Opinion
December 3, 1930.
January 5, 1931.
Negligence — Railroads — Pleadings — Allegata and probata — Change of cause of action — Damages — Different measure.
1. In an action against a railroad company for injuries to a minor struck by a locomotive, there is a material variance between the allegata and probata, where the statement of claim avers that plaintiff was on the track or in close proximity to it without stating that she was a trespasser and that the engineer saw or should have seen plaintiff, but negligently ran her down, while the evidence showed that plaintiff was struck while lawfully upon a permissive public crossing. [325, 326]
2. In such case the measure of damages under the statement was merely to avoid wanton or wilful negligence, while under the facts as shown by the evidence it was increased to that of care in avoiding ordinary negligence. [327]
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SADLER, SCHAFFER and MAXEY, JJ.
Appeals, Nos. 323 and 324, Jan. T., 1930, by plaintiffs, from order of C. P. No. 2, Phila. Co., June T., 1926, No. 4924, discharging rule for leave to amend statement. Affirmed.
Trespass for injuries to minor. Before STERN, P. J.
Rule for leave to amend statement of claim.
The opinion of the Supreme Court states the facts.
Rule discharged in opinion by STERN, P. J., as follows:
The accident in this case occurred on July 6, 1925. The statute of limitations has therefore run against the claim, and the proposed amendment of the statement of claim cannot be allowed if it introduces a new cause of action.
The original statement was to the effect that the defendant railroad company was operating a train of freight cars eastwardly along the defendant's railroad track in the vicinity of Boston Avenue, Atlantic City, N.J.; that the minor plaintiff was on or in close proximity to the tracks at or near Boston Avenue, Atlantic City, when the defendant by its agent carelessly and negligently ran one of its trains into the minor plaintiff, causing the injuries for which suit is brought. The grounds of negligence are stated as being that the engineer of the train saw or should have seen that the plaintiff was on the track or in close proximity thereto in a position of danger; that no signal or warning of any kind was given as to the approach of the train while the plaintiff was present on or near the track and in a position of danger visible to the engineer; that the train was operated without it being first ascertained that it was safe to do so, and that it was so operated without due regard to the rights, safety and position of the minor plaintiff at the time of the accident.
The proposed amendment is to the effect that the defendant was operating a train of freight cars eastwardly along one of the tracks along Chelsea Station, which is located approximately 100 feet north of Boston Avenue; that Boston Avenue is a public highway in Atlantic City; that although the land for a considerable distance north of Boston Avenue was the private property of the defendant company, the latter had for many years permitted the general public to use said ground north of Boston Avenue, including the Chelsea Station platform at said point, for the general use of the public, so that the public walked over a stretch of private ground south of the railroad track at said point, thence over the Chelsea Station platform, and thence north for the purpose of said use; that by reason of said practice and the tacit permission and consent of the defendant company thereto, there had long existed from a point approximately 100 feet south of the railroad track at said point and over the Chelsea Station platform and for a considerable distance north thereof, all of which was private property of the defendant, a clearly defined path extending in width from the eastern to the western side of Boston Avenue, which path became known as a permissive crossing by the residents of Atlantic City. The proposed amendment further states that the minor plaintiff was standing on the Chelsea Station platform at a point on the permissive crossing aforesaid, and that, while she was in that position, a train of freight cars was run into her, causing the injuries for which suit is brought. Then follow the grounds of negligence substantially as set forth in the original statement.
It seems to the court that the effect of the amendment, if allowed, would be to introduce a new cause of action. The measure of liability on the part of the defendant company is entirely different in the one case from that which it is in the other. In the original pleading there is no categorical statement that the plaintiff was where she had any right to be or that she was other than a mere trespasser. It is merely stated that she was "on or in close proximity to the defendant's railroad tracks, at or near Boston Avenue." It is not alleged that she was actually on a crossing, either public, private or permissive. The duty of the defendants, therefore, was only to avoid wanton or wilful negligence. Indeed, the original statement of claim would have been demurrable because it charges merely ordinary negligence. The detailed allegations of negligence that the engineer saw or should have seen the plaintiff on the tracks, that he gave no signal of his approach, and that the train was operated without first ascertaining whether it was safe to do so and without due regard to the rights, safety and position of the plaintiff, make out, neither singly or collectively, a cause of action in the absence of facts indicating that the plaintiff was on a crossing, or at least was not on railroad property and was not a trespasser.
This defect is remedied in the amendment, because the object of the amendment is to place the minor plaintiff upon a permissive crossing. It is now stated that the minor plaintiff was standing on the defendant company's platform and that there was a permissive crossing which ran across the platform at that point. Under such circumstances the duty on the part of the defendant company is increased from the standard of merely avoiding wanton or wilful negligence to that of avoiding ordinary negligence. It thus appears that a cause of action is created by the amendment when none existed in the original statement. And, of course, if the original statement presented no cause of action and the amended statement does present a cause of action, it follows necessarily that the amendment introduces a new cause of action.
Even if the court is in error in its conclusion that the original statement of claim was demurrable, nevertheless, in the opinion of the court, the placing of the minor plaintiff upon a permissive right of way, with the change in liability on the part of the defendant thereby entailed, is so vital and fundamental as to constitute a new cause of action, and therefore is not to be allowed after the running of the statute of limitations.
Finally, it may be pointed out that, apart from all other considerations, the moving of the place of the accident from a point "at or near Boston Avenue" to a point on the Chelsea Station platform, which platform is stated to be approximately 100 feet north of Boston Avenue, is itself quite a considerable shifting of the place of the accident.
The court has therefore discharged the plaintiff's rule for leave to amend the statement of claim.
Plaintiffs appealed.
Error assigned, inter alia, was order, quoting record.
Robert M. Bernstein, with him Arthur M. Harrison, for appellants.
Owen J. Wister and Francis Biddle, of Barnes, Biddle Myers, for appellee, were not heard.
The order of the court below discharging plaintiffs' rule for leave to amend the statement of claim in this action is clearly correct, and the judgment entered thereon is affirmed on the opinion of the learned court below.
Judgment affirmed.