Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
The questions presented by the appeal at bar are entirely those of pleading.
The appellant filed an original statement of claim and several amendments. By a motion filed April 28, 1938, he moved the court for leave to withdraw all amendments theretofore filed by him and to substitute paragraphs contained in his motion in lieu of certain allegations set forth in the original statement of claim.Consideration of this residuum of pleading shows that the appellant has alleged the following.
That at the time of the happening of the events complained of, the appellant was the owner of a machine shop and locomotive shed at West Salisbury, Pennsylvania; that upon March 27, 1927, he entered into an agreement in the form of a letter with Castleman Valley Railroad Company a predecessor corporation to the appellee, Castleman River Railroad Company. The pertinent portions of this letter, addressed to the appellant by Castleman Valley Railroad Company, are as follows:
"Have our crew service the locomotive as much as possible, namely, drop the fire, clear the ash pan, fire box, wash out boiler, clean flues, arch, smoke box and tender, also do all the hostlering necessary to care for the locomotive to prevent fire and freezing, and we will assume the responsibility of fire that might occur from not keeping a hostler or watchman on said locomotives, while dead or otherwise, when in your shops.
"Our men will also drain and refill lubricators, pack oil sellars, furnish wood and fuel for lighting off he said engine. Our men will do this work gladly and will always fire up, and in this way you will only need to furnish us the mechanical help, necessary equipment and material to inspect, repair and Form in accordance with the I.C.C. rules. * * * "
The pleadings also allege that the contract between the appellant and the appellee in so far as it was reduced to writing is embodied in the letter just set forth.
The pleadings allege also that the appellee employed the appellant to inspect the locomotive in his shed and with the assistance of the appellee's train crew to repair it when necessary and to certify it fit for use in accordance with the regulations of the Interstate Commerce Commission.
Paragraph III of the motion to amend the statement of claim contains the following specific allegation: "Said employment of plaintiff by defendant did not include service in the routine operation and handling of said locomotive which defendant's trainmen were competent to perform. * * * All work done by plaintiff for defendant was requested by defendant to be done under the supervision of defendant's officer in charge or superintendent."
Paragraph IV of the motion to amend the statement of claim alleges that: "In the repairing and certifying of said locomotive it was the duty of defendant, its agents and employees, to bring said locomotive to plaintiff's shed aforesaid clearing it of all fire at a point at least 250 feet from the said shed * * * and the locomotive was then to be run into said shed by defendants on its own steam."
The pleadings further allege that on August 21, 1936, during business hours, at a time when the appellant's lomocotive shed was free of fire or any cause of fire and in a safe and normal condition, the appellee, by its employees, a train crew, brought the locomotive to the appellant's shed, removed the fire at a distance of about two hundred fifty feet from the shed and ran the locomotive into the shed and over a pit for the purpose, to quote the language of paragraph V of the motion to amend the statement of claim, " * * * of having the boiler of said locomotive washed out by the defendant's employees with plaintiff's steam at a later time, and for the further purpose of having said locomotive inspected and certified as fit for use, or repaired if necessary, * * * in ...