Elder v. Idaho-Washington Northern Railroad

Decision Date24 June 1914
PartiesJ. T. ELDER, Administrator, Appellant, v. IDAHO-WASHINGTON NORTHERN RAILROAD, a Corporation, Respondent
CourtIdaho Supreme Court

AMENDMENT-REFUSAL OF-NONSUIT-JUDGMENT OF.

1. It is not an abuse of discretion upon the part of the trial court to refuse permission to amend a pleading where upon appeal a case has been remanded for a new trial, and where the amendments sought were directly contradictory to the original allegations, and where the amendments were sought for the apparent purpose of avoiding matters formerly alleged and proven in the case, and upon which issue had been joined where no showing is made of excusable inadvertence or mistake, or of fraud upon the part of the other party contributing thereto.

2. Evidence examined and held that upon close of plaintiff's case a nonsuit was properly granted.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.

Action to recover damages for personal injuries. Judgment of nonsuit entered at close of plaintiff's case. Motion for a new trial denied. Plaintiff appeals from judgment of nonsuit and from order denying new trial. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Elder &amp Elder and Stiles & Devaney, for Appellant.

The court should have permitted the amended complaint to be filed and served, and in failing to do so it did not make reasonable use of a sound discretion in the premises, and its action should therefore be reversed and the amendments permitted. (Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 P. 40.)

Where the defendant has discovered or should have discovered the peril of a person to which his own negligence may have exposed him in the first instance, and it is apparent that he cannot escape therefrom or for any reason does not make the effort to do so, or is apparently oblivious to or unaware of his exposed condition and danger, the duty at once becomes imperative for the defendant to use all reasonable care under the circumstances with the means and facilities at hand to avoid injuring him, and if this is not done the defendant becomes liable in damages notwithstanding the negligence of the injured party. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S 254; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; 2 Bailey on Personal Injuries, 2d ed., sec. 504; Havel v. Minneapolis etc. R. Co., 120 Minn. 195, 139 N.W. 137; Neary v. Northern P. R. Co., 37 Mont. 461, 97 P. 944, 19 L. R. A., N. S., 446.)

The question of negligence should have been submitted to the jury. (Schulz v. Chicago M. & St. Paul Ry. Co., 57 Minn. 271, 59 N.W. 192; Chamberlain v. Missouri P. Ry. Co., 133 Mo. 587, 33 S.W. 437, 34 S.W. 842; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91.)

"Where the appearance indicates that a person upon the track is in such condition as to be either insensible of his danger or unable to avoid it, those in charge of the train must use all available means consistent with the safety of those on the train to stop." (Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 P. 997; Cincinnati etc. Ry. Co. v. Long, 112 Ind. 166, 13 N.E. 659; Carrier v. Missouri P. R. Co., 175 Mo. 470, 74 S.W. 1002; Isbell v. New York etc. R. Co., 27 Conn. 393, 71 Am. Dec. 78.)

Chas. L. Heitman, for Respondent.

Said amendments change the nature of the cause of action, as set forth in the original complaint. The court committed no error in refusing to allow the proposed amended complaints to be filed. (Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226; Warner v. Godfrey, 186 U.S. 365, 376, 22 S.Ct. 852, 46 L.Ed. 1203; Union P. R. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983.)

On a second trial, a party will not be permitted to amend his pleading, made with knowledge of all the facts, so as to deny facts which he had previously alleged, and upon which an opinion on appeal had been based. (Lilly v. Menke, 143 Mo. 137, 44 S.W. 730; Box v. Chicago, R. I. & P. Ry. Co., 107 Iowa 660, 78 N.W. 694.)

"In actions ex delicto, the wrongful act complained of is the cause of action, and an amendment of the petition should not be permitted where the effect would be either to substitute as a cause of action a wrongful act different from that alleged in the original petition, or to inject such wrong into the case as an additional cause." (Peery v. Quincy etc. R. Co., 122 Mo.App. 177, 99 S.W. 14; Chicago & A. R. Co. v. Scanlan, 170 Ill. 106, 48 N.E. 826; Illinois Cent. R. Co. v. Campbell, 170 Ill. 163, 49 N.E. 314; Crosby v. Seaboard Air Line Ry., 83 S.C. 575, 65 S.E. 827; Peterson v. Pennsylvania R. Co., 195 Pa. 494, 46 A. 112; Doran v. Thomsen, 79 N.J.L. 99, 74 A. 267; Mantle v. Dabney, 47 Wash. 394, 92 P. 134; Coker v. Monaghan Mills, 119 F. 706; Brown v. Edmonds, 9 S.D. 273, 68 N.W. 734; Ingold v. Symonds, 134 Iowa 206, 111 N.W. 802.)

The employees of respondent, in charge of switch engine 22, moving slowly, its bell ringing, the engine laboring and making a loud noise, were not bound to presume or to assume that an employee, familiar as Neil was with the manner of operating there, would ignore the going and coming of cars, and that they had a right to act upon the belief that Neil in the yards would take reasonable precaution for his own safety against the approach of switch engines, and had a right to assume that he would step off the track before engine No. 22 reached him. (Aerkfetz v. Humphreys, 145 U.S. 418; 12 S.Ct. 835, 36 L.Ed. 758; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Smith v. Atlanta & C. R. Co., 130 N.C. 344, 42 S.E. 139; Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N.E. 32; Louisville & N. R. Co. v. Cronbach, 12 Ind.App. 666, 41 N.E. 15; Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 P. 997; Cincinnati etc. Ry. Co. v. Long, 112 Ind. 166, 13 N.E. 659, 663; Carrier v. Missouri P. Ry. Co., 175 Mo. 470, 74 S.W. 1002.)

The railroad company owed to Neil or to any other of its employees who might be upon its track in its switching yards the duty only to exercise ordinary care. The requirements of ordinary care and diligence are fully complied with when the usual signals are given and the train is being operated and the business conducted when the accident happens in the usual manner. (Hogan v. Chicago etc. R. Co., 59 Wis. 139, 17 N.W. 632; Norfolk & W. R. Co. v. Gesswine, 144 F. 56, 75 C. C. A. 214.)

Engineers running locomotives are not bound to stop, or even decrease the speed of the locomotive, merely because they see persons walking upon the track. They may ordinarily assume that such persons have made themselves aware of the approach of the locomotive and will seasonably leave the track for its free passage. (Copp v. Maine Cent. R. Co., 100 Me. 568, 62 A. 735; Everett v. Los Angeles etc. Ry. Co., 115 Cal. 105, 43 P. 207, 46 P. 889, 34 L. R. A. 350; Bookman v. Seaboard Air Line Ry., 152 F. 686, 81 C. C. A. 612; Erickson v. St. Paul etc. R. Co., 41 Minn. 500, 43 N.W. 332, 5 L. R. A. 786; Norfolk & Western R. Co. v. Dean, 107 Va. 505, 59 S.E. 389; Teel v. Ohio River R. Co., 49 W.Va. 85, 38 S.E. 518; Raines v. Chesapeake & O. Ry. Co., 39 W.Va. 50, 19 S.E. 565, 24 L. R. A. 226; Norwood v. Raleigh etc. R. Co., 111 N.C. 236, 16 S.E. 4; Louisville & N. R. Co. v. Black, 89 Ala. 313, 8 So. 246; Nichols v. Louisville & N. R. Co., 9 Ky. Law Rep. 702, 6 S.W. 339; Exum v. Atlantic Coast Line R. Co., 154 N.C. 408, 70 S.E. 845, 33 L. R. A., N. S., 169; Hebert v. Louisiana etc. R. R., 104 La. 483, 29 So. 239; Smalley v. Southern Ry. Co., 57 S.C. 243, 35 S.E. 489; Waldron v. Boston etc. R. R., 71 N.H. 362, 52 A. 443; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Ray on Negligence of Imposed Duties, p. 134; Elliott on Railroads, sec. 1258; 33 Cyc. 800.)

WALTERS, District Judge. Ailshie, C. J., and Sullivan, J., concur.

OPINION

WALTERS, District Judge.

--This action has been before this court heretofore on appeal and is reported in Neil v. Idaho & W. N. R. R. Co., 22 Idaho 74, 125 P. 331. The cause upon such former appeal was remanded for a new trial, and during which, upon the close of plaintiff's testimony, the defendant moved that plaintiff be nonsuited, which motion was by the trial court granted and judgment of such import duly entered.

Motion for new trial was made by the plaintiff and by the court denied, and thereupon plaintiff has prosecuted an appeal from the judgment of nonsuit and dismissal and from said order denying the motion for a new trial. The original plaintiff, Joseph Neil, died after the second trial and prior to this appeal, and J. T. Elder, administrator, was substituted as party plaintiff.

1. After the cause was by this court remanded for a new trial, and prior to the same, plaintiff sought permission, by motion upon two separate occasions to file an amended complaint, and at the time of trial sought permission by motion to file an amendment to the original complaint, which each of said motions for amendment was by the trial court refused, and the rulings of the trial court in such regard are urged by the appellant as error.

The original complaint alleged, and upon which the action was first tried, that on the morning of October 4, 1910, the plaintiff was employed by defendant as a freight train conductor; that upon said morning said plaintiff was walking upon a track running parallel with the track upon which the freight train of which he had charge was standing, and at said time was inspecting the brakes, rods and other appliances on his said train; that while plaintiff was so engaged a switch engine in charge of certain of defendant's employees was run and propelled over and upon said track upon which plaintiff was...

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