Kuhns v. Wis., I. & N. Ry. Co.

• Decision Date: 26 October 1888
• Court: Iowa Supreme Court
• Parties: KUHNS v. WISCONSIN, I. & N. RY. CO.

76 Iowa 67

40 N.W. 92

KUHNS

v.WISCONSIN, I. & N. RY. CO.

Supreme Court of Iowa.

October 26, 1888.

Appeal from district court, Black Hawk county; D. J. LENEHAM, Judge.

Action by J. H. Kuhns, administrator of Edward C. Kuhns, deceased, against the Wisconsin, Iowa, & Nebraska Railway Company, for negligently causing the death of plaintiff's intestate by the derailment of a locomotive engine upon which he was a fireman, and in the employ of the defendant. There were several acts of negligence charged against the defendant, all of which were denied. A trial by jury resulted in a verdict and judgment for the plaintiff. Defendant appeals.Hubbard & Dawley, for appellant.

Boies, Husted & Boies, for appellee.

ROTHROCK, J., ( after stating facts substantially as above.)

1. This is an appeal from a second trial of the cause. A former trial resulted in a verdict and judgment for the plaintiff, which, upon appeal to this court, was reversed, and the cause remanded for a new trial. 70 Iowa, 561, 31 N. W. Rep. 868. At the first trial of the cause the negligence charged in the petition was (1) that the track was not properly ballasted; (2) that the rails were not properly spiked to the ties; (3) that the track was rough and uneven; (4) that defendant failed to furnish a suitable engine; (5) that defendant failed to furnish appliances for turning the engine; and (6) that the engine was running backward. After the cause was remanded for a new trial, the plaintiff amended his petition by averring that, at the time of the derailment of the engine, it was running at a dangerously high rate of speed, over an imperfectly constructed and rough and uneven road, and that one of the wheels of the tender of said engine dropped into a low and dangerous place in the road-bed, and said wheel was thereby broken; by reason of which the engine and tender were thrown from the track, and the deceased was thrown under the engine, and was so injured that he soon afterwards died. This amendment was demurred to on the ground that it was a new cause of action, and was barred by the statute of limitations. The demurrer was overruled. This ruling of the court is assigned as error, and a number of authorities are cited which it is claimed support the objection. We do not think the objection is well taken. We need not set out nor review the authorities relied on. In our opinion, they do not sustain the claim made by counsel. Of course, we concede that where an amendment sets up a new cause of action, not before presented by the petition, it would be vulnerable to the objection that it is barred by the statute of limitations. But in the case at bar the cause of action is for damages alleged to have accrued to the plaintiff by reason of the negligent derailment and turning over of an engine and tender. In the original petition certain acts of negligence are specified. In the amendment certain other specifications of negligence are pleaded. But the cause of action is the same. Indeed, so far as the depression in the track is involved, it is nothing more than a more specific statement of the averment in the original petition that the track was rough and uneven. We are very clearly of opinion that the statement of additional grounds of negligence is not a new cause of action. There is no departure from the original petition in the time, place, or circumstance of the casualty which caused the death of the intestate.

2. Upon the last trial the court, by its instructions to the jury, eliminated all of the charges of negligence from the case, excepting those enumerated in the seventh paragraph of the charge, which is as follows: “Therefore, gentlemen, your inquiry will be confined to the question whether or not there was a dangerous defect in the track or road-bed at the place where the engine was thrown from the track, and whether or not the defendant was guilty of negligence in permitting such a defect to remain in the track. Second. Whether or not the train was being run at a dangerous rate of speed, over a dangerous defect in the track, and whether or not the condition of the track at the place of the accident, or the speed of the train at that time and place, was the sole cause of the accident and injury complained of; and to entitle the plaintiff to recover in this action it is incumbent on him to establish, by a preponderance of the credible testimony, the negligence of the defendant, in one of these alleged particular acts or omissions, and that such particular negligence caused the injury complained of.” This instruction limited the negligence to the alleged dangerous defect in the track at the place where the accident occurred, and to the alleged dangerous rate of speed at which the engine was running at the time of the casualty; and the evidence in the case was directed to these two questions. The plaintiff introduced evidence tending to show that at the place where the wheels left the track there was a depression, in a joint on one side of the track, of from one and a half to two or three inches; and the theory was that, as the rail opposite was on a level, the dropping of the hind wheel of the tender into the depression caused a lurch of the tender sidewise, which broke the flange of the wheel; and that the wheel then climbed upon and over the rail, and caused the accident. The defendant denied that there was any appreciable depression in the track at or near the place of derailment, but admitted that the tender and engine left the track by reason of the breaking of the flange of the wheel; but said breakage was without the fault or negligence of the defendant, for the reason that it was caused by a latent defect or crack in the flange not discoverable by ordinary care and prudence in making an inspection of the wheel. Upon this last point the court instructed the jury as follows: “There is undisputed evidence before you tending to show that there was a latent...