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Potter v. Los Angeles & Salt Lake Railroad Co.

December 31, 1919

ROBERT J. POTTER, RESPONDENT, V. LOS ANGELES AND SALT LAKE RAILROAD COMPANY ( A CORPORATION), APPELLANT.


Appeal from Tenth Judicial District Court, Clark County; J. Emmett Walsh, Judge.

F. R. McNamee and Leo O. McNamee, for Appellant.

Edmon G. Bennett and Chas. E. Barrett, for Respondent.

By the Court, Coleman, C. J.:

Potter brought suit to recover damages for personal injury, and, judgment having been rendered against the railroad company, it has appealed.

1. A motion to dismiss the appeal has been interposed by respondent, upon the ground that, while the appeal is from the judgment, the error assigned and ruled upon is directed solely to an order made by the court sustaining a motion to strike certain affirmative matter pleaded in the answer. The motion must be denied. Section 5340 of the Revised Laws expressly provides that, upon an appeal from a judgment, the court may review intermediate orders.

[42 Nev. 370, Page 374]

The complaint contains two counts, both of which allege the corporate capacity of the company; that it was on June 12, 1917, a common carrier by railroad, engaged in interstate commerce, in that it was transporting passengers and freight in and between the States of Nevada, California, and Utah; that said company, in the conduct of its business, kept and maintained shops, yards, and a division point at Las Vegas, Nevada; that on the day mentioned plaintiff was in the employ of the company as a brakeman, engaged in the switching of cars which were being used in interstate commerce in the yards of said company at the division point; that at the time of the alleged injury defendant was operating the cars at an excessive rate of speed; and that while thus engaged in switching cars plaintiff was injured through the negligence of the company in not having equipped and maintained in good working order automatic couplers upon the cars so being used in interstate commerce, which were being switched in said yards.

The first count pleaded the Nevada workmen's compensation act (Stats. 1913, c. 111), and that defendant had rejected the same. The second count was substantially the same as the first, but, instead of pleading the aforesaid act, pleaded the federal safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531; U. S. Comp. St. 8605-8612), and the federal employers' liability act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65; U. S. Comp. St. 8657-8665).

The defendant company filed an answer in which it denied the acts of negligence alleged in both counts of the complaint, and also set up an affirmative defense of contributory negligence on the part of the plaintiff in bar to the action, and pleaded that plaintiff had assumed the risk.

At the time of the trial plaintiff withdrew his first cause of action.

The error assigned on this appeal pertains to an order sustaining a motion made by counsel for plaintiff to strike from the answer the affirmative defenses of contributory negligence and assumed risk. The motion to

[42 Nev. 370, Page 375]

strike these defenses was based upon the ground that, when a cause of action pleaded in a complaint is founded upon a violation of the federal statutes, contributory negligence and assumed risk are not defenses and have no proper place in the answer, and counsel for respondent ...


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