Thayer v. The Smoky Hollow Coal Co.
| Decision Date | 08 February 1906 |
| Citation | 105 N.W. 1024,129 Iowa 550 |
| Parties | C. F. THAYER v. THE SMOKY HOLLOW COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Monroe District Court.-- HON. C. W. VERMILLION, Judge.
APPEAL by defendant from rulings on a demurrer and motion to strike.-- Affirmed.
Affirmed.
Ryan Ryan & Ryan and Clarkson & Bates, for appellant.
N. E Kendall, for appellee.
The petition alleged in substance that the plaintiff, while passing along a cross-entry in a coal mine in quest of a car on October 15, 1900, was injured by the fall of slate from the roof, without fault on his part, owing to negligence of the defendant in "allowing and permitting said cross-entry K to become and remain in an unsafe and dangerous condition, and in failing and omitting properly to support the roof thereof with timbers or otherwise as required by law, rendering it reasonably secure against falls of slate." The answer put these allegations in issue, and on the former appeal we held that, in the absence of an allegation of negligence on the part of defendant in failing to make inspection of the roof or in not discovering defects therein, it was not to be inferred from evidence that slate will usually hang from three to six days after it begins to detach itself from the roof, that the slate in this roof would have hung that long after it begun to detach, and from this inference that defendant knew of the defect in time to repair and avoid the injury, and, for this reason, that there was not sufficient evidence to carry the case to the jury on that issue. 121 Iowa 121. Procedendo issued, and when the cause was redocketed in the district court December 16, 1903, the plaintiff filed a substituted petition. On April 15, 1904, the defendant interposed the plea of the statute of limitations by way of demurrer, and on the following day plaintiff withdrew his substituted petition and filed an amendment to the original petition, averring that defendant was negligent in omitting to properly inspect the roof, and that by the exercise of ordinary care it would have ascertained the condition of the roof in time to have repaired the same before the slate fell. This was filed more than two years subsequent to the accident, and defendant demurred to the amendment on the ground that it brought into the case a new cause of action, barred by the statute of limitations.
We do not think the additional allegations contained in the amendment alone constituted a cause of action. Even though there were a failure to properly inspect, and defendant had been chargeable with knowledge of the defect, these alone would not entitle plaintiff to recover. There must have been something more, as an omission to warn of the danger in making use of the entry or a negligent omission to repair before the accident occurred. But how could the defendant have been derelict in this if not charged with knowledge of the defective condition of the roof? This was necessarily involved in the negligence on which plaintiff grounded his cause of action stated in the original petition, and the only effect of the amendment was to amplify or more fully state this cause of action. As said in Kuhns v. Ry., 76 Iowa 67: Had there been a judgment rendered on the original petition, it would have been a bar to any recovery on the petition as amended, for in each instance the injury is alleged to have been the proximate result of the negligent omission to repair. This is generally regarded as a fair test of whether an amendment states a new cause of action. Van Patten v. Waugh, 122 Iowa 302 98 N.W. 119. As said in Hutchinson v. Ainsworth, 73 Cal. 452, (15 P. 82, 2 Am. St. Rep. 823:) "The...
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