Louisville & N.R. Co. v. Holmes

• Decision Date: 25 November 1920
• Docket Number: 8 Div. 271
• Citation: 87 So. 574,205 Ala. 47
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. HOLMES.

87 So. 574

205 Ala. 47

LOUISVILLE & N.R. CO. v. HOLMES.

8 Div. 271

Supreme Court of Alabama

November 25, 1920

Appeal from Circuit Court, Morgan County; F. Lloyd Tate, Judge.

Action by Mrs. Pearl F. Holmes against the Louisville & Nashville Railroad Company for damages for injuries while a passenger. Judgment for the plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

SAYRE J.

Appellee, suing as a passenger, recovered judgment against appellant on account of personal injuries alleged in her original complaint to have been inflicted by the negligent operation of one of appellant's trains at Albany, in Morgan county. More than a year after the commencement of the action plaintiff was allowed to amend her complaint so as to make it allege that her injuries were inflicted at Vinemont in Cullman county. Defendant opposed this amendment in every possible way; the ground of objection being that it introduced a new and distinct cause of action.

Plaintiff's cause of action--that is, the injury on account of which she sued--could not have happened at both places, but it is possible that she suffered from similar accidents at both and in the last-named event an action on one could not by amendment be converted into an action on the other. Under the statute of this state (section 5367 of the Code) amendments such as here proposed, amendments changing descriptive allegations of the complaint, must be allowed where the record itself does not clearly inform the trial court as to the identity or nonidentity of the new matter with the old, and any issue as to identity vel non must be submitted as an issue of fact to the jury, and so injustice to the party against whom the amendment is allowed will be avoided. Brown v. Loeb, 177 Ala. 106, 58 So. 330; Ala. Consolidated Coal & Iron Co. v. Heald, 154 Ala. 580, 45 So. 686.

There was no reversible error in refusing charge 2 requested by defendant. The charge was verbally inaccurate, as the brief for appellee, plaintiff, points out; but, apart from that, the measure of diligence necessary to be exercised by defendant in caring for the safety of its passengers was correctly stated to the jury in charges 3 and 7 given on its request, and while the language of the charge in question, apart from its mere verbal inaccuracy, was taken from the opinion in B.R., L. & P. Co. v. Barrett, 179 Ala. 274, 282, 60 So. 262, where it served to elucidate an antecedent definition of due diligence, without its antecedent context it tended to mislead the jury.

Charges 19 and 20, refused to defendant, omit the hypothesis of due care on the part of the conductor to ascertain whether passengers are getting on or off the train when h...