Kansas City Southern Railway Company v. Mrs Nora Jones

• Decision Date: 01 May 1916
• Docket Number: No. 492,492
• Citation: 36 S.Ct. 513,60 L.Ed. 943,241 U.S. 181
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, Plff. in Err., v. MRS. NORA M. JONES, Administratrix of the Succession of T. A. Jones, Deceased
• Court: U.S. Supreme Court

241 U.S. 181

36 S.Ct. 513

60 L.Ed. 943

KANSAS CITY SOUTHERN RAILWAY COMPANY, Plff. in Err.,

v MRS. NORA M. JONES, Administratrix of the Succession of T. A. Jones, Deceased.

No. 492.

Argued April 3 and 4, 1916.

Decided May 1, 1916.

Messrs. S. W. Moore, F. H. Moore, and J. D. Wilkinson for plaintiff in error.

Messrs. Leon R. Smith, Otis W. Bullock, and Newton C. Blanchard for defendant in error.

Mr. Justice McReynolds delivered the opinion of the court:

Claiming under the Federal employers' liability act (chap. 149, 35 Stat. at L. 65, chap. 143 36 Stat. at L. 291, Comp. Stat. 1913, § 8662), defendant in error brought this suit in a state court against the railroad company to recover damages resulting from her husband's death by accident while employed as engineer on a passenger train. A loaded car, having escaped from the switching crew, ran down a long grade, struck his engine with great violence as it was rounding a curve near the Shreveport yard, and killed him.

The company denied negligence on its part, but interposed no plea setting up the defense of contributory negligence. A jury found for the administratrix, and judgment thereon was affirmed by the supreme court of the state.

During cross-examination of the fireman, counsel attempted to show that the engineer was negligent in not having his train under proper control. The court sustained an objection 'to any evidence as to contributory negligence as same is not pleaded.' Proper exception was taken and duly noted. Thereupon, the record recites, 'counsel for plaintiff asks that this objection and ruling and bill of exceptions be made general to apply to all such evidence and it is so ordered.' Upon rehearing the supreme court held evidence of contributory negligence, though not pleaded, and inadmissible to defeat a recovery, should have been received in mitigation of damages if offered for that specific purpose. But it said the evidence in question was properly excluded because tendered without restriction.

We have been cited to no authority showing a settled local rule requiring counsel, without inquiry by the court, to announce in advance the purpose for which evidence is tendered. Earlier cases in Louisiana lend support to the contrary and commonly approved practice. Thompson v. Chauveau, 6 Mart. N. S. 458, 461; Hitchcock v. North, 5 Rob. (La.) 328, 329, 39 Am. Dec. 540; Fortunich v. New Orleans, 14 La. Ann. 115; Caspar v. Prosdame, 46 La. Ann. 36, 14 So. 317. See McAfee v. Crofford, 13 How. 447, 456, 14 L. ed. 217, 221; Buckstaff v. Russell & Co. 151 U. S. 626, 636, 38 L. ed. 292, 296, 14 Sup. Ct. Rep. 448; Farnsworth v. Nevada Co. 42 C. C. A. 509, 102 Fed. 578, 580; Hubbard v. Allyn, 200 Mass. 166, 171, 86 N. E. 356; Mighell v. Stone, 175 Ill. 261, 262, 51 N. E. 906.

It is declared by the act of Congress upon which the suit is based:——

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