Gordon v. Chi., R. I. & P. Ry. Co.
| Citation | 106 N.W. 177,129 Iowa 747 |
| Court | Iowa Supreme Court |
| Decision Date | 16 February 1906 |
| Parties | GORDON v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; C. P. Holmes, Judge.
Action at law to recover damages for a personal injury. Judgment for defendant upon demurrer to petition. Plaintiff appeals. Reversed.Wm. G. Clark, for appellant.
Carroll Wright, for appellee.
The appellant was a brakeman in defendant's service, and at the time of his injury was employed upon a freight train operated over the defendant's road in Indian Territory. On the 20th of January, 1898, as the train was nearing the station at the town of Minco, the coupling between two of the cars accidentally separated without attracting the attention of the trainmen, and the forward section of the train moved on to the station, where a stop was made for water. While appellant, who had been riding on the engine, was assisting in drawing the water, the rear section of the train, moving down the grade, collided with the standing cars. In this collision appellant's leg was crushed, necessitating amputation. This action for damages on account of such injury was begun April 19, 1899. The original petition, with some amendments thereto, having been superseded, need not be more particularly referred to. On November 13, 1899, a substituted pleading was filed, alleging that appellant's said injury was caused by defendant's negligence. The charge of negligence was in a single count, but was based principally on two grounds, as follows: (1) That the defendant's road was negligently constructed, in that a sharp depression was made in the track so that freight trains passing over it were liable to become uncoupled, and that the danger thus created was greatly increased by operating such trains at that point at a high rate of speed, of all which defendant had notice; and (2) that frequent inspection of a freight train, and vigilance in keeping lookout to prevent accident and injury from the uncoupling of cars moving over a road so constructed, were necessary to maintain such train in condition to afford a reasonably safe place to work, and although, by defendant's rules, the conductor and engineer were required to see that this duty was performed, they negligently failed so to do. This pleading was followed, October 19, 1900, by another substitute, restating in substance the two grounds of negligence aforesaid, and further alleging that defendant negligently failed to provide or enforce rules limiting the speed of trains as was reasonably necessary at the place in question, and negligently equipped its train with a coupler so defectively made and devised as to be liable to become uncoupled when the train was passing over changes of grade in the roadbed. To parts of this petition defendant demurred as follows: (1) To the allegation of negligence on part of conductor, engineer, and trainmen, because such persons were the fellow servants of appellant, and defendant is not liable to him for injuries so received. (2) To the allegation as to a depression in the track, because the question whether the road should have been built on a different grade cannot be inquired into in this action, and it does not appear that such depression was the proximate cause of plaintiff's injury, nor does it appear that defendant or its employés had any knowledge that the train separated at said depression in the track. (3) To the allegation as to a defective device for coupling and the allegation as to failure to provide a rule or regulationlimiting the rate of train speed, because, in each instance, it appears from the petition that such alleged negligence was not the proximate cause of plaintiff's injury. Before the demurrer was ruled upon plaintiff filed an amendment to his substituted petition, alleging that defendant had negligently permitted its track at the place in question to become out of repair, rough, and uneven, with sudden and great inequalities; thus causing the uncoupling of the train on which plaintiff was employed. This amendment was also demurred to by defendant on the ground that it sets up a new and distinct ground of alleged negligence, and that plaintiff's right of action upon such ground is barred by the statute of limitations. The demurrers to the petition and to the amendment were each sustained; and, plaintiff declining further to amend and electing to stand on his pleadings as made, judgment was entered in favor of defendant for costs.
1. As we hold, for reasons hereinafter stated, that the amended and substituted petition states a good cause of action irrespective of the amendment, it is unnecessary for us to dwell particularly upon the question raised by the demurrer to the latter. It is conceded that, if an amendment made to a petition states a new and independent cause of action, it is to be treated as the commencement of a new suit, and, if the period of limitation upon such causes of action has intervened, the amendment is demurrable. Box v. Railroad Co., 107 Iowa, 660, 78 N. W. 694. If, however, the new matter pleaded does not state a new cause of action, but merely amplifies the charge made in the prior pleading, or states new grounds or specifications germane to such charges or allegations, the amendment may be upheld without regard to the statute of limitations. Kuhns v. Railroad Co., 76 Iowa, 67, 40 N. W. 92;Cobb v. Railroad Co., 38 Iowa, 627;Williamson v. Railroad Co., 84 Iowa, 583, 51 N. W. 60;Van Patten v. Waugh, 122 Iowa, 302, 98 N. W. 119; Thayer v. Coal Co. (decided at the present term of court) 105 N. W. 1024. The propriety and soundness of the rule is self-evident, and the only trouble to be found respecting it is in determining with accuracy in all cases whether a given amendment does, in fact, present a new cause of action, or is, at most, an amplification of the original pleading. In most cases the distinction is too apparent to cause hesitation in the mind of the court or lawyer, but others are of the border line class, and it is not always easy to distinguish between cases which the courts have placed on opposite sides of the line. For instance, the writer finds much difficulty in reconciling the application made of the rule to the facts in the Box Case with the application made in the Kuhn Case, but there is no inconsistency in the propositions of law affirmed in the two opinions. On the contrary, the court in the later case distinctly recognizes and accepts the former as authoritative, but finds that the new averments in the amendment then under consideration amounted to the statement of another cause of action. Various tests to determine whether the matter averred in an amendment does constitute a new cause of action have been suggested in the opinions hereinbefore cited, and to these we may add another, which suggests itself to us as one by which the true nature of the allegation may generally be developed. Our statute provides (Code, § 3559) that, where a petition includes more than one cause of action, each shall be stated in a separate count, which shall be complete in itself, and it is a matter of every day practice to require a pleader who fails to observe this provision and combines two or more causes in a single count to amend and state them separately. Now, if the plaintiff in the instant case in his original petition had alleged in a single count that the railway track was in an unsafe and dangerous condition by reason of a sharp depression or excessive unevenness or roughness therein, and that such condition was the result of the negligence of the defendant in the construction of the road and in failing to keep the same in repair, we think no one would contend that such an allegation would be objectionable as embracing two causes of action in one statement, and no court would sustain a motion to require the allegations as to negligence in construction and negligence in failure to repair to be stated in separate counts. Negligence in itself constitutes no cause of action. The cause of action which the present plaintiff asserts is an alleged personal injury, occasioned, as he claims, by a defective condition in defendant's railway track, which condition was produced or brought about by the defendant's negligence. Statement of the specific acts or facts constituting the alleged negligence by which injury has been occasioned is never necessary to the statement of a cause of action. Grinde v. Railroad Co., 42 Iowa, 376;Scott v. Hogan, 72 Iowa, 614, 34 N. W. 444; 14 Encyc. Pl. & Pr. 333. In other words, a petition which charges that an act was negligently done, to the plaintiff's injury, is not demurrable, but, as a matter of justice to the defendant, that he may be able to anticipate the nature of the evidence, he will be required to meet and to properly prepare his defense, the practice now prevails, at least in many cases, to require the plaintiff, upon motion of the defendant, to specify with reasonable precision the facts which he expects to prove in support of the ultimate alleged fact of negligence. This is, in a sense, as said by us in the Grinde Case, a pleading of the evidence rather than of the ultimate issuable facts, but is permissible in the interest of directness and certainty. If, therefore, the plaintiff had in this case alleged that defendant had negligently permitted a certain dangerous defect to be and remain in its roadbed, whereby plainti...
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