126 Neb. 579 | Neb. | 1934
This is an action to recover damages in the sum of $30,000 for personal injuries. Defendant is a common carrier operating a railroad and engaged in both interstate and intrastate commerce. Plaintiff was a section hand. While engaged in the line of his employment by defendant, unloading scrap iron from a flat-car onto a storage platform at Emerson, he stepped onto the wheel of a disappearing hand brake to look into an adjacent gondola car to see what tools would be needed in removing scrap iron therefrom. His weight suddenly forced the brake shaft downward through its sleeve until the brake wheel was flush with the floor of the flat-car. Plaintiff fell between the cars and was injured. He alleged in his petition that he got upon the brake wheel carefully with due regard to, and in line of, his duty “as prescribed by the defendant,” and that defendant kept the brake wheel and all the parts on which it rested in a “careless, negligent, unsafe, loose, shaky and wabbly condition,” and that by reason thereof he sustained the injuries of which he complains. He pleaded his case solely under the federal employers’ liability act. Defendant denied that plaintiff was engaged in interstate commerce when injured. Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $14,000. From judgment therefor defendant appealed. Upon a review of the proceedings and judgment of the district court, the issues and evidence were fully considered, and it was held that plaintiff was not engaged in interstate commerce when injured and that therefore he was not entitled to recover damages
Long after the cause reappeared in the district court pursuant to the mandate of the supreme court, plaintiff moved to amend his petition on the ground that, as originally drawn, it permitted him to recover damages under both federal and state laws, independently of the federal employers’ liability act. The motion to amend was overruled and the action dismissed. Plaintiff appealed.
Did the district court err in overruling the motion to amend the petition and in dismissing the action? Following is a chronology of events: September 28, 1923, plaintiff injured; April 27, 1925, action for damages Commenced; March 20, 1926, judgment in favor of plaintiff for $14,000; July 2, 1929, reversal in supreme court; August 19, 1929, mandate issued; November 25, 1929, motion by defendant in district court to dismiss action; February 15, 1933, action dismissed; May 24, 1933, motion by plaintiff to vacate dismissal and amend petition; October 16, 1933, dismissal set aside and action again dismissed; November 7, 1933, appeal from dismissal taken to supreme court.
On the former appeal there was an adjudication that plaintiff did not prove a cause of action under the federal employers’ liability act. It will be observed that the motion to amend the petition was made nine years after the accident and eight years after the action was commenced. It is clear, therefore, that a^ cause of action under the federal safety appliance act or state laws, if first stated by an amendment of the petition, would be barred by the statute of limitations. One of the amend
Plaintiff argues that the facts constituting the actionable wrong were pleaded in the petition as first drawn and that he has a right to recover under the common law in force in Nebraska and under the Nebraska railroad employers’ liability act and under the federal safety appliance act. It is further argued that the amendments would not introduce a new cause of action and that they should be allowed without regard to the lapse of time since the action was brought. This position seems to be untenable in view of the record and proceedings now presented for review. In reaching this conclusion, it has not escaped attention that, on February 5, 1934, the supreme court of the United States held that an interstate carrier’s employee, if injured in interstate commerce, may bring an action under the federal employers’ liability act in connection with safety appliance acts and predicate actionable negligence on a violation of the latter acts. Moore v. Chesapeake & O. R. Co., 78 U. S. L. Ed. 488. It has also been observed that, in another recent decision by the same court, “A change of - the legal theory of the action, ‘a departure from law to law,’ ” recognized in Union P. R. Co. v. Wyler, 158 U. S. 285, was not accepted as a test of general validity, and a more liberal rule, permitting amendments of petitions to allow recovery under statutes not originally pleaded, was adopted. United States v. Memphis Cotton Oil Co., 288 U. S. 62. The record now under consideration, however, prevents the application of those rulings to the present contro- ■ versy.
Affirmed.