sa
I'EDEBAL REPOBTlIlB.
vol. :6.1.
,:KANSAS & A. V. RY. 00. v. MORTON.
(Olrcuit Oourt of Appeals, Eighth Olrcuit.
1, 1894.)
No. 372NEGLIGENCE-AmussION INPtimADING.
The answerot' a railway, companyc, In an action agaInst it for personal injuries allpged· to have been receivllil by plaintiff while employed by bridge builders In the employ of the company, averred that he was employed by the company, and that his injuries were caused ;wholly by negligence of his fellow servants in such employment. Held, that this admission of CUlpable negligen<;e 'of its preclUded the company from maiJlctaining on the trial that the injUry. WRS due to inevitable accident. and '\Yl!B' not occasione4 by its negligence.
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THAYER, District The pla'Ilti:ff in error was sued by the defendant in error, in United States court in the Indian Territory, ina:naction for personal injuries. The defendant in error charged in his complaintthat he was employed as a cook by a party of bridge ,builders, who in turn. employed by the defendant railway and were' engaged ip. 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 aliJ cook, had the right to pass over the defendant's railr9ad, and to use t,he two cabooses aforesaid for the purpose of cooking;for the men who employed and alS(} 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 plaip.tiff was sleeping in one of said cabooses which was used for that pprpose, a f!1witch leading from the main traclF to the sidetrack left ppen tl1rongh the carelessness of the defendant's employes, an4;l t;hat by rf,aspnithereof was r,un into by a passing freight train belpuging to the defendant company, which was also carelessly operated by those in'.charge thereof, and that in consequence oftl1e cpIlisiQn,tJ!e plaintiff sustained serious injuries, for which he damages in the Qf $5,000. . To this cQIPplll,jnt the railway company filed an answer, in ,Which it denIed that the plaintiff was an empl(}ylt Qfsaid gaJ;lgof bridge builders. On the contrary, it averred tliat the plaintiff was em-
KANSAS'
815
ployed 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. As the pleadings stood when the case went to trial, the issues of fact arising thereunder were-First, whether the plaintiff was an employe of the railway company or an employe of the gang of bridge builders; and, secondly, whether he had sustained injuries by reason of the collision, and the extent of said injuries. On a trial of these issues the jury returned a verdict in favor of the plaintiff, upon which verdict a judgment was afterwards entered. To reverse the judgment, the railway company has sued out the present writ of error. A number of exceptions were taken to instructions given by the trial court, all of which exceptions have been embraced in the assignment of errors. But in this court only two propositions have been argued by the plaintiff in eITor, and they are as follows: In the first place it is said that the railway company was only bound to exercise ordinary care to avoid injuring the plaintiff, and it is daimed that the trial court so charged the jury as to exact of the company a higher degree' of care and diligence. In the second place it is said that the burden wason the plaintiff to prove his case, and that he utterly failed to show that the defendant was negligent in the discharge of any duty which it owed to the plaintiff. It may be conceded, as stated in the first of these propositions, that ordinary care was the full measure of the duty which the defendant company owed to the plaintiff under the disclosed by the testimony; but a careful examination of the charge satisfies us, beyond any reasonable doubt, that this was the view taken by the trial court, and clearly enforced in all of its instructions. Our attention has not been directed to a single paragraph of the charge where a higher degree of care was required of the defendant company. But a more conclusive answer to both of the foregoing propositions is this: The defendant's answer, as we have above shown, admitted that the collision was occasioned by the culpable negligence of persons who were in its employ. By its answer it rested its defense to the action upon the ground that the plaintiff was not in the service of the bridge builders, but in its service, and was therefore a fellow servant of the persons through whose fault, in leaving the switch open, the collision had been occasioned. This, and the further plel:{ that the plaintiff had not sustained any serious injury, were the sole issues to be tried, as we feel constrained to construe the· pleadings. On the trial of the case, an attempt appears to have been madeunconsciously, perhaps-to shift the ground of defense by showing that the collision was due to' inevitable accident, and that it was not occasioned by negligence. We find· nothing in the testimony,
r
&16
FEDEBALBEPOBTER.
vol. 61·.
. however,which fairly tends to support such a defense. The switch was certainly left open and unguarded through the carelessness of some one in the employ of the railway company; but even if there had been some testimoDywhichtended to support the last-mentioned defense, yet sue.h. .defense was not pleaded, and it would still be necessary to hold the· defendant. bound by the admission contained in its answer. The testimony shows very conclusively, and so the jury have found under proper instructions, that the plaintiff was really in the service of the bridge builders, and was not, a fellowservallt of those persons through whose carelessness the .;;witch was leftQpen. This fact is practically conceded by counsel for the plaintiff in error. It follo'Wsthat no prejudicial error was committed by the trial court, and its judgment is therefore. affirmed. ,,=======::a BtJ:RElJEISER v.
MUT1:!AlJ ACCrn; ASS'N OF THE NORTHWEST. May 1, 1894.)
(OircuitOourt of Appeals, Seventh Oircuit.
No. 12L MUTUAl' BENEFIT INSURANCE__J!'ORFEITURE.
Aml1tual benefit association insured Its members "agal:nst personal boddy .injuries effected during the' continuance of membership in this iIisurllI1¢e throughextemal' violent and accidental means," and against death resulting fromsuqh, injuries witllinOOdays /l.fter the accident. Held that, a member q.ied within 90 days after an. accident that caused his death, the fa<:t th/1,t before his death he ceased to be a member, because of default in payiIig' an assessment falling dUe after the accident, did not relieve the association from liability, since its liability became fixed at the time of the accident.
In Error to the Circuit Court of the United States for the Northern District of lllinois. , Assumpsit by Mary Burkheiser against the Mutual Accident Association of 'the Northwest upon an insurance policy on the life of plaintiff's husband. Defendant obtained judgment. Plaintiff brings error. Reversed. George Burkheiser, the husband of the plaintiff, was insured by the. defendant under its' certain polley or certificate of insurance dated October 4, 1890, "against personal bodily injuries effected during the continuance of membership in this jnsurance through external, violent and accidentaln'leans." By the policy provision is made for indemnity against accidental injury in two ways-First,fpr losS of time and for certain. specified permanent injuries; secthe result of accident,within 90 days thereafter. The first ond, for was payable to the insured, the second to the plaintiff. On the 20th day of December, ·1890, Mr. Burkheis'er met with an accident, within the terms of the policy, and died on the 23d day of January, 1891, solely from the effects of the injury. On tlle 15lli day of DeCember, 1890, the company duly levied an indemnity assessment upon its members, payable on the 15th day of January, 1891. notice of which: was given to Burkheiser. on the 15th day of December, 1890. The defendllnt pleaded this assessment and the failure of Burkheiser to pay the same, and claimed that, by reason': thereof, and by force of the 01l the .association, he ceased to be a metI\ber from and after the 15th day of January, 1891, whereby the policy of Insw'ance certificate of membership' was wholly discharged and annuiled. The' sectlon of the by-law referred· to is as follows: "Any member who shall fail or neglect t() remit to t)1e flssoctationthe amount of any assessment madeupbn hiin
