but that it denied that the plaintiff or the defendant was engaged in interstate commerce at the time of the accident and injury. It alleged that the plaintiff assumed the risk of the accident and that he was guilty of negligence which contributed to his injury. After the jury was impaneled and before any evidence was introduced, counsel for the defendant admitted in open court that the defendant was liable for the injury of the plaintiff, unless the latter assumed the risk of his injury or was guilty of contributory negligence. Thereupon counsel for the plaintiff immediately made a motion to amend his complaint by striking out the averment that the plaintiff and the defendant were engaged in interstate commerce at the time of the accident so that the complaint would state a cause of action under the law of Iowa alone. Although the defendant had denied in its answer that either of the parties was engaged in interstate commerce at the time of the accident, its counsel objected to this amendment. Counsel for the plaintiff then offered to admit that both parties were engaged in interstate commerce if counsel for the defendant would say that he wished to allege that fact. His offer, however, was not accepted, and the court granted his motion to amend. The paragraph of defendant's answer in which it had denied that either of the parties was engaged in interstate commerce at the time of the accident read in this way:

'It admits that at the time stated it was a corporation engaged at certain places in interstate commerce, but it specifically denies that at the time and place where the defendant claims he was injured that either the plaintiff or defendant at the time of the accident and in connection therewith, was engaged in interstate commerce.'

As soon as the plaintiff's amendment which stated his cause of action under the state law was allowed, defendant's counsel moved to amend this paragraph of the answer by substituting for the words, 'but it specifically denies' therein the words, 'and it admits and avers,' and by substituting the word 'and' for the word 'or' between the words 'plaintiff' and 'defendant.' The court granted this motion. In the course of the trial evidence was introduced which tended to prove that each of the parties was engaged in interstate commerce at the time of the accident. At the close of the trial no substantial evidence had been introduced in support of the defense of assumption of risk, or in support of the defense of contributory negligence. The plaintiff then moved the court to strike out the evidence that the parties were engaged in interstate commerce at the time of the accident on the ground that the answer did not set up that defense, counsel for the defendant moved to amend the answer so as to plead that defense, but his motion was denied, and the motion of the plaintiff to strike out the evidence was granted.

No error is perceived in these rulings. The defendant was offered its choice of the defense of a cause of action for an admitted liability under the federal law or under the state law. When the plaintiff alleged that his cause of action arose under the federal law, the defendant denied that it arose under that law. When the plaintiff alleged by an amendment that his cause of action arose under the state law, counsel for the defendant now insists that he intended to amend his answer so as to plead that it arose under the federal law. The court held that his amended pleading was insufficient to present that issue, and that ruling was clearly right, for it was indispensable to a plea of that fact that the defendant should aver that the plaintiff and his employer were each engaged in interstate commerce at the time of the accident, and the defendant did not allege that the plaintiff was so engaged. There was no error in the granting of the motion to strike out the evidence to the effect that the parties were engaged in interstate commerce because there was no pleading to warrant its admission and it was no abuse of discretion for the court to refuse the defendant permission, at the close of the trial, to inject that issue into the case when the record conclusively proved that the only purpose of the attempt to introduce it was to postpone the plaintiff's recovery of damages caused by the admitted negligence of the defendant.

Not only this, but if there...