Tuder v. Or. Short Line R. Co.

Decision Date10 December 1915
Docket NumberNo. 19463[118].,19463[118].
Citation155 N.W. 200,131 Minn. 317
PartiesTUDER v. OREGON SHORT LINE R. CO.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Ramsey County; Frederick N. Dickson, Judge.

Action by Henry Tuder, a minor, by Mary Tuder, his mother, against the Oregon Short Line Railroad Company. From denial of new trial, plaintiff appeals. Reversed, and new trial granted.

Syllabus by the Court

Under the Code, a plaintiff may allege all the facts which give rise to his cause of action, and may recover if he prove sufficient of such facts to entitle him to relief.

In an action for damages resulting from negligence, he may allege all the grounds giving rise to his cause of action, and is not required to elect, at the beginning of the trial, whether he will establish, by his proofs, one or another of such grounds. Walter D. Corrigan, of Milwaukee, Wis., and Barton & Kay, of St. Paul, for appellant.

Edward P. Sanborn, of St. Paul, for respondent.

TAYLOR, C.

The complaint contains allegations to the effect that defendant operates a line of railroad from Butte in the state of Montana to and beyond Ogden in the state of Utah, and is engaged in transporting freight and passengers in interstate commerce thereover; that at said city of Butte in the state of Montana defendant employed plaintiff and other men to go from said city to a place beyond the city of Ogden in the state of Utah and there work upon the railway tracks used by defendant in its interstate commerce; that plaintiff together with the other men so employed entered a train at Butte for the purpose of being transported by defendant over its railway to the place where they were to perform their work, and were in charge of a foreman of defendant; that the train arrived at Ogden and the foreman stated that it would stop 30 minutes for lunch; that the plaintiff left the train, procured a lunch, and returned in 15 minutes to re-enter the train but found it had gone; that pursuant to instructions from defendant's representatives at Ogden, plaintiff boarded a freight train, then engaged in interstate commerce, and, in accordance with such instructions and with the knowledge of the officials in charge of the train, took position upon a flat car loaded with material to be delivered at the place where plaintiff expected to perform his work; that when this train had proceeded about four miles, defendant's employés in charge thereof negligently caused the car upon which plaintiff was riding to receive a sudden and extraordinary jerk which threw him from the car upon the track in such manner that both legs were run over and cut off by other cars in the train; and that plaintiff was being transported in interstate commerce at the time of the injury.

On the opening of the trial, at defendant's instance, the court required plaintiff to elect whether he would proceed upon the theory that the relation of master and servant concurrently engaged in interstate commerce existed between himself and defendant; or upon the theory that the relation of passenger and carrier existed between them; or upon the theory that he was a licensee or trespasser injured by wanton negligence while known to be in a position of peril. Plaintiff refused to elect, and thereupon the court dismissed the action. Plaintiff made a motion for a new trial; his motion was denied, and he appealed.

Plaintiff contends that the court erred in requiring him to make such election before the evidence had been presented. Defendant insists that plaintiff must choose at the outset whether he will seek to recover under the ‘Federal Employers' Liability Act,’ or under the state law; and if under the latter, whether as an employé, a passenger, or a licensee.

[1][2] The Code provides that the complaint shall contain, ‘a plain and concise statement of facts constituting a cause of action.’ Section 7753, G. S. 1913. As required by this statute, the complaint sets forth the facts upon which plaintiff bases his claim. These facts constitute but one cause of action. That cause of action is the alleged...

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20 cases
  • Chase Securities Corporation v. Donaldson
    • United States
    • U.S. Supreme Court
    • 21 Mayo 1945
    ... ... Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 123, 67 L.Ed. 294; Seaboard Air Line Ry v. Koennecke, 239 U.S. 352, 354, 36 S.Ct. 126, 127, 60 L.Ed. 324. This appears to be permitted y the law of Minnesota. Tuder v. Oregon Short Line R. Co., 131 Minn. 317, 318, 319, 155 N.W. 200. It is true that the Supreme ... ...
  • Schimmelpfennig v. Gaedke
    • United States
    • Minnesota Supreme Court
    • 9 Mayo 1947
    ... ... Smith v. Smith, 204 Minn. 255, 283 N.W. 239; Tuder v. Oregon Short Line R. Co., 131 Minn. 317, 155 N.W. 200 ...         Of course, where ... ...
  • Canellos v. Zotalis
    • United States
    • Minnesota Supreme Court
    • 1 Abril 1920
    ... ... 135]of that purpose. As was said in Tuder v. Oregon, etc., Co., 131 Minn. 317, 155 N. W. 200, the complaint contains no inherently ... ...
  • Canellos v. Zotalis
    • United States
    • Minnesota Supreme Court
    • 1 Abril 1920
    ... ... [177 N.W. 135] ... of that purpose. As was said in Tuder v. Oregon S.L.R ... Co. 131 Minn. 317, 155 N.W. 200, "the complaint ... contains no inherently ... ...
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