229 Pa. 97 | Pa. | 1910
Opinion by
This was an action of trespass at common law, brought July 1, 1904, by the plaintiff, a brakeman in the employ of the defendant company, to recover damages for injuries received in its service while he was in the act of coupling cars. The statement was filed with the praecipe, and averred, inter alia, as follows: “It then and there was the duty of defendant corporation to adopt and use couplings for its cars of ordinary character' and' reasonable safety, according to the usages, habits and ordinary risks of the business, but the defendant corporation, not regarding its duty in the premises, at or about February 29, 1904, at Juniata county aforesaid, carelessly and negligently adopted and used the pin and fink coupler, a kind of coupler not then in ordinary use but more dangerous than the usual and ordinary coupling employed by railroads, by reason whereof plaintiff, while engaged in coupling cars, so as aforesaid supplied and fitted with
In December, 1908, a rule was granted on the defendant to show cause why the statement should not be amended, and on January 21, 1909, the rule was made absolute and the statement was amended so as to read, inter alia, as follows: “That said defendant corporation at the time of committing the grievances hereinafter mentioned was engaged in interstate commerce by railroad and a common carrier and did haul on its line cars used in moving interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars, none of its cars being so equipped with couplers as aforesaid, in violation of the acts of congress of March 2, 1893, c. 196, sec. 2, 27 Statutes at Large, 531, and its supplements; that the train aforesaid was not composed of four wheel cars or eight wheel standard logging cars where the height of such cars from top of same to center of coupling does not exceed twenty-five inches used exclusively for the transportation of logs.”
The defendant objected to the allowance of the amendment on the ground that it introduced a new and different cause of action which was barred by the statute of limitations. The first assignment alleges error in making the rule absolute and permitting the plaintiff to amend the statement of claim. As we are of opinion that this assignment must be sustained, the other assignments become immaterial and need not be considered or determined.
The amendment to the statement of claim, allowed by the court, brought the case within the act of congress of
The original statement, as observed, was at common law and alleges that the plaintiff’s injuries resulted from the defendant company having carelessly and negligently adopted and used the pin and link coupler, more dangerous than the usual and ordinary coupling employed by railroads. Prior to the act of congress, employees of common carriers assumed the risks and dangers naturally and ordinarily incident to their employment which included the risks and hazards arising from the performance of their duty in coupling cars. If the employee was injured in the discharge of that duty, and it was a risk which he assumed, the carrier was not responsible. But the act changes the liability of the carrier when engaged in interstate commerce, and what was lawful at common law before the passage of the act is made unlawful by the act. The statute abrogates the common law pro tanto and imposes a liability on the carrier different from that imposed by the common law. The latter gives the employee a right of action for an injury resulting from a negligent act exposing him to a danger which he 'did not assume in entering the carrier’s service; but the
In support of the contention that the amendment did not change the cause of action, the learned counsel for the plaintiff claims that the language of the original statement was not changed in any way by the amendment which, it is alleged, consisted simply of an addition to the original statement and directed attention to. the act of congress and its supplement as being applicable to the facts of the case. But, it will be observed, in the amendment there was a departure not only from the facts as laid in the original statement, but also from the law as applicable to the facts in the original statement. In other words, there was a departure, not only from fact to fact, but from law to law. A departure in pleading may be either in the substance of the action or defense, or the law on which it is founded: 2 Saunders
Our conclusion is supported by numerous decisions in this and other jurisdictions in which the same doctrine has been announced and applied. Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, was a common-law action of
In Bolton v. Ry. Co., 83 Ga. 659, an action by an employee against the defendant company, it was said, in refusing an amendment to the statement (p. 660): “If, however, he commences his action and relies upon his
Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, was an .action by an employee against a railroad company based upon the common law of master and servant, and was brought to recover damages for an injury which had happened to the plaintiff in Kansas while on duty there. It was held that an amended petition which changes the nature of the claim and bases it upon a statute of Kansas giving the employee in such a case a right of action against the company in derogation of the common law is a de
We are all of opinion that the amendment allowed by the court below introduced a new cause of action, barred
The judgment is reversed with a venire facias de novo.