Kakos v. Byram Et Al‪.‬

Personal Injuries ? Master and Servant ? Federal Employers Liability Act ? Defense of Negligence of Fellow-servant Rule Abrogated ? Complaint ? Sufficiency ? Pleading and Proof ? Variance ? When Immaterial ? When Fatal ? Non-suit ? When Improper. Personal Injuries ? Master and Servant ? Actionable Negligence ? Complaint ? When Sufficient. 1. Actionable negligence arises only from a breach of legal duty, and to state a cause of action for damages resulting from negligence the complaint must disclose the duty, the breach and the resulting damages; it must set forth sufficient facts, not conclusions, from which it can be said, as a matter of law, that the defendant owed to plaintiff a duty arising from some legal relation existing at the time of the injury. Same ? Pleading and Proof. 2. The plaintiff in a personal injury action must stand or fall upon the cause of action stated in his complaint; he must confine his proofs within the cause of action stated and may not go beyond his material allegations. Same ? Variance ? What Amounts to Failure of Proof. 3. Where there is such a divergence between the issues tendered by plaintiff and the evidence that it cannot be said that plaintiff has proved in substance the cause of action alleged, there is a variance which amounts to a failure of proof. Same ? Variance ? When Fatal ? When Immaterial. 4. It is only where the divergence between the allegations of the complaint and the proof are substantial, i.e., such as actually mislead the adverse party to his prejudice in maintaining his action or defense, that a material variance can be said to exist; if the divergence is of detail rather than of substance, and the proof sustains the general scope and meaning of the complaint, the variance is immaterial. Same ? Railroads ? Pleading and Proof ? Variance Held Immaterial ? Non-suit Improper. 5. In an action brought under the federal Employers Liability Act against a railway company by a section-hand, for personal injuries alleged in the complaint to have been sustained while unloading ties from a gondola car, through the negligence of a fellow-servant - Page 310 in dislodging a tie from the top of a pile which struck plaintiff, causing the injury, his proof on the contrary showing that the tie was pried loose by the fellow-servant from another tie to which it was frozen, the two standing against the side of the car, held, that the variance was immaterial and that the court in holding it fatal and granting a non-suit committed error, particularly so in the absence of any suggestion that defendant was surprised or misled in maintaining its defense by having to meet issues not pleaded. Same ? "Negligence" ? Definition. 6. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. Same ? Railroads ? Federal Employers Liability Act ? Common-law Fellow-servant Rule Abrogated ? Non-suit Improper. 7. The federal Employers Liability Act abrogates the common-law fellow-servant rule and places the negligence of a co-employee on the same basis as the negligence of the employer; therefore where but for the act of his co-employee in dislodging the tie which fell upon plaintiff under the circumstances referred to in paragraph 5, above, the accident would not have happened, the question whether the fellow-servant was negligent in what he did should have been submitted to the jury, and judgment of non-suit was error. Same ? Railroads ? Interstate Commerce ? Negligence of Fellow-servant ? Assumption of Risk ? Rule Inapplicable. 8. A railway employee, while engaged in interstate commerce, does not agree, as between himself and his employer, to assume the risk of the negligence of his fellow-servant.