Kansas & A.V. Ry. Co. v. Morton
| Decision Date | 07 May 1894 |
| Docket Number | 372. |
| Citation | 61 F. 814 |
| Parties | KANSAS & A.V. RY. CO. v. MORTON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George E. Dodge and B. S. Johnson filed brief for plaintiff in error.
William M. Cravens filed brief for defendant in error.
Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
The plaintiff in error was sued by the defendant in error, in the United States court in the Indian Territory, in an action for personal injuries. The defendant in error charged in his complaint that he was employed as a cook by a party of bridge builders, who were in turn employed by the defendant railway company, and were engaged in building bridges for the company, which employment required them to move from point to point on the defendant's railroad in a train provided with two caboose cars for the use of said gang of bridge builders; that the plaintiff, by virtue of his employment as cook, had the right to pass over the defendant's railroad, and to use the two cabooses aforesaid for the purpose of cooking for the men who employed him, and also for the purpose of sleeping therein at night; that as the two cabooses in question were standing on the side track at Vian Station, in the Indian Territory, on the night of September 22, 1892, and while the plaintiff was sleeping in one of said cabooses which was used for the purpose, a switch leading from the main track to the side track was left open through the carelessness of the defendant's employes, and that by reason thereof the caboose was run into by a passing freight train belonging to the defendant company, which was also carelessly operated by those in charge thereof, and that in consequence of the collision the plaintiff sustained serious injuries, for which he claimed damages in the sum of $5,000.
To this complaint the railway company filed an answer, in which it denied that the plaintiff was an employe of said gang of bridge builders. On the contrary, it averred that the plaintiff was employed by the railway company itself. It admitted that the caboose in which the plaintiff was sleeping was run into by one of its trains, but it denied that the defendant had been guilty of any negligence for which it was responsible to the plaintiff, because the injuries sustained by the plaintiff were 'caused wholly through and by reason of the negligence of his fellow servants in the management of its train, and in the leaving open of the switch, as charged by the plaintiff. ' The answer further denied that the plaintiff had sustained serious injuries, as charged in his complaint....
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