Thompson v. Hocking Valley Ry. Co.
| Decision Date | 05 November 1930 |
| Docket Number | No. 5470.,5470. |
| Citation | 45 F.2d 155 |
| Parties | THOMPSON v. HOCKING VALLEY RY. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. C. Luckay, of Cleveland, Ohio (Bernsteen & Bernsteen, of Cleveland, Ohio, on the brief), for appellant.
J. P. Wood, of Cleveland, Ohio (Wilson & Rector, of Columbus, Ohio, and Tolles, Hogsett & Ginn, of Cleveland, Ohio, on the brief), for appellee.
Before DENISON and MOORMAN, Circuit Judges, and ANDERSON, District Judge.
This case was presented to the court below as being an action for negligence under the Federal Employers' Liability Act (45 USCA §§ 51-59). The court thought that plaintiff's proofs did not tend to show negligence, and so instructed a verdict for defendant. It is now apparent that the petition's claim for relief, "under the Federal Employers' Liability Act and the amendments thereto," and the stated facts in the petition, went far toward making a case under the Boiler Inspection Act (45 USCA § 22 et seq.); indeed, the defect charged pertained wholly to a locomotive boiler and its connections. True, the petition did not, in so many words, say that the locomotive was, at the critical time, in use on the line; but, if this was a defect in pleading, it should have been pointed out by demurrer, and correction would have been allowed. Whether the facts as stated and proved constituted the essential use on the line would have been a question for argument and decision.
Thinking, as we do, that it was not right to instruct a verdict, while ignoring the theory of liability under the Boiler Inspection Act, we conclude that continuing to ignore it is not required merely because plaintiff's counsel did not present this theory of liability to the trial court or to this court. For the reasons underlying the opinion of the court in Rice v. B. & O. R. R. (C. C. A.) 42 F.(2d) 387 filed June 28, 1930, and more fully elaborated by Judge Hickenlooper in his separate opinion (concurring on this point though dissenting as to waiver), we think we should give attention to this theory. It may or may not be applicable to the facts of this case, but, if it is, and if this appliance was really unsafe, plaintiff's right to recover is so clear that the "shortcomings of counsel" ought not to be given fatal effect.
Here, as in the Rice Case, it is pointed out to us that this particular District Court did not have rightful venue in an action under the Boiler Inspection Act, because neither plaintiff nor defendant railroad...
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