Kansas City Southern Ry. Co. v. Leslie
Decision Date | 23 October 1916 |
Docket Number | (No. 216.) |
Parties | KANSAS CITY SOUTHERN RY. CO. v. LESLIE. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Little River County; Jeff. T. Cowling, Judge.
Action by Sam E. Leslie, administrator of Leslie A. Old, deceased, against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Jas. B. McDonough, of Ft. Smith, for appellant. W. P. Feazel, of Nashville, for appellee.
This is the second appearance of this case in this court, it having heretofore been appealed from the judgment rendered against the railway company and affirmed by an opinion in 112 Ark. 306, 167 S. W. 83, Ann. Cas. 1915B, 834, where a sufficient statement of it appears. It was taken on a writ of error to the Supreme Court of the United States, where the judgment was reversed for error in the giving of instruction No. 10, and remanded for further proceedings. 238 U. S. 599, 35 Sup. Ct. 844, 59 L. Ed. 1478. That court in its opinion said, "Three substantial assignments of error demand consideration," and after reviewing and deciding that said assignments 1 and 2 were without merit, sustained the third assignment relative to the rule for the measure of damages recoverable, and reversed the case for the giving of said instruction No. 10.
Upon the trial anew, virtually the same testimony was introduced; the error indicated being avoided by another instruction, and from the judgment recovered against it, the railway company prosecutes this appeal, stating in its brief:
Many errors are assigned which we do not consider because of their having been determined adversely in the former decision to appellant's contention.
It is insisted now that the court erred in permitting the amendment of the complaint by appellant in giving instruction No. 10 on the measure of damages, and in allowing an improper argument by appellee's counsel. At the conclusion of the introduction of appellee's testimony, appellant moved the court to require him to elect upon which allegation of negligence he relied for recovery, and thereupon he amended his complaint by leave of the court, by adding to the allegations of the second paragraph:
"That all the acts of negligence hereinbefore complained of, either concurring or single, were the approximate cause of defendant's fall, injury, and death."
It is not shown wherein any prejudice resulted by permitting this amendment, it not being claimed that appellant was surprised thereby or did not have all of its witnesses available to meet and refute the allegations of the complaint. The court has large discretion in granting or permitting amendments of the pleadings, which will not be controlled unless it is shown that its discretion has been clearly abused, which is in no wise apparent here. American Bond Co. v. Morris, 104 Ark. 276, 148 S. W. 519.
The instruction complained of (No. 10) reads as follows:
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