Davis v. Lewis
| Decision Date | 05 April 1923 |
| Docket Number | 2918. |
| Citation | 288 F. 704 |
| Parties | DAVIS, Director General of Railroads, v. LEWIS. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward A. Markley, of Jersey City, N.J., and Collins & Corbin, of Newark, N.J., for plaintiff in error.
Wall Haight, Carey & Hartpence and Samuel Greenstone, all of Jersey City, N.J. (Thomas G. Haight, of Jersey City, N.J., of counsel), for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Charles E. Lewis was driving a heavy truck along Johnson Avenue in Jersey City. On crossing the tracks of the Lehigh Valley Railroad Company he was thrown to the ground and killed. Sadie J. Lewis, his administratrix, brought this action against Walker D. Hines, Director General of Railroads operating the Lehigh Valley system, to recover under the Death Act of New Jersey (2 N. J.Comp.St.p. 1907, pl. 7) the pecuniary loss which she, as widow, and those who were next of kin of the decedent, had sustained by reason of his death. In her complaint she charged that her husband's death was caused by the neglect of the defendant properly to construct and keep in repair a good and sufficient passageway across the railroad at the place of the accident. The plaintiff had a verdict. The case is here on the defendant's writ of error.
Continuing to speak of the parties as they stood in the court below, the defendant, at the hearing on the writ, moved to dismiss for lack of jurisdiction. He based the motion on the fact that more than twelve months had elapsed in the interval between the resignation of Walker D. Hines, Director General of Railroads, party defendant, and the substitution of his successor, James C. Davis, Director General of Railroads, as agent, under the Transportation Act of 1920 (41 Stat. 456). Act of February 8, 1899, 30 Stat. 822 (Comp. St. Sec. 1594); Le Crone v. McAdoo, 253 U.S. 217, 219, 40 Sup.Ct 510, 64 L.Ed. 869; John Barton Payne, Agent, v Industrial Board of Illinois, 42 Sup.Ct. 462, 66 L.Ed. 790.
While the motion was pending, the very serious question it raised was set at rest by the Act of March 3, 1923, amending section 206 of the Transportation Act of 1920, which provides that a suit, properly commenced, shall not abate by reason of the resignation of the Director General of Railroads, the defendant, but may, despite the provisions of the Act of February 8, 1899, with reference to the abatement of actions, be prosecuted on the substitution of the agent, then in office, at any time before satisfaction of the final judgment. Accordingly, the motion to dismiss is denied.
On this writ of error the defendant does not question the sufficiency of the evidence to sustain the verdict. He addresses himself solely to questions of law.
The first matter assigned as error concerns a claimed variance between the plaintiff's pleading and her proof. It arose in this way: The plaintiff alleged in her complaint that the defendant Director General operated the system of the Lehigh Valley across the public highway in question and that on the day of the accident, 'and for some time prior thereto, maintained the crossing of the said Johnson Avenue, over and along its rails and tracks in a defective and dangerous condition,' etc. When, in opening to the jury, counsel for the plaintiff described the place of the accident, he was interrupted by counsel for the defendant with the objection that the place about which he was talking was different from the place named in the complaint, and that, accordingly, in stating a different place of the accident he was stating a cause of action different from the one declared on. As the objection was made not to evidence offered by the plaintiff but to remarks made by her counsel, the court, after discussion, denied 'whatever motion' counsel for defendant had to make at that time. Thereafter the plaintiff's evidence as to the place of the accident was offered and admitted without objection.
It developed in the testimony that there were two crossings of the Lehigh Valley over Johnson Avenue situate about 140 feet apart; one a crossing of six tracks for general traffic and the other a spur crossing of a single track leading from the railroad yards to a manufacturing plant. The defendant calls the former a public crossing and the latter a private crossing and draws therefrom distinctions both in fact and law.
It is of course, thoroughly settled that the plaintiff at the trial was limited in her proof to the cause of action pleaded in her complaint. The cause of action there stated was the negligence of the defendant which occasioned the death of her husband at 'the crossing' of the avenue. The defendant maintains that by this expression the plaintiff meant the 'main' crossing. If he is right there is a variance, for the proofs show that the accident occurred at the spur crossing. If, however, the words 'the crossing' refer to the spur crossing, to which alone the evidence was directed, there is no variance. In this dispute as to the crossing involved, we are of opinion that if there had been any doubt in the mind of the defendant as to what crossing the plaintiff meant he should not have pleaded to the complaint but should have...
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