Summary
In Cox v. Wilkes-Barre Rwy. Corp., 334 Pa. 568, 6 A.2d 538, plaintiff's statement of claim charged that defendant was negligent in operating a car at reckless speed and in failure to have the car under control.
Summary of this case from Shenandoah Borough v. PhiladelphiaOpinion
April 12, 1939.
May 25, 1939.
Practice — Amendments — Cause of action — Statute of limitations — Negligence — Collision between trolley car and automobile — Negligence of motorman — Failure to maintain right of way.
1. In an action of trespass, in which plaintiff charged the defendant company with a violation of duty on the part of the motorman of the trolley car which collided with plaintiff's automobile, the violation of duty so charged consisting of (a) operating the car at reckless speed, (b) in approaching a street intersection without warning, and (c) failure to have the car under control; the court properly refused to allow plaintiff to amend her statement of claim by adding thereto, more than four years after the accident, an averment that defendant was negligent in failing to maintain, in reasonably safe condition, its right of way on the highway, by permitting deep and dangerous ruts to accumulate and remain thereon, making it unsafe for other vehicles to travel the highway. [569-70]
2. The phrase "cause of action" in a trespass case means the negligent act or acts which occasioned the injury. [570]
3. A plaintiff cannot amend his statement by introducing a new cause of action after the statute of limitations has run. [570]
Argued April 12, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and STERN, JJ.
Appeal, No. 130, Jan. T., 1939, from judgment of C. P. Luzerne Co., May T., 1934, No. 1092, in case of Myrtle Cox v. Wilkes-Barre Railway Corporation. Judgment affirmed.
Petition and rule by plaintiff to amend statement of claim.
The opinion of the Supreme Court states the facts.
Rule discharged, opinion by JONES, J. Plaintiff appealed.
Error assigned, among others, was refusal of motion to amend statement.
Thomas M. Lewis, with him Thomas F. Farrell, Jr. and M. F. McDonald, Jr., for appellant.
Evan C. Jones, with him Benjamin R. Jones, Jr., of Bedford, Waller, Jones Darling, for appellees.
This is an appeal from the refusal of the court below to permit plaintiff to amend her statement of claim in an action of tort by adding thereto, more than four years after the accident in question, the following: "In then and there failing and neglecting to maintain, in reasonably safe condition, its right-of-way on said highway, by permitting deep and dangerous ruts to accumulate and remain thereon, making it unsafe for other vehicles to travel said highway."
The statement sought to be amended charged the defendant company with a violation of duty on the part of the motorman of the trolley car which was in collision with plaintiff's automobile. The violation of duty so charged consisted of (a) operating the car at reckless speed; (b) in approaching a street intersection without warning; (c) failure to have the car under control.
It is clear that the proposed amendment introduced a new cause of action, to wit, defendant's failure to maintain its right of way in a reasonably safe condition. There is no difficulty in defining the phrase "cause of action." It obviously means what this court in Martin v. Pittsburgh Rys. Co., 227 Pa. 18, 75 A. 837, said it meant, to wit: "The negligent act or acts which occasioned the injury." According to plaintiff's original statement, the cause of action was the neglect of the motorman of the trolley car. According to the proposed amendment, the cause of action was the defendant company's neglect in respect to its right of way. These two alleged causes of action are distinct. The defense to the original cause of action pleaded would be irrelevant to the cause of action set forth in the proposed amendment. See Raskus v. Allegheny Valley Street Ry. Co., 302 Pa. 34, 153 A. 117.
It is elementary that after the Statute of Limitations has run a plaintiff cannot amend his statement by introducing a new cause of action: Mays v. United Natural Gas Co., 268 Pa. 325, 112 A. 22.
The judgment is affirmed.