Grundman v. Davis

179 Wis. 35 | Wis. | 1922

Vinje, C. J.

The first two objections raised are predicated upon the contention that the pleader uses the words “The Northwestern Railway Company” instead of “The Director General of Railroads,” and therefore no cause of action is alleged against the latter. Technically construed the contention is not without force, but the intention and meaning of the pleader is clear, and he has alleged the facts which show that the Director General and not the Chicago & Northwestern Railway Company is liable for the alleged negligence. He has alleged the fact that at the time of the accident the Director General was in possession and full control of all the lines of railroad theretofore operated by the Chicago & Northwestern Railway Company. The court could take judicial notice of such fact. Therefore, when the pleader alleged that the plaintiff was in the employ of the Chicago & Northwestern Railway Company, that it was engaged in interstate commerce, and that it operated a roundhouse, he pleaded wrong conclusions of law.’ The fact once being established both by specific allegations in the complaint and by judicial knowledge that the Director General of Railroads was in control of the whole operating department of the Chicago & Northwestern Railway Company at the time the accident occurred, it becomes apparent that the pleader not only showed but in fact did allege a cause of action against the Director General, though he erroneously pleaded conclusions that the Chicago & Northwestern Railway employed the plaintiff and operated its locomotive and roundhouse. No one could have been misled by such erroneous conclusions contained in the complaint, and least of all the defendant. The intention of the pleader was evident and the mistakes made misled no one. It is hardly necessary in this case even to invoke the rule that the complaint should be liberally construed in favor of the pleader.

' As to the third ground of the demurrer, all that need be said is that this is a case where plaintiff seeks to recover for injuries sustained in repairing a defective boiler. In such a case we do not understand that it is essential that any violation of the Boiler Inspection Act or of the orders of the interstate commerce commission should be alleged. Boilers may come into the roundhouse in all conceivable conditions and need repair, and an employer, may be guilty of negligence 'towards an employee engaged in the repair of such boiler without violating the orders or act above referred to. On the contrary, boilers, engines, and other appliances of a railroad that are out of repair may come into roundhouses or shops in all sorts of damaged conditions without being equipped with the necessary safety appliances which the Boiler Inspection Act and the Safety Appliance Act as well as the orders of the interstate commerce commission may require, and no negligence may attach to the defendant for their failing to -be so equipped. Neither the Boiler Inspection Act, the Safety Appliance Act, nor the orders of the interstate commerce commission absolutely limit the liability of a common carrier to a violation of them alone. Certainly as to repair men negligence may be predicated upon other conditions, and if it is shown to constitute negligence may entitle the plaintiff to recover.

We think it was a question for the jury to say whether the alleged negligence, facts, and conditions charged in the complaint constitute negligence. We cannot say as a matter of law that they do not.

By the Court. — Order affirmed.