Mondou v. New York, N. H. H.R. Co. , 82 Conn. 373 ( 1909 )

The complaint alleges that the plaintiff, while employed by the defendant as a fireman on a railroad train running from Midway, Connecticut, to the Harlem River, in New York, was injured while in the exercise of due care, by the negligence of the defendant and its servants and agents in receiving a foreign car, which was defective and in a dangerous condition, without inspecting it, and putting it into another train running in the opposite direction from the Harlem River to Midway, in consequence of which, as the trains met in Guilford in this State on August 5th, 1908, the top of the car titled over and struck the plaintiff. It concludes thus: "The plaintiff claims $25,000 damages, under and by force of the act of Congress entitled `An Act relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases.' Approved April 22d 1908." The suit was brought in October, 1908. A demurrer was filed attacking both the complaint and the claim for relief.

Both parties have treated the action as one brought upon the Act of Congress of April 22d 1908, and we shall therefore accept that view, as did the Superior Court.

Thus considered, the demurrer was properly sustained, for reasons fully stated in the case of Hoxie v. New York,N. H. H.R. Co., ante, p. 352, 73 A. 754.

We think it proper, however, to observe, in order to avoid any misconstruing of our position in subsequent cases, that the complaint charges the defendant directly with negligence in respect to the duty of inspecting the foreign car. It owed an absolute duty to the plaintiff to use reasonable care in inspecting the condition of all the rolling stock used upon its railroad. The demurrer admitted that it failed to exercise such care and that the plaintiff exercised due care, and as the suit was brought within four months from the date of the injury to the plaintiff, he would have made out a prima facie case, had he not chosen to claim his remedy under the Act of Congress, instead of under the laws of Connecticut.

There is no error.

In this opinion the other judges concurred.