Mercantile Trust Co. v. Pittsburgh & W. Ry. Co.

Citations

• 115 F. 475
• 53 C.C.A. 207
• 1902 U.S. App. LEXIS 4223

Syllabus

<p>1. Equity — Petition against Receiver for Tort — Pleading.</p> <p>Proceedings on a petition of intervention filed in a suit in ' equity against a receiver therein, asserting a claim for damages for the death of an employs, alleged to have resulted from negligence in the operation and management of a railroad by the receiver, are equitable in character, and the petitioner is entitled to have the receiver plead in conformity to the rules and practice in equity.</p> <p>8. Master and Servant — Duty to Warn Servant of Special Risks.</p> <p>The duty of informing a servant of special or extraordinary risks connected with his service is a primary duty of the master, when they are known to him and the delegation of such duty to any other servant, whether higher or lower in the scale of employment than the one exposed to the peril, cannot relieve him of the responsibility imposed on him by the law.</p> <p>■8. Same — Storm Causing Damage to Railroad Track — Failure to Warn Trainmen.</p> <p>A brakeman on the second section of a fast freight train on a railroad operated by a receiver was killed in a wreck at night, caused by a landslide. There had been heavy rains during the day along that portion of the road, and a storm in the evening, of unusual, if not unprecedented, violence, causing a number of landslides and washouts, which were known to the train dispatcher; and he notified the conductor and engineer of the first section of the train, on leaving the last station, to look out for slides at various places specified, but which did not include the place where the wreck subsequently occurred. Those In charge of the second section, which left 20 minutes later, received no notice or warning at all. 'Held, that the failure to give such notice of the general dangerous condition of the track was culpable negligence, which was a proximate cause of the accident, and rendered the receiver liable for the death.</p>