293 F. 748 | 9th Cir. | 1923
(after stating the facts as above). Counsel for the plaintiff refers to the statutes hereinbefore cited, and contends that it was obligatory upon the carrier to use certain safety appliances and to observe certain specific directions concerning the kind and use of certain specific parts of locomotives, their tenders and appurtenances; that the observance of each specific rule is made a specific duty and that any violation resulting in injury to the employé becomes a specific actionable tort; that violation of each specific rule constitutes a new tort; and that, although the different specific torts may have resulted in the same damage, adjudication that one specific duty was not violated does not preclude recovery in a case where the violation of another specific duty has been alleged and proved.
Counsel cites the provisions of the. Act of February 17, 1911, supra, which provides, among other things, that the carrier must file rules and instructions for inspection with the chief inspector appointed by the President, and that rules and instructions, subject to such modifications as the Interstate Commerce Commission regulations, shall become obligatory upon the carrier; also section 9 of the act (Comp. St. § 8638), which provides that a carrier violating any rule or regulation made under the provisions of the act shall be liable to a penalty to be recovered in a suit brought by the United States, and argues that inasmuch as under the last act referred to the carrier is liable to the imposition of a penalty for each rule or regulation violated, a civil liability exists in favor of the injured person, and that the rule against splitting of actions is not applicable because the present action does not refer to a legal duty, the violation of which was the basis of the first action.
It is at once recognized that a disregard of the provisions of the Safety Appliance Act by the carrier is wrongful, and where damage results to one of -the class for whose especial benefit the statute was enacted, a right of action to reqover damages exists (St. Louis, I. M.
It is the personal injury that is the gist of the action, and although negligence alleged may have been caused by the omission to comply with one of several specific requirements which it was the duty of the carrier to do, nevertheless plaintiff had but one cause of action, and having selected one defect of several upon which he might have based his action, he cannot now bring another suit based upon another specific defect. In Stark v. Starr, 94 U. S. 477, 24 L. Ed. 276, the court said:
“It is undoubtedly a settled principle that a party seeking to enforce a claim legal or equitable, must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up His demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.”
We cannot find any solid ground upon which to except the present action from the principle stated. Jenkins v. Atlantic Coast Line R. Co. (C. C.) 179 Fed. 535; Clare v. New York & N. E. R. Co., 172 Mass. 211, 51 N. E. 1083.
The judgment is affirmed.
