276 F. 337 | 5th Cir. | 1921
The complaint of plaintiff in error alleges that on March 3, 1917, “defendant was engaged in operating a railroad in Tallapoosa county, Ala., and the plaintiff was on said date in the service or employment of the defendant as a station agent or telegraph operator at Slaughters,” in the said county, and was required to work in a car, the roof of which was out of repair, in
The court based its action upon the grounds: (1) That under the complaint as amended the cause could not have been removed from the state court; (2) that the amendment set up a new cause of action, which was barred by the statute limitations of two years prescribed by" the federal Employers’ Liability Act (Comp. St. §§ 8657-8665); (3) and that plaintiff in error assumed the risk involved in using a leaking, wet, and cold box car as a telegraph office.
“If the amendment merely expanded or amplified what was alleged in sup. port of the cause of action already asserted, it related back to the commencement oi the action and was not affected by the intervening lapse of time. *• * But, if it introduced a new or different cause oí action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested.”
In that case the complaint alleged:
That the defendant was operating “a line of railroad in Virginia, North Carolina, and elsewhere; that the plaintiff was in its employ; that when he was injured lie was in the line of duty and was proceeding to get aboard one of the defendant’s trains; and that the injury was sustained at Cochran, Va., through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition.”
It was held that the amendment did not allege a new cause of action, but merely expanded or amplified the original complaint. It was also pointed out in the cited case that the action was not based upon the laws of North Carolina, because the injury occurred in Virginia, and that the action was not based upon the laws of Virginia, because they were not pleaded; that the fact that it was alleged that the defendant operated its railroad in states other than Virginia was material only if the cause of action arose in interstate commerce, and therefore under the federal Employers’ Uability Act. But these comments by the Supreme Court only go to show that it might be concluded that; the railroad company was engaged in interstate commerce. However, under the terms of the act, it is inapplicable unless the employee is also "employed by such carrier in such commerce.” The allegation of the complaint in the Rent), Case was thus construed as stating that the railroad company, was an interstate carrier, but there is no allegation that it was engaged in interstate commerce at the time of the injury. By a similar expansion or amplification of the original complaint in the instant case there is as much basis for holding that plaintiff in error, at the Lime of his injury, was engaged in interstate commerce, in view of the allegation that be was a telegraph operator. The testimony of the train dispatcher that plaintiff in error was engaged in assisting in directing the movement of interstate trains, was to be expected. It is doubtful if the train dispatcher of any railroad company, and the operators under him are not constantly engaged in directing the movement of passengers or freight in interstate commerce. In one case at least it has been field that courts will take judicial notice that a particular railroad company is engaged in interstate commerce. Dingman v. Railroad Co., 164 Mich. 328, 130 N. W. 24, 32 L. R. A. (N. S.) 1181. It is also stated in 15 R. C. L. 1119:
“As courts take judicial notice of the leading geographical features of the country, and as the locality of important tines of railroad, onco established, become as fixed and permanent and as well known as any other geographical feature, the courts will have cognizance of the directions, runs and locations of the important railroads within their jurisdictions,” etc.
In Seaboard Airline Railway Co. v. Koennecke, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. 324, suit was brought by the widow and four children, and was based upon a South Carolina statute. The evidence having shown liability under the federal Employers’ Riability Act, an amendment was asked and allowed. In that case this significant statement is made:
“The cause o£ action arose under a different law by the amendment, but the facts constituting the tort were the same, whichever law gave them that effect,” etc.
Of course, a remedy provided by the federal Employers’ Riability Act is exclusive, and it is clear that the act must be given effect where-ever it comes into conflict with a right of action which would otherwise exist. But in this case plaintiff in error alleged a cause of action which exists under the common law, and in the absence of any
plaintiff is not required to state under what law he brings his action, but is only required to plead facts which under the law— char, is, any law applicable to the case — entitle him to recover. It so happens that in the case at bar the facts plea.ded entitle plain-¡iff to recover at common law if they fail to come within the provisions of either the Alabama statute or the act of Congress. If in proof A suc.li a case it develops that a statute authorizes a recovery upon the facts pleaded, in reason .and in justice the utmost the wrongdoer is entitled to is to have ihe law made applicable by the statute given in charge o the jury, it would be manifestly absurd, and a contradiction in terms, io hold that a plaintiff cannot recover, because, forsooth, be has pleaded and proved a case for which the law provides he shall recover.
It is cor¡tended that it was within the discretion of the trial court either to permit or refuse the filing of an amendment to the complaint, which discretion is not reviews!)le unless abused. But the Distrim Court, as shown by the judgment roll, refused to allow the amendment because in its opinion it was without jurisdiction or authorily A «• > so. It is apparent that the court would not have disallowed the: amendment i£ it had been of opinion that its discretion could be exercised.
The judgment is reversed, and the cause remanded for. a new trial.
181 S. W. 1108, L. R. A. 1918F, 1206.