71 Mo. App. 557 | Mo. Ct. App. | 1897
Lead Opinion
This action was brought before a justice of the peace on the following statement of plaintiff’s cause of action: “For cause of action, plaintiff' states that* defendant is a corporation and that it does, and on the fourteenth 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 amongst others, one prohibiting locomotives and trains being run on said railroad within the limits of said municipality at a greater speed than sis 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 ofcai’s 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.”
Defendant moved to strike out the amended statement, because it stated a new and different cause of action. This motion being overruled, defendant filed a demurrer to the amended statement, stating among other causes, that the amended statement was a departure from the original cause of action. The demurrer was likewise overruled, and defendant declined to further participate in the proceedings. The plaintiff’s case was heard by the court without the intervention of a jury, and judgment rendered for plaintiff for $35, from which the defendant has appealed.
The evidence supported the finding of the court, and the sole question presented by the record for our consideration is, did the amended statement change the cause of action. If so, under the provisions of section 6347, Revised Statutes 1889, the judgment must be reversed. The negligence charged in the original complaint is that the defendant in violation of an ordinance of the village of Mansfield ran its locomotive and ear through said village at a dangerous and negligent speed, and struck and killed plaintiff’s cow, which had strayed upon its road in the corporate limits of the village. The averment in this connection, that defendant failed to ring the locomotive bell or sound the whistle, has no connection with any other averment of negligence in the complaint, nor are any facts stated to show that the defendant’s failure to do so would have been an act of negligence. The amended complaint bottoms the plaintiff’s right to recover upon the fact that his cow was killed at a public road or street crossing, and that the defendant failed to sound the locomotive whistle or ring the bell as required by statutory enactment. The one negligence is for running at a speed
Dissenting Opinion
(dissenting).— The original complaint charged that the cow was killed within the corporate limits of the town of Mansfield, by reason of the negligence of the defendant’s servants in running a train. After averring the existence of an ordinance which prohibited the running of trains through the corporate limits of the town at a greater rate of speed than six
In appeals from justices of the peace the only limitation on the right of amendment is, that “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.” R. S. 1889, sec. 6347. In the case at bar it is clear to my mind that in the original complaint two acts of negligence were intended to be charged. That one was imperfectly charged, I concede, for otherwise no amendment would have been necessary. First, the pleader counted on the negligence of the defendant’s servants in running the train at a greater rate of speed than that provided by the ordinance; and, secondly, that the train was run “without sounding a whistle or ringing a bell, as it was its (defendant’s) duty to do.” The latter averment could not have had reference to a further violation of the ordinance, for the reason that the ordinance did not impose any such duty. It was certainly the intention to state another act of negligence, — that is, the violation by defendant’s servants of the statutory duty to ring the bell or sound the whistle at the approach of
But even though it be conceded that the additional act of negligence was not intended to be charged, my contention is that the original cause of action was in nowise changed by inserting it in the amended complaint. The gist of the action as originally stated was the killing of plaintiff’s cow in the town of Mansfield, by reason of the negligence of the defendant’s servants in running a train. The amendment did not change this cause of action, nor did it introduce a new one, but it merely charged that the injury was caused by a different mode, that is, by a different act of negligence on the part of defendant’s servants in running the train. In determining whether an amendment changes the cause of action, the true rule is, that “the proposed amendment must not change the nature of the cause of action, nor destroy the identity of the original trans
It seems to me that the opinion of my brother judges is opposed to the spirit and scope of the decisions cited by me in the first paragraph, and that as to the second question their opinion can not be reconciled with our decisions in the Norville and Schwab cases. In my opinion the case ought to be certified to the supreme court.