Mondou v. N.Y., N. H. & H. R. Co.

• Decision Date: 20 July 1909
• Citation: 82 Conn. 373,73 A. 762
• Court: Connecticut Supreme Court
• Parties: MONDOU v. NEW YORK, N. H. & H. R. CO.

73 A. 762

82 Conn. 373

MONDOU

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

July 20, 1909.

Appeal from Superior Court, New London County; Ralph Wheeler, Judge.

Action by Edgar G. Mondou against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Action by an employé of the defendant under the act of Congress relating to the liability of common carriers by railroad to their employés, approved April 22, 1908 (chapter 149, 35 Stat. 65), to recover damages for personal injuries alleged to have been caused by the negligence of the plaintiff's fellow servant. A demurrer to the complaint upon the ground of the unconstitutionality of the act of Congress was sustained, and judgment rendered for the defendant. No error.

Donald G. Perkins and Thomas J. Kelly, for appellant.

Edward D. Robbins and Michael Kenealy, for appellee.

E. O. Harrison and Philip Doherty, for the United States.

BALDWIN, C. J. The complaint alleges that the plaintiff while employed by the defendant as a fireman on a railroad train running from Midway, Conn., to the Harlem river, in New York, was injured while in the exercise of due care by the negligence of the defendant and its servants and agents in receiving a foreign car, which was defective and in a dangerous condition, without inspecting it, and putting it into another train running in the opposite direction from the Harlem river to Midway, in consequence of which, as the trains met in Guilford in this state on August 5, 1908, the top of the car tilted over and struck the plaintiff. It con-eludes thus: "The plaintiff claims $25,000 damages under and by force of the act of Congress entitled 'An act relating to the liability of common carriers by railroad to their employés in certain cases,' approved April 22, 1908 (chapter 149, 35 Stat. 65)." The suit was brought in October, 1908. A demurrer was filed attacking both the complaint and the claim for relief. Both parties have treated the action as one brought upon the act of Congress of April 22, 1908, and we shall therefore accept that view, as did the superior court.

Thus considered, the demurrer was properly sustained for reasons fully stated in the case of Hoxie v. New York, N. H. & H. R. Co. (Conn.) 73 Atl. 754. We think it proper, however, to observe, in order to avoid any misconception of our position in subsequent cases, that the complaint...