39 Ind. App. 343 | Ind. Ct. App. | 1905
Elizabeth Fleming, the appellant, brought her action in March, 1900, against the appellee, to recover damages for a personal injury caused by appellant’s falling into an open ditch across a sidewalk along which she was walking on the night of October 14, 1898. Such proceedings having been had that plaintiff recovered judgment, the defendant appealed to the Supreme Court. The judgment in favor of the plaintiff was reversed. See City of Anderson v. Fleming (1903), 160 Ind. 597, 66 L. R. A. 119. The opinion of the Supreme Court on that appeal, on the return of the cause to the court below, was spread of record, and is included in the transcript before us. On the return of the cause to the trial court an amended complaint was filed, October 6, 1903. To this amended complaint the appellee answered in a number of paragraphs,' in one of which was pleaded the statute of limitations. If it can properly be said that in the amended complaint the appellant stated a cause of action different from that stated in the original complaint, the judgment herein must be sustained.
In the amended complaint there was no mention of Henry or any contractor or third person; but it was alleged that the appellee negligently and carelessly dug and made the' excavation across the sidewalk. It was alleged that the appellant was traveling on foot along the sidewalk, and, being unable to see or observe the excavation by reason of the darkness of the night, and by reason of the carelessness and negligence “of the defendant” in failing to guard or protect the same, or place any lights, signal, or warning of any kind in the locality thereof, or causing the same to be done, she fell into the excavation, etc. In
In the amended complaint it was charged that the city itself negligently dug and made the excavation, and negligently caused, allowed, and permitted the excavation which it had negligently made to remain through the darkness of the night without any guard, signal, or warning, etc.; that the appellant was traveling on foot along the sidewalk, being unable to see the excavation by reason of the darkness and by reason of the negligence of the appellant in failing to guard the place, etc., and fell into the excavation and was injured, wholly by reason of the negligence of the appellee “as aforesaid.”
When a plaintiff sought to recover an undivided part of land as having descended to her from her father, and was unable under the evidence to recover on such ground she was not permitted to amend her complaint on the trial so as to claim a share in the land as coming to her from her deceased sisters. It was
When a complaint sought to charge the defendant, a railroad company, as common carrier for the loss of goods, shipped over its line and destroyed by fire while in its depot awaiting delivery to another carrier, an amendment seeking to charge the company for negligence, as warehouseman was held not permissible, because the action had become barred by the statute of limitations, prior to the- amendment. People, ex rel., v. Judge, etc. (1876), 35 Mich. 227; Anniston, etc., R. Co. v. Ledbetter & Farmer (1890), 92 Ala. 326, 9 South. 73.
In Lambard v. Fowler (1845), 25 Me. 308, where the complaint originally sought to recover against the defendant as sheriff, on the ground of his responsibility for the acts of his deputy, it was held that an amendment could not be permitted by adding another count which sought recovery for other acts of the sheriff him: self, though both counts were intended for the recovery of damages arising from the loss of the same rights. It was said: “The new count filed by the plaintiff is for the acts and neglects of the sheriff himself, for which the deputy is in no way officially responsible to bim; the other is for the neglects of the deputy alone, for which the sheriff was once liable, upon the proof in the case, to the creditor; and the amendment was unauthorized.”
Judgment affirmed.