Renn v. . R. R.Renn v. . R. R.
The original complaint is as follows:
1. That he is, and at the times hereinafter mentioned was, a resident of Wake County, North Carolina.
2. That the defendant is, and at the times hereinafter mentioned was, a corporation existing and doing business under the laws of the State of North Carolina, and was operating a line of railroad in the State of North Carolina and in the State of Virginia, and elsewhere.
3. That on 14 January, 1912, the plaintiff was in the employment of the defendant, and in the discharge of the duties of his said employment it became and was proper and necessary for the plaintiff to traverse a certain piece of ground beside the railroad track of the defendant and within its right of way at or near the station known as Cochran, Va., and to do so hurriedly in order to get abroad a train of cars then and there being operated by the defendant; that at the said time it was snowing and the ground had become and was covered and hidden by snow; that the defendant had carelessly and negligently caused, permitted and allowed water to be poured or spilled upon the ground at said place and to become frozen, thereby covering the ground for a considerable space with a sheet of ice, and the defendant had negligently permitted and allowed the said ice to be and remain upon the ground at the said place, and to become and be covered and hidden by132 the snow, and had thereby negligently caused a highly dangerous condition to exist, and the said place and condition was highly dangerous and perilous and the defendant in the particulars aforesaid, the plaintiff, while proceeding along the said ground in the exercise of ordinary prudence and care, and without notice, knowledge or information or warning of any kind of the existence of said danger, was caused to slip and fall heavily upon the ground, and thereby his collar bone and other bones were injured and dislocated, and he was bruised and wrenched and strained and sprained, and he was caused to suffer other serious, painful, dangerous and permanent injuries to the muscles, bones, nerves and ligaments of his body, head and extremities, and caused to suffer much pain and anguish of body and mind.
4. That on account of the negligence of the defendant as aforesaid, the plaintiff has been damaged in the sum of ten thousand dollars ($10,000).
Wherefore, the plaintiff prays judgment that he recover of the defendant the sum of ten thousand dollars damages, and the cost of this action, and that he have such other relief as may be proper.
The plaintiff offered evidence tending to prove: That he was a resident of the city of Raleigh, N.C. and in the employment of the defendant as repairer of its pumps between Raleigh, N.C. and Richmond, Va., and in the course of his employment was ordered by the defendant to go, as he did, from Raleigh, N.C. to Cochran, Va., to repair one of the pumps used by the defendant in connection with its line of railroad from Raleigh to Richmond; that he arrived at Cochran after dark;
The plaintiff introduced a witness by the name of Parks who was present at the time the plaintiff was injured and testified as to the condition of the ground, of the weather and to other circumstances, including that of the tank running over. He was asked the question, “Why was the tank running over?” and he replied, “Because the pumper was neglecting his duty and let it continue to run after the tank was full,” and the defendant excepted.
At the conclusion of the evidence the defendant moved for judgment of nonsuit upon the following grounds:
1. That the evidence disclosed a right of action under the Federal Employers’ Liability Act and that the complaint did not state a cause of action under this statute.
2. That there was no evidence of negligence.
The plaintiff contended that the complaint was sufficient and stated a cause of action under the Federal act, but asked leave to amend by alleging that the plaintiff was employed in interstate commerce at the time of his injury. The defendant objected to the amendment, as it appeared that it was asked for more than two years after the injury occurred. The amendment was allowed and the defendant excepted.
His Honor then overruled the motion for judgment of nonsuit and the defendant excepted. The defendant then filed an answer pleading the statute of limitations and assumption of risks as defenses.
The defendant requested his Honor, in apt time and in writing, to charge the jury, if they believed the evidence, to answer the issue as to
His Honor also instructed the jury to answer the issue as to the the employer is not a guarantor of the safety of the place of work of of the machinery and appliances of the work to be done by the employee. (The extent of its duty to its employee is to see that ordinary care and prudence are exercised to the end that the place in which the work is to be performed may be safe for the workmen.) To the foregoing charge in parenthesis defendant excepted.
His Honor also instructed the jury to answer the issue as to the statute of limitations in the negative, and the defendant excepted.
The jury returned the following verdict:
1. Was the plaintiff injured by the negligence of the defendant? Answer: Yes.
2. Did the plaintiff assume the risk of injury? Answer: No.
3. Did the plaintiff, by his own negligence, contribute to his injury? Answer: No.
4. What damage, if any, is plaintiff entitled to recover? (135) Answer: $3,500.
5. At the time alleged in the complaint, was the defendant engaged in interstate commerce, and was the plaintiff employed by the defendant in such commerce? Answer: Yes.
6. Did the plaintiff‘s cause of action accrue more than two years before the amendment to his complaint was filed? Answer: No.
Judgment was entered upon the verdict in favor of the plaintiff and the defendant appealed. It is admitted that the defendant is a common carrier engaged in interstate commerce and that the plaintiff was employed in such commerce at the time of his injury. It was therefore necessary and essential to allege a cause of action under the Employers’ Liability Act, because the Federal statute is exclusive and supersedes the right of action under the State Law. Mondou v. R. R., 223 U.S. 1; R. R. v. Wulf, 226 U.S. 570; and R. R. Co. v. Hayes, 234 U.S. 86.
In the last case the Court says, “Had the injury occurred in interstate commerce, as was alleged, the Federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the State; in other words, the Federal act would have been exclusive in its operation, not merely cumulative“; citing for this position, among others, the Mondou case, which
We must then examine the original complaint for the purpose of seeing if it alleges a cause of action under the Federal act, and, if not, must inquire into the power of the court to allow the amendment.
This presents a question of pleading and practice under the laws of this State, as the Supreme Court of the United States has said in Brinkmeier v. R. R., 224 U.S. 268, in reference to an assignment of error on account of an amendment to a pleading: “Error is assigned upon this ruling; but as it involved only a question of pleading and practice under the laws of the State it is not subject to review by us,” and there are many other cases to the same effect.
When we turn to our statutes we find it is provided by
These statutes were considered in Blackmore v. Winders, 144 N.C. 215, and it was there held, with reference to a pleading, that “If it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader,” and this was approved in Brewer v. Wynne, 154 N.C. 467.
If this rule of construction is applied to the original complaint and it is construed in the liberal spirit contemplated by the Code, it alleges a cause of action under the Federal statute.
It must be kept in mind that the plaintiff was employed in interstate commerce at the time of his injury by an interstate carrier, and that he had no cause of action except under the Federal statute, because, as we have seen, it had the effect of superseding the State laws.
The original complaint alleges that the plaintiff was injured by the negligence of the defendant and that this caused him damage, which
As there is no reference to intrastate business in the complaint, and it is alleged that the defendant was doing an interstate business, that he was injured while in the discharge of his employment, is not the inference permissible and reasonable that he was employed in interstate business and was injured in the discharge of his duties in that employment? If, however, the original complaint does not allege an cause of action under the Federal act, we are of opinion that the court had the power to permit it to be amended by alleging that the defendant (137) was employed in interstate commerce at the time of his injury.
We must again have recourse to our own statutes and decisions, and we find that “Any pleading may be once amended of course, without cost and without prejudice to the proceedings already had, at any time before the period for answering it expires; or it can be so amended at any time, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of the term for which the cause may be or is docketed for trial” (
These sections of the Revisal have been very fully considered in Ladd v. Ladd, 121 N.C. 118; Lassiter v. R. R., 136 N.C. 93; Bank v. Duffy, 156 N.C. 87, and in other cases, and the distinction is drawn between a defective statement of a cause of action which may be amended and the statement of a defective cause of action which cannot be amended.
In the Lassiter case the Court says: “The difference between a defective statement of a good cause of action which can be amended by inserting other material allegations and a statement of a defective
If this is a correct statement of the law, it is conclusive upon the power of the court to amend the complaint by allowing an additional allegation to be made, as the original complaint with the amendment admittedly states a good cause of action under the Federal statute. R. R. v. Wulf, 226 U.S. 570, seems to be decisive of the right to amend. In that case Sallie C. Wulf commenced an action in the Circuit Court of the United States in the Eastern District of Texas, in her individual capacity to recover damages for the death of her son who was killed in Kansas, and she alleged in her original complaint that in the State of Kansas a right of action was provided by statute for injuries resulting in death. The defendant was engaged in interstate commerce and the interstate was killed while employed in that commerce. The plaintiff could not sue in her individual capacity under the Federal act. More than two years after the injury the Circuit Court permitted an amendment by which she was allowed to prosecute the action as administratrix of her son. The Supreme Court of the United States approved the amendment and held that it was not equivalent to the (138) commencement of a new action so as to render it subject to the two years limitation prescribed by section 6 of the Employers’ Liability Act, and that the amendment related back to the beginning of the action.
R. R. v. Wyler, 158 U.S., which is relied on by defendant, is commented upon in the Wulf case and distinguished, and it was pointed out that in the Wyler case the amendment introduced a new and distinct cause of action, while in the case before us there is but one cause of action, and if the original complaint was defective it is only because of the absence of one allegation necessary to a complete and perfect statement of a cause of action.
The Employee‘s Liability Act confers concurrent jurisdiction upon the State courts for the trial of causes of action arising thereunder and, instead of prescribing the practice and procedure for the State courts, it is provided in another act of Congress as to actions at law in the Federal courts (and this falls within that class), that “The propriety of amendments to pleadings in the Circuit and District Courts of the United States is governed by the provisions of section 1914 of the Revised Statutes to the effect that: The practice, pleadings and form and mode of proceeding in civil causes other than equity and admiralty causes in the Circuit and District Courts shall conform as near as may be to the practice, pleadings and form and mode of proceeding existing at the time in like causes in the courts of record of the State within
If, therefore, the action had been commenced in a court of the United States the power would have existed of “inserting other allegations material to the case” in conformity with our statute (
If a proposed amendment cannot be allowed because material and necessary to the statement of a cause of action, the power of amendment, which Mr. Justice Swayne says, in Tilton v. Cofield, 93 U.S. 163 “is incidental to he exercise of all judicial power and is indispensable to the ends of justice,” becomes useless and of no effect, as an amendment need not be made if not material.
We therefore conclude that the court had the power to allow the amendment, and this also disposes of the exception to charge upon the sixth issue because the amendment related back to the commencement of the action, which was brought within two years from the time of the injury.
The defendant also relies, in his motion for nonsuit, upon the contention that there is no evidence of negligence, and this necessitates an examination of the duty imposed upon the employer and whether the evidence discloses a failure to perform that duty, which (139) proximately caused the injury to the plaintiff.
In R. R. v. Horton, 233 U.S. 492, the Court says: “The common law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence is exercised, to the end that the place in which the work is to be performed and the tools and appliances for the work may be safe for the workmen,” and concludes that the Employees’ Liability Act has not changed this rule of liability.
It being, then, the duty of the defendant to furnish the plaintiff a reasonably safe place in which to do his work, and the authorities are all to this effect, is there any evidence that it failed in the performance of this duty?
The plaintiff was injured at night and he testifies that he was exercising due care for his own safety. He had not been about the premises where he was injured on the day of the injury until he was injured.
There is evidence that an employee of the defendant whose duty it was to pump water into the tank unnecessarily permitted the pump to continue working after the tank was full, and that this caused water to pour out upon the path over which the plaintiff was required to go in the performances of his duties; that this continued for such a length
The charge of his Honor as to the duty of the defendant to provide a safe place is substantially taken from the Horton case, which we have before cited, and the same case sustains the ruling refusing to direct a verdict in favor of the defendant on the issue of assumption of risk. In that case Court says: “Such dangers as are normally and necessarily incident to the occupation are presumably taken into the (140) account in fixing the rate of wages, and a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort not naturally incident to the occupation, may arise out of failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.”
His Honor followed this statement of the law, quoting this language from the opinion, and saying further: “If, by the exercise of ordinary care and prudence (it was the duty that he owed), he could have seen that the ice accumulated at the place, and could have become aware that there was risk in walking over it, then he would be charged with such facts as the exercise of such ordinary care would have disclosed to him, and if you are satisfied that they would have disclosed to him that the ice was there and that it was slippery, then you will find that he has assumed the risk of the injury in passing over it, and in that event he would answer the second issue `Yes‘.” And again, “That the plaintiff in his employment fixing pumps for the defendant, and in going from place to place in the performance of his duty, assumed the risk which inclement weather added to his employment, and
This compiles with the rule laid down in the Horton case, because if the evidence of the plaintiff is true, the condition of the place where the plaintiff was injured was not normal, but was unusual, and the plaintiff could not discover it by the exercise of ordinary care.
The witness Parks was asked: “Why was the tank running over?” Objection by the defendant. Objection overruled; defendant excepted. He replied: “Because the pumper was neglecting his duty and let it continue to run after the tank was full.” We do not approve of the expression, “because the pumper was neglecting his duty,” and doubtless if defendant had moved to strike this out as an expression (141) of opinion the motion would have been granted, but the motion to strike out was made upon another ground and one which is not tenable — that this particular act of negligence was not alleged in the complaint, and it is well settled that “Where a party states the ground of his objection to evidence below he cannot rely upon a different ground in this court.” Ludwick v. Penny, 158 N.C. 113.
In Presnell v. Garrison, 122 N.C. 595, Furches, J., says: “But as a wrong reason was assigned for the objection, we treat the case as if no objection had been taken“; and Rollins v. Henry, 78 N.C. 342; Kidder v. McIlhenny, 81 N.C. 123, and Jones v. Call, 93 N.C. 179, support the same rule.
It was not necessary to allege the negligent act of permitting the tank to run over, in the complaint, because the negligence relied on is that the defendant did not provide a safe place for the plaintiff to work, and evidence that the tank ran over was competent under this allegation for the purpose of showing that the ice did not form across the path from natural causes.
If, however, his Honor had been asked to strike out the answer of the witness upon the ground that it was an expression of opinion, his refusal to do so would not have constituted reversible error, because when the answer is considered as a whole and in connection with the context it amounts to no more than a statement that the pumper permitted
The plaintiff while on the witness stand was asked: “Did you cause your own fall in any way?” Objection by the defendant; objection overruled; defendant excepted; and he replied: “No, I did not. I was just as careful walking as I could be.” Phifer v. R. R., 122 N.C. 940, is authority for the position that the later part of the answer is objectionable as an expression of an opinion, but the later cases and the trend of authority elsewhere are that it is competent as a statement of a fact. Taylor v. Security Co., 145 N.C. 385; Britt v. R. R., 148 N.C. 40; S. v. Leak, 156 N.C. 647; 3 Wig. Ev., sec. 1938; McKelvey Ev., p. 220.
Professor Wigmore says, vol. 3, sec. 1949; “This topic is one of the few upon which there has ever existed in the English precedents any foundation for doubt. The subject of the testimony in question is manifold; sometimes it is whether proper care was taken, sometimes whether action was reasonable, sometimes whether sufficient skill was shown, sometimes whether a place or a machine was safe; but all the forms seen reducible to a general one, namely, whether a certain standard of conduct was observed. Looking first at the orthodox (142) practice in England, it is clear there is not and never has been any real question as to the propriety of such testimony. The morbid and doctrinaire theory of cautiousness which is the foundation of the American rulings has never been known at the English bar.” He speaks of the rule of exclusion as a “modern excrescence on the common law” and concludes that such evidence is competent.
Mr. McKelvey, in a passage quoted with approval in S. v. Leak, says: “The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence. A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, `matter of fact,’ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person‘s hair or any other physical fact of like nature. This class of evidence
In S. v. Williams, 168 N.C. 195, expressions in dying declarations “I did nothing,” “He cut me for nothing,” “They had no occasion to shoot me,” “I have done nothing to be shot for,” are considered as statements of facts and not opinions. If, however, evidence was objectionable it could have had but little, if any, bearing upon the issue, because the plaintiff described his conduct in detail and showed he was careful, and there was no evidence to the contrary.
We might also dispose of the exception upon the ground that it was competent for the witness to say he did not cause his own fall, and if the answer went beyond the question the remedy of the defendant was to move to strike out. Caton v. Toler, 160 N.C. 106.
The judges of the Superior Court should be careful in the application of this principle to see that opinions are not admitted under the guise of facts, and usually it is better and wiser to require the (143) witness to state the circumstances surrounding the transaction and no more.
We have carefully considered the whole record and find no error.
No