Rios v. Caguas Tramway Co.

5 P.R. Fed. 596

Opinion

Rodey, Judge,

delivered the following opinion:

This case is before us on the issue raised by the demurrer of the defendant to the complaint. It is a suit under § 2 of the national employers’ liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1172), by a trackman of defendant’s railroad for an. injury be alleges be received by tbe negligence of tbe defendant. His complaint sets out that, in tbe course of tbe performance of bis duty, be was riding on a band car wbicb was in charge of one of defendant’s foremen, and that tbe latter negligently permitted tbe band car, while going down a steep grade, to attain such speed as to be beyond control, and that tbe car encountered an obstruction without any fault on tbe part of plaintiff, and threw him off and injured him severely.

Tbe demurrer is on tbe ground that it appears from tbe complaint that tbe obstruction on tbe track, wbicb it is not alleged that defendant placed there, is tbe proximate cause of tbe injury, and that therefore there is no liability on tbe part of defendant.

We understand that this national employers’ liability act as to tbe States has been held unconstitutional in the state of Connecticut, and has been sustained as constitutional in tbe state of Ohio. Tbe newspaper that gave us'this information did not name tbe courts wherein this was held, but no matter whether tbe law can be held to be in force in tbe several states of tbe Hnion or not, it is certainly in force in tbe territories and “other possessions of tbe United States,” as set out in § 2 thereof, because Congress is tbe supreme lawmaking power as to such localities.

Whilst we have not given this act of Congress the thought and consideration that it will no doubt soon receive at tbe bands of tbe courts throughout tbe nation, it is our offhand view, judging from tbe provisions it contains, that a complaint drawn under it with any degree of care will seldom if ever be demur-rable, and that nearly all cases will have to go to a jury on tbe facts.

We are satisfied that the complaint, as written in this case, is- not subject to demurrer, whatever may be the right of the defendant to demur to the evidence at the trial, should it prove to be insufficient. The demurrer will therefore be overruled, and an order to that effect will be entered.