166 Wis. 594 | Wis. | 1918
Lead Opinion
Tbe defendant asks tbis court most earnestly that we re-examine tbe grounds of tbe decision on the former appeal of tbis ease, and insists that the rule of law therein applied to tbe case is contrary to tbe established law of the federal and state adjudications on tbe subject. It is-contended that tbe decision on tbe former appeal, holding that tbe amendment of tbe plaintiff’s complaint there involved did not constitute a departure from tbe cause of action alleged in tbe original complaint, should be modified,' and that this court should now bold that tbe amendment of tbe complaint introduced a different cause of action from tbe one originally stated, and that tbe two-year limitation of the-federal statute effectively barred the cause of action alleged in the amended complaint. Upon consideration of tbe questions presented we are satisfied that tbe former decision of tbis court must stand as declaring tbe law applicable to the case and that tbe trial court properly applied the law to tbe litigated issues.
It is contended that tbe sum awarded by tbe jury in diminution of plaintiff’s damages on account of bis failure to exercise ordinary care is wholly inadequate. We have examined the record and the claims of tbe appellant on tbis point.
By the Court. — The judgment is affirmed.
Concurrence Opinion
(concurring). I wish to state my own position in this matter. I agreed entirely with the decision rendered by this court upon the first appeal in this case, 162 Wis. 421, 156 N. W. 484. I thought then, and think now, that it was logically right and founded on solid principle, to wit, the principle of the liberal construction of pleadings to accomplish the ends of justice. There was but one accident. Its details were set forth in the first complaint as well as the grounds of negligence on which liability was claimed. True, it was not alleged that the defendant was an interstate railroad or that the train was an interstate train, but I cannot convince myself that this fact should have the effect claimed by the appellant. As matter of fact the train was an- interstate train and the plaintiff was engaged in interstate commerce at the time, hence he had but one cause of action, namely, the cause of action under the federal statute. He had no cause of action at common law or under any state statute because the action given by the federal act superseded all other remedies. When, therefore, an action was commenced by the service of summons and complaint, the complaint setting forth the details of the very accident in question and the negligence claimed, it should, in my judgment, be held to be an action to enforce the only cause of action which the plaintiff really had, namely, the federal cause of action, and if the complaint proved to be defective in some part amendment should not be held to change the cause of action, but rather to supply a missing allegation. Courts should be keen to save a cause of action from the effect of mistakes of the pleader rather than to cut it off.
The case of Seaboard A. L. R. Co. v. Renn, 241 U. S. 290,
There are other considerations, however, which make it unnecessary to consider the question now. This court from very early times has held the doctrine that a proposition once decided by this court in a case becomes res adjudicata and the law of the case in its subsequent stages both in the lower courts and in this court. Ellis v. N. P. R. Co. 80 Wis. 459, 50 N. W. 397; Noonan v. Orton, 27 Wis. 300; Keystone L. Co. v. Kolman, 103 Wis. 300, 79 N. W. 224. I am content to follow that doctrine now. I see no good reason for making an exception because the case is one which may ultimately go to the federal supreme court.
