O'Dell v. Southern Ry. Co.

• Decision Date: 25 November 1917
• Citation: 248 F. 343
• Parties: O'DELL v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

248 F. 343

O'DELL v. SOUTHERN RY. CO.

United States District Court, W.D. South Carolina.

November 25, 1917

J.J McSwain, of Greenville, S.C., for plaintiff.

Cothran Dean & Cothran, of Greenville, S.C., for defendant.

JOHNSON District Judge.

The complaint alleged that the plaintiff was engaged in interstate commerce work at the time of his injury. There was no testimony to show that he was so engaged. The testimony showed that he was injured while working on an electric motor in the yards at Asheville, N.C. The plaintiff moved to strike out the allegation that he was engaged in interstate commerce, so as to have the complaint conform to the facts proved. The court allowed the amendment. The defendant demanded time to answer. That demand was refused. The cause was argued by counsel, and, after instructions by the court, submitted to the jury. The verdict was for the plaintiff. Defendant moved for a new trial.

The motion for a new trial is based upon all the grounds upon which the defendant asked for a directed verdict, and upon two additional grounds: First, that the court erred in allowing the plaintiff to amend his complaint and in denying the defendant time to answer; second, that the verdict is excessive. Only the last two grounds need be considered here as all the others were overruled when the court refused to direct a verdict.

Did the court err in allowing plaintiff to amend his complaint after the evidence was all in? The allowance of amendments to pleadings and the conduct of the trial must rest in the discretion of the court; but such discretion should be so exercised as not to deny any litigant a substantial right. The plaintiff, by the language of the complaint, indicated that his recovery would be on account of the defendant's breach of its duty to him as its servant while engaged in interstate commerce. The defendant denied that the plaintiff was engaged in interstate commerce. There is no dispute about when the plaintiff was injured, or where he was injured, or what he was doing at the time of his injury. The relation of master and servant existed between the plaintiff and the defendant. The plaintiff was working in Asheville, N.C., and at the time of the injury was engaged in repairing a motor which when in use operated a bucket. The bucket lifted cinders from a pit into which they had been dumped by the defendant's engines.

The plaintiff was engaged in interstate or intrastate commerce. The defendant, in full possession of all information touching the time and place of the injury, and what the plaintiff was doing when he was injured, denied that he was engaged in interstate commerce. If he was engaged in interstate commerce, the Employers' Liability Act is applicable. If he was engaged in intrastate commerce, the laws of North Carolina, where the injury occurred, would apply. When the facts are all out, it is the duty of the court to apply the law applicable to the facts. If it is...