Wabash R. Co. v. Kithcart

• Decision Date: 21 November 1906
• Docket Number: 2,357.
• Citation: 149 F. 108
• Parties: WABASH R. CO. v. KITHCART.
• Court: U.S. Court of Appeals — Eighth Circuit

149 F. 108

WABASH R. CO. v. KITHCART.

No. 2,357.

United States Court of Appeals, Eighth Circuit.

November 21, 1906

James P. Hewitt (Geo. S. Grover and Carr, Hewitt, Parker & Wright on the brief), for plaintiff in error.

Halloran & Starkey and Thomas A. Cheshire, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

Kithcart recovered a judgment against the railroad company for personal injuries sustained in the state of Iowa while in its service and in the performance of his duties as a brakeman. The averments of negligence in his petition are contained in the following paragraphs:

'That in complying with the said orders of his said superior officer, he was compelled, by reason of a defective coupling rod, to step between the cars in order to uncouple the same, and while between the said cars, in the act of uncoupling the same, his foot was caught and held fast in an open or unblocked frog or guard rail in and on the track of the defendant company.

'That said accident and injury was occasioned the plaintiff because of the negligent and careless construction by the defendant company of its track, in failing to properly block the said frog or guard rail of the switch, located at the point and place of the happening of said accident.

'That said accident occurred solely by reason of the carelessness and negligence of the defendant company, as stated above, in failing to properly construct and maintain its said track at said point of said accident, and the plaintiff was wholly free from contributing in any degree whatever to the same by reason of any negligent or careless acts upon his part.'

At the conclusion of the evidence the court denied a request of the railroad company for a directed verdict in its favor, and also refused to give an instruction that there could be no recovery because of a defective coupling rod as a ground of negligence. On the contrary, the court instructed the jury that there were two charges of negligence in the petition upon either of which a recovery because had if the evidence warranted it-- first, a defective coupling appliance, and, second, a failure to block the frog. In this the court erred. The petition does not charge the defective condition of the coupling appliance as a substantive ground of negligence. The first of the paragraphs quoted from the petition is not an assertion of negligence on the part of the company. It merely sets forth a reason why the plaintiff went between the moving cars, and its purpose was to relieve him from the charge of contributory negligence. Morris v. Railway, 47 C.C.A. 661, 108 F. 747. This is manifest, because there is nothing more in the averment than a bare statement that a coupling rod was defective. It is not averred that the company was in any wise negligent in respect thereof, and for aught that appears the company may have been most diligent in the performance of its duties of inspection and maintenance. The purpose of the pleader not to rely upon the defect except as mere inducement to plaintiff's action in going between the cars is further shown by his failure to aver either that the cars were employed in interstate commerce, so that the act of Congress in respect of safety appliances would apply, or that they were employed in commerce within the state, so that a statute of Iowa upon the same subject could be invoked. Moreover, the evidence received during the trial went no further than to show the bare fact that the safety appliances were defective. The other paragraphs of the petition afford further proof, if any is needed, that the plaintiff rested his case solely upon a charge of negligence in respect of the condition of the track. In the second of those quoted he directly charges that the accident and the...