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Biedler v. Philadelphia, Baltimore & Washington Railroad

31 Del. 452 Court Superior Court for New Castle County, Decision date 1921-05-31 Docket Sums. Case, No. 154 English

Delivered by Rice, J.

Contents

Majority

p. 452
Annie L. Biedler, Administratrix of George M. Biedler, deceased, vs. The Philadelphia, Baltimore and Washington Railroad Company, a corporation of the State of Delaware.

Headnote

Pleading — Special Plea of Assumption of Risk and Contributory Neg- " licence Should be Stricken out, facts Being Provable Under General Issue.
In an action for the death of a railroad employee, a motion to strike out a special plea of assumption of risk and contributory negligence should be allowed, since such facts may be shown under the general issue.
(May 31, 1921)
Rice and Heisel, J. J,, sitting.
Reuben Staterthwaite, Jr., for plaintiff.
Herbert H. Ward, Jr. (of Ward, Gray and Neary), for defendant.
Superior Court for New Castle County,
May Term, 1921.
Sums. Case, No. 154,
March Term, 1921.
p. 453
Action by Annie L. Bielder, administratrix of George M. Biedler, deceased, against the Philadelphia, Baltimore & Washington Railroad Company. Plaintiff’s motion to strike out plea allowed.
To plaintiff’s narr, based on 8 Fed. Stat. Ann. (2d Ed.) 1208, 1352 (U. S. Comp. St. § 8660), defendant filed the following pleas:
1. Not guilty.
2. Release.
3. Statute of limitations.
4. And for a further plea in this behalf the said defendant, by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said plaintiff ought not to have or maintain her aforesaid action thereof against it, because it says that the said George M. Biedler, deceased, who is the plaintiff’s intestate, assumed the risk of the employment in which he was engaged, there being no violation by the defendant common carrier of any statute enacted for the safety of employees that in any way contributed to the injury or death of the said George M. Biedler, deceased, and this it, the said defendant, is ready to verify. Wherefore it prays judgment if the paid plaintiff ought to have or maintain her aforesaid action thereof against it, etc.
Plaintiff entered replications and issues to the first three pleas and moved to strike out the fourth plea, for the reason that the general issue is pleaded and that said plea amounts to the general issue.

We are clearly of the opinion that it has been the long established practice of this court to permit assumption of risk and contributory negligence to be shown under the general issue, and that the motion to strike out the fourth special plea should be allowed, as it amounts to the general issue.