Kelly v. Malott
Court of Appeals for the Seventh Circuit
In Error to the Circuit Court of the United States for the Southern District of Illinois. The declaration, in two counts, alleged that Kelly, a messenger of the Adams Express Company, while in the discharge of his duties in an express car in one of defendant’s trains, was killed in a collision that occurred through the “gross negligence” of the defendant.
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In Error to the Circuit Court of the United States for the Southern District of Illinois. The declaration, in two counts, alleged that Kelly, a messenger of the Adams Express Company, while in the discharge of his duties in an express car in one of defendant’s trains, was killed in a collision that occurred through the “gross negligence” of the defendant. The first count charged that defendant’s “gross negligence” grew out of the train crews’ handling of the trains that collided; the second, out of the acts and omissions of the train dispatchers. A plea was filed in which two contracts were…
1Opinion of the CourtBaker, Circuit Judge
(after stating the facts).
The declaration counts on “gross negligence.” Though the plea shows that the contract between the express company and the defendant contained an exemption from the consequences of “gross negligence,” the plea can be taken only as relying on a forgiveness of “negligence,” because Kelly did not authorize the express company to make a broader contract on his behalf.
If the declaration be construed to charge the defendant only with “negligence,” the plea presents an absolute bar. Baltimore, etc., R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; Northern…
2Cases cited13 opinions
- Railroad Co. v. LockwoodSupreme Court of the United States · 1873
- Baltimore & Ohio Southwestern Railway Co. v. VoigtSupreme Court of the United States · 1900
- Milwaukee & St. Paul Railway Co. v. ArmsSupreme Court of the United States · 1876
- Northern Pacific R. Co. v. AdamsSupreme Court of the United States · 1904
- Northern Pacific Railway Company v. AdamsSupreme Court of the United States · 1904
8 more not listed; retrieve them via the Exa API.
3Cited by16 opinions
- Danculovich v. BrownWyoming Supreme Court · 1979
- Donnelly v. Southern Pacific Co.California Supreme Court · 1941
- Rocky Mountain Produce Trucking Co. v. JohnsonNevada Supreme Court · 1962
- Sorrell v. WhiteSupreme Court of Vermont · 1931
- Siders v. GibbsCourt of Appeals of North Carolina · 1978
11 more not listed; retrieve them via the Exa API.