Pohlman v. Chicago, R. I. & P. R.

ADAMS, Circuit Judge. This was an action to recover-damages for personal injuries inflicted upon plaintiff by defendant railway company-in the state of Kansas. It was charged in the petition that plaintiff’s injuries were occasioned by the negligencé’ of one of his fellow servants in charge of' the engine on and about which both were at work, and, for the purpose of availing himself of the provisions of the statute of Kansas (Daws Kan.-1905, c. 341, p. 566) creating a liability for the negligence of his fellow servant, plaintiff alleged that prior to the commencement of his action he served on the defendant a notice in writing statjng the time and place of his injury. The defendant by its general denial put this allegation in issue. The record fails to disclose that any such notice was given. At the end of plaintiff’s case and again at the close of all the evidence, defendant requested the trial court to instruct a verdict in its favor for the reason, as alleged, that the proof failed to disclose a cause of action. The court instructed accordingly, and plaintiff brings the case here by writ of error. We held in the recent case of Simerson v. St. Louis & S. F. R. Co., 97 C. C. A. 618, 173 Fed. 612, that the giving of the particular notice required by the Kansas law, is a condition precedent to the incurrence of any liability against a railroad company for injuries resulting from the negligence of fellow servants. We there said: .... “By the plain language of the statute the giving of the notice is as necessary an element of the creation of liability as the negligence of the fellow servant itself is. The proof of the one is therefore as indispensable to constitute a cause of action as the proof of the other.” [493] As the bill of exceptions discloses that no such proof was made in this case the judgment must, on the authority of the Simerson Case, be affirmed.