Hensley v. Chicago, St. Paul, Minneapolis & Omaha R. Company

• Court: Nebraska Supreme Court
• Writing for the Court: ROSE, J.
• Citation: Hensley v. Chicago, St. Paul, Minneapolis & Omaha R. Company, 254 N.W. 426, 126 Neb. 579 (Neb. 1934)
• Decision Date: 06 April 1934
• Docket Number: 29043
• Parties: STACY HENSLEY, APPELLANT, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, APPELLEE

254 N.W. 426

126 Neb. 579

STACY HENSLEY, APPELLANT, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, APPELLEE

No. 29043

Supreme Court of Nebraska

April 6, 1934

APPEAL from the district court for Dakota county: MARK J. RYAN JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. A material ruling by the supreme court on appeal, resulting in the reversal of a judgment, ordinarily becomes the law of the case in subsequent proceedings, including a second appeal.

2. An amendment of a petition after trial, judgment, appeal and reversal, if amounting to a departure from law to law and from fact to fact, thus introducing a new cause of action long since barred by the statute of limitations, is not allowable.

Appeal from District Court, Dakota County; Ryan, Judge.

Action by Stacy Hensley against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From an order overruling a motion to amend and dismissing the action, plaintiff appeals.

Affirmed.

Rosewater Mecham & Hasselquist and Donald S. Krause, for appellant.

Wymer Dressler, Robert D. Neely, Hugo J. Lutz and Paul S. Topping, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and MEYER, District Judge.

OPINION

ROSE, J.

This is an action to recover damages in the sum of $ 30,000 for personal injuries. Defendant is a common carrier operating a railroad and engaged in both interstate and intrastate commerce. Plaintiff was a section hand. While engaged in the line of his employment by defendant, unloading scrap iron from a flat-car onto a storage platform at Emerson, he stepped onto the wheel of a disappearing hand brake to look into an adjacent gondola car to see what tools would be needed in removing scrap iron therefrom. His weight suddenly forced the brake shaft downward through its sleeve until the brake wheel was flush with the floor of the flat-car. Plaintiff fell between the cars and was injured. He alleged in his petition that he got upon the brake wheel carefully with due regard to, and in line of, his duty "as prescribed by the defendant," and that defendant kept the brake wheel and all the parts on which it rested in a "careless, negligent, unsafe, loose, shaky and wabbly condition," and that by reason thereof he sustained the injuries of which he complains. He pleaded his case solely under the federal employers' liability act. Defendant denied that plaintiff was engaged in interstate commerce when injured. Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $ 14,000. From judgment therefor defendant appealed. Upon a review of the proceedings and judgment of the district court, the issues and evidence were fully considered, and it was held that plaintiff was not engaged in interstate commerce when injured and that therefore he was not entitled to recover damages under the federal employers' liability act. The judgment of the district court in favor of plaintiff was reversed and the cause remanded for further proceedings consistent with the opinion of the supreme court. The case as originally pleaded and tried and the law applicable thereto were explained at length in the former opinion, making further repetition in this preliminary statement unnecessary. See Hensley v. Chicago, St. P., M. & O. R. Co., 118 Neb. 690, 226 N.W. 421.

Long after the cause reappeared in the district court pursuant to the mandate of the supreme court, plaintiff moved to amend his petition on the ground that, as originally drawn, it permitted him to recover damages under both federal and state laws, independently of the federal employers' liability act. The motion to amend was overruled and the action dismissed. Plaintiff appealed.

Did the district court err in overruling the motion to amend the petition and in dismissing the action? Following is a chronology of events: September 28, 1923, plaintiff injured; April 27, 1925, action for damages commenced; March 20, 1926, judgment in favor of plaintiff for $ 14,000; July 2, 1929, reversal in supreme court; August 19, 1929, mandate issued; November 25, 1929, motion by defendant in district court to dismiss action; February 15, 1933, action dismissed; May 24, 1933, motion by plaintiff to vacate dismissal and amend petition; October 16, 1933, dismissal set aside and action again dismissed; November 7, 1933, appeal from dismissal taken to supreme court.

On the former appeal there was an adjudication that plaintiff did not prove a cause of action under the federal employers' liability act. It will be observed that the motion to amend the petition was made nine years after the accident and eight years after the action was commenced. It is clear, therefore that a cause of action under the federal safety appliance act or state laws, if first stated by an amendment of the petition, would be barred by the statute of limitations. One of the amendments offered by plaintiff, if allowed, would...