| Mo. | Feb 20, 1900
This cause has been certified to this court by the St. Louis Court of Appeals, owing to a difference of opinion among the judges of that court.
The plaintiff commenced his action by filing the follow
“Eor cause of action, plaintiff states that defendant is a corporation and that it does, and on 14th of October, 1895, did own and operate a certain railroad running through said township and county and through the village or city of Mansfield, situate in said township and county, together with certain locomotives and trains of cars thereon. That said village or city of Mansfield is an incorporated municipality under the laws of this State and has, and on said date had, a code of ordinances in legal operation, and amongst others one prohibiting all locomotives and trains being run on said railroad within the limits of said municipality at a greater speed than six miles per hour.
“That *on the aforementioned date plaintiff was the owner of a certain cow of the value of $35, which said cow then and there casually strayed on defendant’s said railroad in said village or city of Mansfield, and defendant then and there by its agents and servants negligently and in violation of said ordinance, and without sounding a whistle or ringing a bell, as it was its duty to do, ran a certain locomotive and train of cars on said railroad, through said city or village with great and dangerous and negligent speed, to wit, the speed of twenty miles per hour, by reason of all which negligence defendant’s locomotive and train of cars struck and killed plaintiff’s said cow in said village or city in said township, to the damage of plaintiff in the sum of $35, for which he asks judgment.”
On this statement there was a trial and judgment for plaintiff for $35 and defendant appealed to the circuit court. .
On the return of said appeal plaintiff filed in the circuit court the following amended statement:
“Eor amended cause of action plaintiff alleges that defendant is a corporation and that it does and on the 14th of
Defendant moved to strike out this amended statement
This motion the court overruled, and defendant excepted.
Defendant then demurred on two grounds: Eirst, because the statement failed to state a cause of action; second, becausé it changed the cause of action from that filed in the justice’s court.
The court overruled the demurrer, and defendant declined to participate in the trial, and thereupon the cause was heard and judgment rendered for plaintiff for $30.
Thereupon defendant filed its motion in arrest, which was heard and overruled, and defendant excepted, and after-wards defendant filed its motion for new trial, which was overruled, and it excepted, and then appealed.
I. The sole question for decision is, did the circuit court err in refusing to strike out the amended statement filed in that court'? Section 6347, Revised Statutes 1889, provides: “In all cases of appeal, the bill of items of the account sued on or filed as a counter-claim or set-off, or the statement of the plaintiff’s cause of action, or of defendant’s counterclaim or set-off, or other ground of defense filed before the justice, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.”
This statute is remedial and should be given a liberal construction.
The original statement, we think, intended to state two grounds of negligence which contributed to the death of plaintiff’s cow, to-wit, the negligence in running the train at a greater rate of speed than provided by the town ordi
It seems obvious that the last ground had no reference to the ordinance because the ordinance contained no such provision. It was an imperfect and unhappy effort to charge defendant with a failure to ring the bell or sound the whistle on its locomotive as it approached the street crossing.' That it fell short must be conceded; otherwise, it would have needed ho amendment. To make it good it was necessary to charge not only the failure to ring the bell or sound the whistle as required by the statute (section 2608, R. S. 1889), but to allege that the cow was killed by reason of such failure. The amended statement supplied these omissions.
The original statement charged that plaintiff’s cow was killed by the negligence of defendant’s servants in running its train, on the 14th. of October, 1895, in Mansfield, Wright county.
The amended statement still charges that same general cause of action, but specifically alleges that the negligence consisted in failing to ring the bell or sound the whistle as the train approached the street crossing on which the cow was killed.
This was the same cause of action. It was not the introduction of an entirely new cause.
The amendment was authorized by the statute, and is in harmony with the decisions of this court in Minter v. Railroad, 82 Mo. 128" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/minter-v-hannibal--st-joseph-railroad-8007903?utm_source=webapp" opinion_id="8007903">82 Mo. 128, and cases therein cited.
The test announced by the Supreme Court of Vermont in Daley v. Gates, 65 Vt. 592, cited by Biggs, J., in hi,s opinion is.in harmony with the opinions of this court. Said the Vermont court: “As long as the plaintiff adheres to the contract or injury originally declared upon, an alternation of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a
In our opinion tbe same cause of action, tbe same injury is counted upon in tbe amended statement as was tbe basis of tbe original statement, and tbe circuit court properly refused to strike it out. Tbe judgment of tbe circuit court is affirmed.