Anderson

In this action plaintiff administratrix seeks damages under the provisions of section 51 of the Federal Employers’ Liability Act (45 U.S.C.A.) for the wrongful death of her intestate, L. C. Bristow. When the matter came on for trial, defendant objected to the introduction of any evidence, on the ground that the complaint fails to state a cause of action. The objection was sustained, judgment was entered in defendant’s favor, and plaintiff appeals. The issue presented is forthrightly defined and the pertinent authorities are helpfully collected in the excellent briefs of counsel for the respective parties. After careful consideration of the briefs and arguments, and after independent research which has disclosed nothing persuasive to a contrary result, we have concluded, for the reasons hereinafter elucidated, that under applicable legal principles the judgment must be affirmed.

A motion to exclude evidence by reason of failure of the complaint to state a cause of action is in the nature of a general demurrer and may be sustained only if the allegations of the complaint, deemed true for this purpose, are totally insufficient to support a judgment in plaintiff’s favor. (See Rannard…

I dissent.

The legal issue here is whether an employer owes a duty to his employee to render aid when he has been injured in the course of his employment or, under appropriate circumstances, to take preliminary steps to ascertain whether or not his employee is in need of assistance, and if so, to render such aid as may be reasonable under the circumstances. Stated another way, the question is whether the employer is guilty of negligence when he fails to exercise ordinary care to ascertain if his employee has suffered an injury in the course of his employment, and if so, to render aid to him. The “appropriate circumstances” in the instant case consist of the chief member of a train crew (a conductor) being missing from the train to the knowledge of the train crew while it is traveling through and over isolated country, and the duties of the conductor require him to be active both on and off the train; the train passed several stations and no report of his absence was made. The majority opinion declares that no duty whatsoever is owed by the employer, at least until he has actual knowledge that his employee has suffered an injury. It would apparently find no such duty where a…