Louisville & N. R. Co. v. Roberts
| Decision Date | 26 February 1910 |
| Docket Number | 936. |
| Citation | 177 F. 922 |
| Parties | LOUISVILLE & N.R. CO. v. ROBERTS. |
| Court | U.S. Court of Appeals — Fourth Circuit |
At or near McKays Station, in Tennessee, on May 1, 1906, decedent Roberts, 18 years of age, and in the employ of the railroad company for some 3 months prior, was engaged with others under Lindsay, a section extra gang foreman, in constructing a second or additional viaduct under a certain fill or embankment, over which the track of the railroad and a public road ran side by side. To do this work required the digging of a trench across the fill something like 50 feet in length 4 to 5 feet in width, and 8 to 12 feet deep. When this trench had been dug some 6 to 8 feet deep, one of its sides caved in upon the deceased, injuring him to such extent that he died on the following day. At the November term, 1906, in the superior court of Cherokee county, N.C., the plaintiff below as administrator of the deceased, filed against the company his complaint, alleging substantially, such death to have been the result of its negligence in two particulars: First because Lindsay, charged to be its vice principal, directed this trench to be dug with its sides perpendicular instead of sloping, and without supporting the same in any proper way necessary to render them safe; second, because the company caused its trains to run along its track above the excavation, without giving warning and without properly supporting the sides of the fill. The cause by proper proceedings was removed to the Circuit Court of the United States for the Western District of North Carolina, wherein, on August 29, 1907, an answer was filed to the complaint by the company, in which all negligence is denied generally, and it is charged that, (a) if negligence was the cause of the injury and death, it was that of decedent's fellow servant; (b) that decedent assumed the rick of this employment; (c) negligently contributed to his injury and death; (d) was killed by accident which could not have been reasonably foreseen; and (e) that the injury and death occurred in Tennessee, and the right of recovery must be governed by the laws of that state. When the case was called for trial and before the jury was impaneled, the defendant moved the court to dismiss it, because, first, the complaint on its face showed that the deceased was killed in Tennessee where the alleged negligence occurred, but did not show or allege any statute of Tennessee authorizing any cause of action to recover therefor; and, second, because the facts set forth in the complaint did not constitute a cause of action. This motion was overruled and exception taken. Upon trial, before the plaintiff closed his evidence, the court permitted him to file an amendment to the fifth paragraph of his complaint involving slight verbal changes, and inserting the words 'intestate' and 'when it was negligent and unsafe so to do' and 'and causing same to cave in on' so that the complaint as amended would charge (amendments in italics) 'That while plaintiff's intestate was so at work, as aforesaid, and unsuspicious of danger, the defendant company negligently caused its train to run along its track above the excavation where said work was going on when it was negligent and unsafe so to do, thereby enhancing the danger of causing a cave-in, and causing same to cave in on (of) said fill without giving warning thereof,' etc. To this amendment the defendant objected, insisting that it presented a new and distinct cause of action, barred by the statute of limitation, which objection was overruled and exception taken. Thereupon, by leave of the court, the defendant filed an amendment to its answer, pleading thereby the statute of limitation. When the plaintiff had introduced his evidence and rested his case, the defendant moved the...
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