Myron E. McPherson v. Amalgamated Sugar Company, a Corporation

This appeal involves an action in tort, appellant alleging that the loss of his arm was proximately caused by appellee’s negligence and that appellant thereby suffered damages of $338,000.

Prior to answering, appellee under Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Appended to this motion were various exhibits and an affidavit by ap-pellee’s attorney. From these exhibits and the affidavit it appears that appellant in 1957 had filed suit against Union Pacific Railroad Company for the amount of $375,000, claiming that the latter was responsible under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for the same injury complained of here. The Railroad defended on grounds, among others, that the injury was caused by the negligence of the Amalgamated Sugar Company, appellee in the present action, and that such negligence could mot be attributed to the Railroad. In instructing the jury, however, 'the trial judge noted that the Railroad was responsible under the Federal Employers’ Liability Act if it knew of or acquiesced in the activities of…