Newberry v. Central of Georgia Ry. Co.

• Decision Date: 11 November 1921
• Docket Number: 3726.
• Parties: NEWBERRY v. CENTRAL OF GEORGIA RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

276 F. 337

NEWBERRY v. CENTRAL OF GEORGIA RY. CO.

No. 3726.

United States Court of Appeals, Fifth Circuit.

November 11, 1921

Washington Moody of Tuskaloosa, Ala., for plaintiff in error.

R. B Barnes and Jacob A. Walker, both of Opelika, Ala., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

The complaint of plaintiff in error alleges that on March 3 1917, 'defendant was engaged in operating a railroad in Tallapoosa county, Ala., and the plaintiff was on said date in the service or employment of the defendant as a station agent or telegraph operator at Slaughters,' in the said county, and was required to work in a car, the roof of which was out of repair, in consequence of which during a rain plaintiff in error became wet and was made sick, and his health permanently impaired. Negligence was also alleged for the failure to provide plaintiff in error with fuel. The case went to trial upon the plea of the general issue, with leave to give in evidence any special defense in accordance with the Alabama practice. The suit was brought in the state court, and removed to the federal District Court, because of diversity of citizenship. There was evidence to the effect that plaintiff in error had been employed as a telegraph operator by defendant in error for several years, and arrived at Slaughters after dark, and immediately took up his duties as telegraph operator; that the place provided for him to work was a box car; that it was raining when plaintiff in error arrived, the box car was leaking, the floor was wet, and the weather was cold; that although there was a stove in the car, there was no fuel; that plaintiff in error was a total stranger; that he did not know whether there was any other house near by, and that he remained all night thus exposed to the rain and to the cold; that, as a result of his remaining in the box car under the conditions which existed there, he suffered very serious impairment of health. The chief train dispatcher of defendant in error testified that he had charge of the operation of trains running between Columbus, Ga., and Birmingham, Ala., known as the Columbus Division, and that the trains operated over this division were engaged in interstate commerce, and that plaintiff in error at the time he became sick from the alleged exposure was dispatching trains from Columbus to Birmingham. Thereupon plaintiff in error asked leave to file an amendment to the complaint, but did not withdraw the original complaint. The amendment set up no new facts, but only alleged that plaintiff in error and defendant in error were engaged in interstate commerce. Upon objection the court below refused to allow the amendment, and entered judgment for defendant in error upon a verdict rendered in response to a peremptory instruction.

The court based its action upon the grounds: (1) That under the complaint as amended the cause could not have been removed from the state court; (2) that the amendment set up a new cause of action, which was barred by the statute limitations of two years prescribed by the federal Employers' Liability Act (Comp. St. Secs. 8657-8665); (3) and that plaintiff in error assumed the risk involved in using a leaking, wet, and cold box car as a telegraph office.

1. While it is true that, if the action had been brought in the state court, the case could not have been removed, yet plaintiff in error, because of diversity of citizenship, could have sued initially in the federal District Court. It is evident, therefore, that the court would not have lost jurisdiction of the case if the amendment had been allowed.

2. If the amendment stated a new cause of action, it was barred by section 6 of the federal Employers' Liability Act (section 8662), because the amendment was offered more than two years after the cause of action accrued. The same question was before the Supreme Court in Seaboard Air Line Railway v. Renn, 241 U.S. 290, 36 Sup.Ct. 567, 60 L.Ed. 1006, and it was there said:

'If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action and was not affected by the intervening lapse of time. * * * But, if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested.'

In that case the complaint alleged:

That the defendant was operating 'a line of railroad in Virginia, North Carolina, and elsewhere; that the plaintiff was in its employ; that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant's trains; and that the injury was sustained at Cochran, Va., through the defendant's negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition.'

It was held that the amendment did not allege a new cause of action, but merely expanded or amplified the original complaint. It was also pointed out in the cited case that the action was not based upon the laws of North Carolina, because the injury occurred in Virginia, and that the action was not based upon the laws of Virginia, because they were not pleaded; that the fact that it was alleged that the defendant operated its railroad in states other than Virginia was material only if the cause of action arose in interstate commerce, and therefore under the federal Employers' Liability Act. But these comments by the Supreme Court only go to show that it might be concluded that the railroad company was engaged in interstate commerce. However, under the terms of the act, it is inapplicable unless the employee is also 'employed by such carrier in such commerce. ' The allegation of the complaint in the Renn Case was thus construed as stating that the railroad company was an interstate carrier, but there is no allegation that it was engaged in interstate commerce at the time of the injury. By a similar expansion or amplification of the original complaint in the instant case there is as much basis for holding that plaintiff in error, at the time of his injury, was engaged in interstate commerce, in view of the allegation that he was a telegraph operator. The testimony of the train dispatcher that plaintiff in error was engaged in assisting in directing the movement of interstate trains, was to be expected. It is doubtful if the train dispatcher of any railroad company and the operators under him are not constantly engaged in directing the movement of passengers or freight in interstate commerce. In one case at least it has been held that courts will take judicial notice that a particular railroad company is engaged in interstate commerce. Dingman v. Railroad Co., 164 Mich. 328, 130 N.W. 24, 32 L.R.A.(N.S.) 1181. It is also stated in 15 R.C.L. 1119:

'As courts take judicial notice of the leading geographical features of the country, and as the locality of important lines of railroad, once established, become as fixed and permanent and as well known as any other

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