Louisville & N.R. Co. v. Greenwell's Adm'r

• Decision Date: 18 November 1913
• Citation: 160 S.W. 479,155 Ky. 799
• Parties: LOUISVILLE & N. R. CO. v. GREENWELL'S ADM'R. [1]
• Court: Kentucky Court of Appeals

160 S.W. 479

155 Ky. 799

LOUISVILLE & N. R. CO. v. GREENWELL'S ADM'R. ^[1]

Court of Appeals of Kentucky.

November 18, 1913

Appeal from Circuit Court, Bullitt County.

Action by Thomas Greenwell's administrator against the Louisville & Nashville Railroad Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Chas Carroll and Benjamin D. Warfield, both of Louisville, for appellant.

Chapeze & Crawford, of Louisville, and J. F. Combs and J. R Zimmerman, both of Shepherdsville, for appellee.

NUNN J.

We have this case before us for the third time.Judgments for appellee have been twice reversed, as will be seen by reference to 144 Ky. 796, 139 S.W. 934, and125 S.W. 1054.Without attempting a history of this litigation, as it is completely set forth in the reports of former appeals, it will suffice to say that the action was brought to recover for the death of Thomas Greenwell, who was acting in the capacity of brakeman, and fell from a cut of cars that were being pushed by an engine into switch No. 4 in appellant's South Louisville yards.He fell in front of the cars and was run over and killed.The negligence of appellant complained of in the original petition was the unusual and unnecessary jerking of the train by which Greenwell was thrown from the car and killed.In both opinions, this court reversed the judgments of the lower court because it was held in these trials that the evidence showed no negligence upon the part of appellant, and that the only movement of the train was the ordinary jerking and bumping of the cars, and that from the very necessity of the case these movements of cars must always be accompanied by more or less jerking and bumping, and that those who accept employment as switchmen and brakemen, and whose duty requires them to be on and about the cars, being fully advised as to the risks incident to their employment, must be held to have assumed them.For these reasons it was adjudged that the lower court should have peremptorily instructed the jury to find for the appellant.

Upon the return of the case the second time, appellee filed three amended petitions, in which he sets up alternatively that decedent was thrown from the car either from the careless operation of the train as set out in the original petition or else "by reason of the dangerous and defective condition of said car and equipments thereto attached," and which condition was not known to decedent, but was, or could by the exercise of ordinary care have been, known by the defendant, and that said dangerous and defective condition of the car caused and brought about the death of decedent, or was a concurrent cause thereof.These amended petitions were not offered until almost four years after the accident happened.The lower court overruled appellant's objections to the filing of these amendments, and sustained demurrer to the plea of one-year statute of limitation, and the jury returned a verdict for $7,544 in favor of appellee.Appellant contends that the court erred in permitting plaintiff to file these amended petitions, and in sustaining demurrer to its plea of limitations thereto.

A litigant may set up as many different acts of negligence on which a cause of action is based as he feels his case warrants, and it would scarcely be contended that, had both these acts of alleged negligence been set up in the original petition, a valid objection could have been raised to that form of pleading.They are not inconsistent and are both germane to the cause of action.In the case of Ford v. Providence Coal Co.,124 Ky. 517, 99 S.W. 609, 30 Ky. Law Rep. 698, this court held: "The acts of negligence set out in the original and in the amended pleadings were not inconsistent, and might have been embraced in one pleading, as the pleader has the right to state as many acts of negligence growing out of the same transaction as the facts warrant, and, if either of them is sustained by evidence, a recovery may be had."

Appellant insists, however, that these amended petitions set up an entirely different cause of action from that of the original petition, and that, the amendment to it not having been filed for more than a year after the cause accrued, it came too late, and was therefore barred by the statute of limitation.

The effect of amendment on the running of statute of limitation is stated in section 613 of Newman's Pleading & Practice: "When an amendment to the petition is allowed and filed, if it introduce a new claim, or a different cause of action not before asserted, the defendant has a right to insist upon the statute of limitation until the time that the new claim is presented.If, however, the amendment is made only to perfect or complete a cause of action already set out defectively, it ordinarily relates back to the commencement of the action, which is the issuing of the first summons in good faith, and creates a lis pendens from that period as between the parties to the action."To apply this rule it will be necessary to ask and answer questions as to whether the amendments introduced a "new claim or a different cause of action not before asserted."

Clearly the cause of action is for the death of Thomas Greenwell occasioned by the negligence and wrongful act of appellant its agents and employés.The amendments and the original petition set up different acts of negligence which occasioned the death, but related to the same wrongful act and cause of action.This is not a new question in Kentucky.In the case of Smith v. Bogenschultz,19 S.W. 667, 20 S.W. 390, 14 Ky. Law Rep. 306, the same point was involved.The plaintiff was injured by molten iron poured upon him from the ladle of a colaborer, and the original action was predicated upon the theory that the defendant negligently provided a passway for these laborers carrying molten metal so narrow as to render it quite dangerous for these laborers to pass each other thereupon.A verdict for plaintiff was reversed, and the case remanded.84 Ky. 330, 1 S.W. 578, 8 Ky. Law Rep. 376.An amendment was then offered to be filed in which it was alleged that the ladle from which the metal was spilled upon him was not properly prepared, or baked, or dried for use, and was not safe, and was unfit and dangerous for use, and that this defective ladle was the cause of his injury.When this amendment was offered, more than one year had elapsed from the time the injury was inflicted.The lower court struck from the amended petition all that part of it relative to the defective ladle, and confined plaintiff to the issue as made on the first trial.This ruling of the lower court was on the theory that the amendment presented a different cause of action, and was therefore barred by limitation.This court disapproved that ruling and said: "The injury to the plaintiff was...