Kestner v. Reading Co.

21 F.R.D. 303, 1957 U.S. Dist. LEXIS 4503

Opinion

KIRKPATRICK, Chief Judge.

The plaintiff, a railroad employee, brought suit against his employer, the Reading Company, under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The cause of action stated was that “by reason of the negligence of the defendant the area in and about the tracks had been dug out unbeknown to the plaintiff”, as a result of which the plaintiff, in the performance of his duties, stepped into a hole and was injured.

The Reading Company brought in Chester Municipal Authority as a third party defendant, alleging merely that the plaintiff’s injuries, if any, were caused by the negligence of the third party defendant. The third party defendant has now served interrogatories upon the plaintiff, to which the plaintiff objects on the ground that the third party defendant is not an “adverse party” within the meaning of Rule 33, Fed.Rules Civ. Proc. 28 U.S.C.

The objection must be sustained. In every case which has been brought to my attention in which the point has been presented (see Cooke v. Kilgore Mfg. Co., D.C., 15 F.R.D. 465, and cases there cited), it has been held that the rule refers not to parties whose interest in the result of the litigation may be adverse but to parties who are on opposite sides of an issue raised by the pleadings or otherwise presented by the record. It would seem that a broader construction of the rule would present many difficulties and complications which are avoided by the simple expedient of having the matter governed by the record.