Oppenheimer v. Union Pacific Railroad Co.

FOURT, J.

This is an appeal by the plaintiff from a judgment in his favor, in an action for damages for assault and battery.

In his original complaint plaintiff alleged that defendant, by and through its agents, servants and employees, acting in the course and scope of their employment wilfully, unlawfully, forcibly and violently, beat, struck and assaulted plaintiff about his head and face with a deadly weapon. At the time of the incident plaintiff was an employee of defendant. However, there was no such allegation in the complaint. The trial of the action resulted in a judgment for defendant.

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Thereafter, plaintiff filed a notice of intention to move for a new trial. His motion was denied, but the court made an order setting aside the findings and judgment and reopened the cause for further proceedings. The court then granted plaintiff permission to file an amended complaint to conform to the proof and state a cause of action under the Federal Employers Liability Act.

Plaintiff then filed what was titled “Amendment to Complaint to Conform to Proof,” and in the body of the instrument set forth that it was a second, separate and distinct cause of action against defendant. In this document plaintiff alleged that defendant was a common carrier engaged in interstate commerce; that plaintiff was a yard clerk employed by defendant to cheek numbers on freight cars used in interstate commerce; that Grant Fraley and others employed by defendant were engaged in switching operations of defendant’s railroad cars; that defendant negligently failed to provide plaintiff with a safe place to work and to properly protect the health and safety of the plaintiff while on duty in that Fraley, while acting within the course and scope of his employment in interstate commerce, commenced an argument with plaintiff about the mode and method of performing railroad work of clerks and switchmen and thereupon wantonly and with disregard for the health of the plaintiff, struck plaintiff with a railroad lantern about the face and inflicted wounds to the plaintiff’s damage in the sum of $7,000; that defendant assumed all medical expenses except for an incidental travel allowance.

An answer to the amendment to the complaint was filed wherein defendant denied that plaintiff had been struck by any employee of the defendant in the course and scope of employment, and further, affirmatively set up that plaintiff was guilty of contributory negligence in arguing and getting into the fight in the first place.