Kansas Pacific Rly. Co. v. Salmon

14 Kan. 512

• Court: Supreme Court of Kansas
• Decided: January 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This is the second time that this action has been brought to this court. (K. P. Rly. Co. v. Salmon, 11 Kas., 83.) When here first it was reversed, and sent back to the court below for a new trial. On being returned to that court the plaintiff below (Margaret Salmon) with leave of the court, but over the objections of the Railway Company, amended her petition. This is the first ruling of the court below now complained of as error. It is claimed that such ruling was erroneous, because the amendment, as is claimed, changed substantially the cause of action and defense. Stion 139 of the civil code reads as follows:

“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense. And when any proceeding fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” (Gen. Stat., 655.)

With the view that we have taken of the question now under consideration we do not think that it is necessary for us to determine whether the phrase, “when such amendment does not change substantially the claim or defense,” applies to and qualifies all that precedes it, or whether it merely applies to and qualifies the words, “or conform the pleading or proceeding to the facts proved.” That it does one or the other, seems to be evident; and yet, whichever way we view it, we are led into serious difficulties. It is certain however, as we think, that under said section any pleading may be amended by correcting any mistake therein, “ or by inserting other allegations material to the case, when such amendment does not change substantially the claim or defense.” In the present case we do not think that the amendment changes substantially the claim or defense. The action under the original petition was an. action brought by Margaret Salmon as administratrix of the estate of Daniel Salmon deceased against the Railway Company under § 422 of the civil code, (Gen. Stat., 709,) for damages resulting from the death of said Daniel, wrongfully caused by said Railway Company; and the action as now prosecuted, is still precisely the same. The parties are the same. .The action is still prosecuted by the same plaintiff, in the same capacity, against the same defendant, for wrongfully causing the death of the same person, at the same time and place, by the same means, and in the same manner. The amendment is simply this: The original petition stated that Salmon was killed by the Railway Company while being transported by the company as a passenger. The amended petition states that he was killed by the Railway Company while béing transported by them as an employe of the company. In all other respects the two petitions are alike. And as to the proof: Under the original petition the plaintiff had the right to prove that the death of Salmon was caused by the Railway Company through the negligence of any one or more of its servants, agents, or officers, superior or inferior. Under the amended petition the plaintiff had to show that the death was caused by the railway company through the negligence of some one or more of its superior agents, servants or officers. Under the amended petition, if the death had been caused merely through the negligence of some fellow-servant, some co-employe, then the plaintiff could not recover. (Dow v. K. P. Rly. Co., 8 Kas., 642; U. P. Rly. Co. v. Milliken, 8 Kas., 647; K. P. Rly. Co. v. Salmon, 11 Kas., 83.) These are the only differences required in the proof. The amended petition simply restricts the plaintiff’s right to recover by making it necessary for her to show that the death was caused through the negligence of some superior officer, agent or servant of the company, instead of allowing her to show that it was caused through the negligence of any officer, agent, or servant of the company, superior or inferior, as the original petition did.

But suppose the amended petition has made such a change that the negligence required to be proved under it is the negligence of an entirely different set of officers, agents or servants, from that required by the original petition, and still such a change does not necessarily change the cause of action or defense. It is not the officers, agents or servants of the company that are sued; and it is not their negligence as such of which the plaintiff complains. But it is the railway company that is sued, and the negligence of the railway company (through its officers, agents or servants,) of which the plaintiff complains. It can certainly make but very little difference whether the railway company was guilty of negligence through one set of employes, or through some other set, for if the company was guilty of negligence at all it is liable for the same kind and character and amount of damages in one case as in the other; and in either ease it devolves upon the plaintiff to show the negligence. The substantial question in the case is, whether the company was guilty of negligence at all; and this was sufficiently charged in either petition.

2. Material amendment may be made. But it is said that the contract under which a passenger is carried differs widely from the contract under which an employe is carried, and therefore, that as the original petition alleged that Salmon was carried as a passenger, while the amended petition alleges that he was carried merely as an employe of the company, the cause of action must necessarily have been changed. This need not necessarily be so. In neither case would the obligation of the railway to carry Salmon safely rest wholly or even mainly upon the contract between the parties; but in each case it would rest principally upon the laws of the state. But wherever it might rest, this action was not brought for any breach of contract. The action is not founded upon contract at all. It is more in the nature of an action of tort. It is an action for damages, resulting from a neglect on the part of the railway company to perform a duty imposed upon it by law. It is true, the contract may be shown. Indeed, it must be shown — not for the purpose of recovering for a breach of the contract however, but incidentally for the purpose of showing the status of the parties with relation to each other — of showing the legal obligations resting upon each with respect to the other, and of determining whether either has been guilty of negligence or wrong toward the other. And whether Salmon was a passenger, or an employe, the contract between him and the company must thus be incidentally shown merely for such purpose. The legal obligation resting upon railway companies to exercise care and diligence toward their employes does not differ so very much from the legal obligation resting upon them to exercise care and diligence toward their passengers, except in extent. It is the duty of a railway company toward both passengers and employes to see that all its officers, agents and servants, of whatever grade, who have the power from the company to employ, retain, or discharge other employes, or who have the power from the company to furnish implements, machinery or materials to the other employes, for them to operate with, shall exercise reasonable care and diligence in furnishing a sufficient number of competent employes for the work to be done, and in furnishing a sufficient number and amount-of proper implements, machinery and materials for the employes to operate with in accomplishing such work. And the company is liable to either passengers or employes for any injury resulting to them from any want of care or diligence in these respects. Laning v. N. Y. C. Rld. Co., 49 N. Y., 521; Flike v. Boston & Alleghany Rld. Co., 53 N. Y., 549. (The latter case is very much like the case at bar.) These officers, agents or servants of the company, upon whom such powers are bestowed, are what we would designate as the higher or superior officers, agents or servants of the company. And these higher officers, agents or servants cannot with any degree of propriety be termed fellow-servants with the other employes who do not possess any such extensive powers, and who have no choice but to obey such superior officers, agents or servants. Such higher officers, agents or servants must be deemed in all cases, when they act within the scope of their authority, to act for their principal, in the place of their principal, and in fact to be the principal. We also think that it is the duty of a railway company, with reference to both passengers and employes, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid danger from collision or from any other source. (Shearman and Redñeld on Neg., § 93, and cases there cited.) And a railway company is also responsible for the negligence of its higher or superior officers, agents and servants, even to other employes, when they act within the scope of their authority. Thus far the duty of the railway company toward its passengers and employes is about the same, and here the similarity of duty probably ends. The duty toward employes here stops, while the duty toward passengers extends further. A railway company is not responsible to one employe for the negligence of another employe where they are both engaged in the same common employment. But a railway company is always responsible to a passenger for the negligence of any employe. The grade of the employe within the particular employment does not generally make much difference. If the employe performs the duties of one of the higher officers, agents or servants, of which we have already spoken, the company is generally responsible for his negligence, whatever may be his grade. But if he is engaged in the same common employment with other employes, the company is generally not responsible for his negligence to the other employes, although he may be in fact the foreman for that particular work. The main issue in the present case is, whether the. railway company was guilty of negligence or not toward Salmon. And whether Salmon was a passenger, or merely an employe, is a question of fact brought into the case merely for the purpose of showing the status of Salmon toward the company, and thereby of showing whether the things charged against the company amount to negligence or not, and if they do amount to negligence, its nature and character. The fact of Salmon being a passenger, or an employe, is not the cause of action, or the foundation for the cause of action. The negligence of the company, whereby the iniury occurred, may more properly termed tne foundation of the cause of action. The fact of Salmon being a passenger, or an employe, is simply one of the facts, which enter into the description of the cause of action. It of course is a material fact. The allegation in the petition which sets it forth is a material allegation. But said § 139 of the code authorizes a pleading to be amended “by inserting other allegations material to the case.” Immaterial amendments need not be made at all, and every material amendment of a petition must of necessity change more or less the nature of the cause of action. But if the amendment does not change the cause of action, or the defense, from one thing to another, we think it may be made. That material amendments may be made, where the amendments are merely of facts descriptive of the cause of action, and do not change the cause of action from one thing to another, we would refer to the following authorities: Prater v. Snead, 12 Kas., 447, 449, and cases there* cited; Spice v. Steinruck, 14 Ohio St., 213; Knapp v. Hartung, 73 Penn. St., 290. If the plaintiff should state a cause of action in a petition, and the defendant should take issue upon one of the facts only stated therein, then whether the plaintiff could so amend his petition as to abandon that fact and set up an entirely new and distinct fact, and thereby wholly change the issue, we are not called upon to decide, as such question is not in this case. In this case the defendant filed a general denial to the plaintiff’s petition, denying every fact alleged by the plaintiff. Before passing from this subject it is proper to say, that the power of trial courts to allow or refuse amendments to pleadings, rests to some extent within the sound judicial discretion of such courts; and that appellate courts will seldom reverse the rulings of the trial courts in such cases unless such discretion has been abused. Therefore a decision of an appellate court, sustaining the ruling of a trial court, where the amendment has been refused, is but very little evidence that the appellate court would reverse the ruling of the trial court if the amendment had been allowed.

3, Evidence; personal attention of president of road, etc.; competency. , -4. Incompetency an!conn-eer auctor. We have now disposed of the main question involved in this case; and in discussing it we have discussed some of the other questions propounded by counsel. The questions which we have already discussed we shall not again refer to; and those which we have not yet discussed we shall merely decide, without discussing them in detail. It was not error for the court below to allow evidence to be introduced which tended to show that the president and directors of the railway company resided in other states, a long way from the railroad, and that they gave but very little personal attention to the operating of the road. The witness Brownhill was so obviously a “fast witness,” that we suppose the jury knew it, and that they gave to his testimony only such credit as it was properly entitled to. We think however that his testimony sufficiently showed him to be such an expert that the court below did not err in permitting it to go to the jury, and be weighed by them along with the. other evidence in the case, for what it was worth; although it afterward appeared that he testified concerning some things as though he had knowledge of them, when in fact he had no knowledge of them whatever. A small portion of his testimony was stricken out, on motion of the railway company. But there was no motion made to strike out any other portion of his testimony, after it became apparent that it was incompetent. It was not error for the court below to permit evidence to be introduced tending to show incompetency on the part of the conductors or engineers operating the colliding trains; as such evidence along with other evidence tending to show that the collision occurred from such incompetence, and that the railway company was aware of such incompetence, would be strong evidence against the company. As to the order in which the various portions of the evidence should be introduced, where it takes various and distinct portions of evidence to prove any particular fact in issue, the trial court is clothed with a very large discretion.

5. Contributory negligence, is a question of fact. Whether Salmon was guilty of contributory negligence or not was a question of fact properly submitted to the jury for their consideration. And the finding thereon by the jury that “The death of said Daniel Salmon was caused by the gross negligence of the defendant without any fault of the said Daniel Salmon,” was a sufficient finding with regard to said fact. It is substantially a finding of the affirmative fact that Salmon during the whole transaction exercised due care and diligence to protect himself from injury, and to do his duty toward the railway company. It is not an uncommon thing for adverse counsel to characterize a broad and comprehensive statement of a fact, or perhaps what might more properly be termed a simple but comprehensive statement of a compound fact, as a conclusion from facts, a conclusion of law, or a conclusion from facts and of law, forgetting of course that every fact that comes within our comprehension, however simple and diminutive it may be, must be composed of a vast number of other facts more simple and more diminutive. There can probably be no such thing as an. ultimate fact, or an absolutely simple fact. All are compounded of other facts. And the division of facts into smaller facts is philosophically as. illimitable as the division of time or space into smaller portions. It takes events to make facts; and events must occur within time and space, and must therefore be equally divisible with time and space. As to the extent of the detail with which the statement of any particular fact must be governed, the trial court must always be vested with a very broad and extended discretion. More detail is probably required in the statement of facts in the introduction of evidence than anywhere else in judicial proceedings. The whole of the 6th instruction asked for by the railway company, and refused by the court, was substantially given in other instructions. The 9th instruction asked for by the defendant, and refused by the court, is not, as there asked, good law for this case. It attempted to make the court upon a single fact find that Salmon was guilty of contributory negligence, and withdraw the question from the jury, while this single fact could not conclusively prove contributory negligence, and there were other facts that should have been taken into consideration along with it. The court properly instructed the jury that the plaintiff could not recover if Salmon was guilty of contributory negligence. If the court below erred as to what should constitute the measure of damages, it was the fault of the railway company. The court adopted the theory of damages suggested by the railway company, and whether right or wrong we shall not now reverse the judgment of the court below because of any supposed error committed by it with regard to the measure of damages.

6. verdict; approved by trial court. This case was very fairly tried in the court below, so far as the judge had anything to do with it, except possibly that he ought to have granted a new trial because the verdict of the jury was not sustained by sufficient evidence. The jury made the principal mistake that was made in the case, in finding a verdict for the plaintiff against the weight or preponderance of the evidence. The verdict ought probably to have been, set aside by the court below, and a new trial granted for this reason. But as the court below sustained the verdict, and rendered judgment thereon, thereby presumptively approving the verdict; and as there was evidence to sustain the verdict in every essential particular, we cannot now reverse the judgment merely because the verdict does not seem to be sustained by sufficient evidence. Numerous decisions of this court may be found laying down this doctrine.

The judgment of the court below is affirmed.

All the Justices concurring.