Opinion ok tiie court ry
JUDGE O’REAR
Affirming.
Charles Pointer, a fireman on one of appellant’s locomotives, was killed 17th March, 1899, in Lee county, Va., hv the wrecking of his train. A large rock, or quantity of rock and dirt, slipped from the side of a cut through which the railroad passed, and, not being discovered in time, the train ran into it. The train was derailed, and appellee’s intestate was scalded and otherwise injured by the overturning of the locomotive, from which injuries he died. On March 8, 1900, this suit was filed in the Whitley circuit court by his administrator to recover damages for his death, it being alleged that the accident was caused by the negligence of appellant, its agents and! servants', in failing to remove the stone and debris from the side of the cut in iime to have prevented the slip. It was charged that appellant knew, or by the exercise of ordinary care could have known, of the existence of the danger in time to have averted the accident. The answer denied the negligence charged, and alleged that, instead of being a mass of stone and dirt, there was but one stone that fell, and that appellant had no knowledge or notice of its dangerous condition in time to have prevented its falling, and could not have known it by the exercise of ordinary care. Later, but not within a year of the death of appellee’s intestate, appellee tendered an amended answer in which he admitted that there was but one stone that fell, instead of a large [957]*957mass of stone and dirt. He also charged for the first time that there was a statute of Virginia allowing a recovery for the death of one produced by the negligence of another. The statute was set out in luiec verba, and is as follows :
Code, section 2902. “Whenever the death of a person may be caused by the wrongful act, neglect or default of any person or corporation. . . . and the act. neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action . . . then, and in every such case the person who or corporation . . . which would have been liable if death had not ensued, shall be liable to an action for damages.”
Sec. 2903. “Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death. The jury in such action, may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased.”
Sec. 290á-. “The amount recovered in such action shall-after the payment of costs and reasonable attorneys'* fees be paid to the wife, husband, parent and child of the deceased, in -such proportion as the jury may have 'directed, or if they have not directed, according to the statute of distribution; and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law.”
Sec. 2557. “When any person shall be intestate as to his personal estate, or any part thereof, the surplus . . ,. [958]*958after payment of funeral expenses, charges of administra.tion and debts shall pass and be distributed to and among the same persons and in the same proportion, to whom and in which real estate is directed to descend.”
Sec. 2548. ‘-'When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary of such of his kindred male and female, as are not alien enemies, in the following course: First, to his children and their descendants; second, if there be no child, nor the descendant of any child, then to his father.”
To the filing of this amendment, appellant objected. The court, notwithstanding, permitted it to be filed. A demurrer to it was overruled. A demurrer was sustained to appellant’s plea of limitation of one year interposed in avoidance of it. ■ All these rulings raise but the one question, Was the amendment germane to the original cause of action sued on — therefore relating back to the time of the’filing of the original petition, so as to save-the running of the statute?
The position of appellant is that the original petition, showing affirmatively that the injury and death occurred beyond this State, and in the State of Virginia, and not stating or intimating that there existed in Virginia a statute allowing a recovery for death, stated no cause of action; that we must presume, in the absence of allegations to the contrary, that the common law, only, is in force in Virginia, where the negligent act and death are laid (Valz v. Bank, 96 Ky., 549 (16 R., 624) (29 S. W., 329) (49 Am. St. Rep., 306); the common law not allowing a recovery for the negligent injury of another resulting in instant death (Eden v. Railroad Co., 14 B. Mon., 204; Hansford’s [959]*959Adm’x v. Payne, 11 Bush., 380), and tlie statute of Kentucky allowing a recovery for such negligent act and consequent death can' not have any extraterritorial force, and can not, therefore, embrace an act occurring out of the State (Bruce’s Adm’r v. Railroad Co., 83 Ky., 174) (7 R., 59). It is the argument of appellant that an amendment can not be allowed to state for the first time a cause of action, under a statute by way of amendment to a cause of action sued on under the common law. Gregory v. Railway Co., 20 Mo. App., 448; Bolton v. Railway Co., 83 Ga., 659 (10 S. E., 352). The latter case is mainly relied on as an authority most clearly in point. It that case it was said: “Whenever a suit is commenced in this State, and the plaintiff relies for his right of action and his recovery upon a. foreign statute, he must plead said statute. If he pleads1 it defectively, or shows in some way that he relies-upon it, he will be entitled, under our Code, to amend by setting out the statute. ... If, however, he commences his action and relies upon his common-law right, we do not think he can amend his common-law declaration by setting out the statute,” etc. - We find ourselves unable to agree entirely with the learned Georgia supreme court. Aside from the criticism of this case in Maxw. Code PL, 579, that application of the rule as affecting amendments does not satisfy our conception of the spirit of code pleading, nor does it appear to be supported by other authority. It is truly said that, unless there was a statute allowing a recovery in this case, then no recovery could be had; for the common law allowed none. The cause of action, however, was not the statute, but the negligent act causing the death sued for. The proper parties appear. The one entitled in fact to bring this suit does so. The cause of the accident, the negligence, its result, and the pleader’s claim [960]*960for relief are all set forth. Each of these statements is equally with every other one essential to the right of recovery — neither less nor more so than the allegation of the existence of the Virginia statutes. If the injury had occurred in this State, of course, the statute need not have been pleaded. Rut foreign statutes conferring rights must be pleaded, as any other necessary fact upon which the recovery may be based. Valz v. Bank, supra; Templeton v. Sharp (10 R., 499) (9 S. W., 507, 696). The plaintiff was attempting to set forth in this petition his cause of action against appellant. Not a cause that did not exist (at common law), but the one that did exist, and that necessarily must have been based 'upon some statute. He alleged a number of essential facts, but omitted! one. By this amendment ho supplies the one omitted. This does not change ihe parties, nor the nature of the action, nor the cause of it. It merely perfects that which before was imperfect for lack of that averment. Such is the proper office of all amendments. A true lest whether they are germane io the original cause of action attempted to be set out is, would a recovery upon the original action have been a bar to a suit upon the one set out in the amendment? • .
Bu,t it is argued that, as no cause of action was stated in the petition, there was nothing to amend by. And as there was no cause of action stated till the amendment was filed, it was really the beginning of the suit, at which time limitation had become a bar. This much may be said in one sense, of all necessary amendments. A plaintiff will not be allowed to amend bis cause of action by changing it. The office of the amendment is to perfect or complete that which is begun, but is incomplete. “The Civil Code, with a view to a trial upon the merits and the attainment !of justice, .allows great liberality in this respect, and the lower [961]*961court should not be controlled in the exercise of- power unless it be manifestly abused.” Filbin’s Adm’r v. Railroad Co., 91 Ky., 446 (13 R., 14) (16 S. W., 92); Greer v. City of Covington, 83 Ky., 416 (7 R., 419). As to what will form a basis as a sufficient statement of the original cause of action, upon which perfecting amendments .will be allowed, the courts have had numerous instances before them. In Ellison v. Railroad Co., 87 Ga., 710 (13 S. E., 813), that” court has again passed upon this question. We construe this case as overruling Bolton v. Railway Co., 83 Ga., 659 (10 S. E., 352), the two being in conflict. In the case of 'Ellison the court undertook a more exhaustive review of the doctrine of amendments under the Code, and took occasion to say: “The case of Martin v. Railroad Co., 78 Ga., 307, is overruled, and so is any and every other case, in so far as the judgment of affirmance or reversal rests upon the construction herein reviewed and disapproved.” The court then proceeded to lay down the rule below, which is fairly and well stated: “There must be some trace of a particular cause of action in the declaration, in order that it may contain enough to amend by. . . . When a cause of action appears in a declaration, that, and that only, is the one which thé pleader is supposed to have designed. When none apears, the design is to be sought in the light of what is alleged in the declaration, compared with what is alleged in the proposed amendment. If the two sets of allegations harmonize so as to be, parts of one and the same sufficient design, and so as to fill out that design and render it as complete on paper as the law requires it to( be, the amendment is germane, and must be allowed. . . . The least amount of substance in a declaration, which will serve to show that what is offered to be added rightly belongs [962]*962there, is enough to amend by, if ■ the addition proposed would make the cause of action complete.” If the original and amended petition form the right of plaintiff to relief on different or inconsistent titles or grounds, or upon entirely inconsistent claims, arising out of different states of fact, the amendment would not be germane. The supreme court of New York, applying a Code provision al?nost identical with ours (section 134 Civil Code), in a case where the plaintiff had failed to set out a foreign statute giving the rignt of recovery, allowed an amendment pleading the statute. Lustig v. Railroad Co., 65 Hun., 547 (20 N. Y. Supp., 477). Also, see Chander v. Transfer Co. (City Ct. N. Y.), 13 N. Y. Hup., 573; also Davis v. Railroad Co., 110 N. Y., 646 (17 N. E., 733). Railway Co. v. Foster (Tenn. 1882) 11 Am. & Eng. R. Cas. (O. S.), 180, was a case involving, in one sense, this question. That' suit was in Tennessee. It developed that the accident had occurred in Alabama. Tlaintiff was allowed to amend and set up the statute of Alabama allowing the recovery. In that case the statutory period of limitation for bringing the action had ndt run when the amendmeht was tendereis. Counsel for appellant seeks to distinguish this case on that ground. We fail to perceive w'herein it is not authority. For the question is, is the amendment germane to the original cause of action? If it is, then the queston of limitation necessarily will be referred to the time of the “commencement of the action.” In Bank of Louisville v. Board of Trustees of Public Schools, 83 Ky., 219 (7 R., 185), the action was brought under a statute (the act of April, 1882) providing that certain deposits, where the depositors had not been heard of for eight years, and had not, exercised any act of ownership, over them, should es-cheat to the Commonwealth for the benefit of public, schools [963]*963of the city of Louisville. An amendment was allowed that sought to recover these deposits as escheats on a different statutory ground, viz., that the depositors had died without heirs or distributees. Tp the same effect, see Railroad Co. v. Case’s Adm’r, 9 Bush, 731.
We are of opinion that the amendment in the case at bar was germane to the original cause of action; that the filing of the petition, and issual of the summons thereon, was the commencement of this action (Code, section 39); and that the period of limitation fixed by the Virginia statute had not then run. The court’® ruling was proper, both as to filing the amendment, and sustaining the demurrer to the plea of limitation filed to it.
Appellant offered to file at the beginning of the trial an amended answer in which it averred that the accident was caused, not by the falling of one large rock, but by a slip in the side of the cut of a large mass of rock and dirt. The court refused to permit this amendment, and of that ruling appellant makes serious complaint. As has been srated, the accident occurred in Lee county, Va., and the trial was had in Whitley county, Kv., probably more than a hundred miles distant. Appellee, in the development of his- case, had taken the deposition of a dozen or more witnesses living in the vicinity where the accident occurred; this evidence constituting the bulk of appellee’s case. The evidence was taken upon the issue as then formed, and as it had stood for somé time. To allow its change at the beginning of the trial was to have practically destroyed the evidence taken on this point. At least, it would have necessarily resulted in a further postponement of the trial. In Eskridge’s Ex’rs v. Railway Co., 89 Ky., 367 (11 R., 557) (12 R. W., 580), in the original petition it was stated that the injury was caused by the neg[964]*964ligeni'O of those in charge of the south-bound accommodation train, but in the amended petition filed before answer it was stated to have been caused by the willful negligence of the servants of appellee in charge of the south-bound express train, which passed before the other; and one of the alleged errors was the refusal of the court to permit the plaintiff to file. a second amended petition, in which it was stated, as in the original, that the south-bound accommodation train caused the injury. The motion to file the last-named pleading was made after the jury was sworn and some witnesses had testified. The court overruled the motion, and this ruling was affirmed on appeal. The court used this language: “For, the issue having been made up and partly tried as to negligence of those in charge of the express train, it would have been obviously prejudicial to the defendant to allow it then changed.” It seems to us that the two cases are so nearly parallel In point of circumstance and reason that the one cited must be held conclusive of the proper practice in the one at bar. It would have been not only manifestly unjust to appellee to have allowed a change of the issue at that late date, but there is not a sufficient reason shown why appellant might not have accurately set out the facts either in its original an. swer or earlier. Its servants and agents in charge knew, as a matter of fact, and within a few Imurs of the occurrence, exactly whether it was a large mass of rock or the falling of a single rock that caused the wreck. And while it may not have been the fault of counsel that he was‘not earlier apprized of this true state of affairs, yet it necessarily was the fault of his client that he was not so apprised.
In the concluding argument to the jury, counsel for plaintiff read to the jury a statement published in a daily newspaper that within a day or two previous to the trial a jury [965]*965in another county in this State had rendered a verdict against the same' defendant for $15,000 for the death of a passenger — Mrs. Carothers. This conduct was objected to by appellant’s attorney. The court promptly reprimanded counsel making the argument, and explicitly charged the jury that it was improper, and that they should not coñsidcr it in forming their verdict in this case. While it may be true that there- might exist a state of case where such an improper digression by counsel in .the closing argument may have had its hurtful effect, and be beyond the power of the court to remedy by its cautioning charge, and that in such state.of case this court would not be authorized to speculate as to the probable effect of the improper matter, but would order a new’ trial (Coal Co. v. Sneddon, 98 Ky., 686 (17 R., 1261) 34. S. W., 228), yet wre do not regard such to have been the result, or even the probable result, in the case at bar. The verdict returned by the jury ($5,-■600) as compensation for the destruction of life and the power of the decedent to earn money (he being a young-man, about 22 years of age, in good l^ealth, and earning $60 or $75 per month) show's of itself that the jury wmre not improperly influenced, or influenced at all, by the matters referred to. The only improper effect of the newspaper article w’ould have been to incite the jury to have rendered an excessive verdict. The verdict in this case is not excessive, and it is not claimed to be. We fail to see that appellant wms prejudiced by the proceeding in question.
A part of the instruction given to the jury, of which complaint is made, is as.follow’s: “If you believe from the evidence that at the time the accident occurred, resulting in the death of Charles Pointer, said stone was unsafe, dangerous and liable to fall, and that the section foreman knew, [966]*966or by the exercise of a reasonable care and prudence in the iuspection of the cut could have known, that the same was in such dangerous aud unsafe .condition in time to have removed same before the injury to Pointer,” etc. The criticism of the instruction is that the court used the words “reasonable care” instead of “ordinary care.” In the argument counsel admits that the terms are, in law, practically synonymous. In their ordinary use, in connection with tlio subject in band, they are also substantially synonymous. It can not be that the jury could have been misled thereby t.o have found that the railroad company was required to use more than ordinary care because it was required to use reasonable care. Ordinary care is reasonable care. If ordinary care were less than reasonable care, it would lie rejected by the courts as the standard of conduct of those charged with the duty imposed upon appellant •as an operator of a steam railway, for the courts would not permit such a one to escape liability upon the exercise of less than what would be reasonable care toward those in its employ. The terms are used as synonymous or interchangeable in many of the cases. See cases collected 12 Am. <fc Eng. Ency. Law (2d Ed.), p. 912.
Another objection to the instructions is that they say to the jury, “if you find for the plaintiff; you may say iff your verdict what proportion of the sum so found shall go to the father or mother of the deceased.” . This instruction, of course, was predicated upon the Virginia statutes, supra, which provides that, in case of the intestacy of the decedent without wife or issue, the recovery should “be apportioned to the parent in such proportions as the jury may have directed.” Under section 2548 of the Virginia statute, supra, it was shown that if there was no child, nor the descendant of any child, Then the estate was to go' to his father. [967]*967Appellant insists that including the intestate’s mother in this instruction was improper and prejudicial, because it permitted the jury to consider her claims and possible necessities, etc., and that they likely did so in estimating their verdict. It should be noted, however, that the court restricted the jury, in the first place, that, if they found for appellee, they should “find for him such a sum in damages as you may believe from the evidence will fairly compensate him for the loss of the life of his intestate, Charles Pointer; and you may measure such damages by the ability of the deceased to earn money, taking into consideration' his age, physical condition, mental capacity and prospect of life, as they appeared in evidence, provided that the finding ■shall not exceed ten thousand dollars.” If the jury obeyed the instructions of the court, as It was their duty to do, and as they did, so far as anything in this record discloses, they were not at liberty to take into consideration the fact of decedent’s having a mother alive, or of her needs or requirements, in estimating the size of the verdict. But after the compensation had been agreed upon, as' defined by the instruction, then the jury were permitted by' the further instruction of the court to apportion the sum so found among certain persons, io-wit, the father and mother of the decedent. If this was error, it alfected the father alone, or possibly the funeral creditor of the deceased. As no objection comes from either of these sources, we can not see that appellant is prejudiced by the form of the instruction.
The remaining question for decision is upon appellant’s plea that under the laws of Virginia, where the accident occurred, aqd by which, of course, the recovery must be regulated, the deceased and section foreman or track repairer were fellow servants; that the law- of Virginia did [968]*968not allow one 'servant injured by the negligence of a fellow servant to recover therefor from the master. The following eases were used in evidence below, and are referred to, as embracing the law of Virginia upon that subject: Moon’s Adm’r v. Railroad Co., 78 Va., 745 (49 Am. Rep., 401); Railroad Co. v. Nuckol’s Adm’r, 91 Va., 193 (21. S. E., 342); Locomotive Works v. Ford, 94 Va., 627 (27 S. E., 509); Railroad Co. v. Houchins’ Adm'r, 95 Va., 399 (28 S. E., 578, 46 L. R. A., 359, 64 Am. St. Rep., 791); Coal Co. v. Wells, 96 Va., 416 (31 S. E., 614). The law upon this vexing ques-lion, a& it is applied in Virginia, according to the opinions .in the cases, supra, delivered by the supreme court of appeals of that State, is far more liberal to the master than obtains in this State and some other jurisdictions. It is, not our purpose, however, to enter upon a criticism or an analysis of the reasons' for this- distinction. It exists probably as much in policy as in principle. In the Moon case, 78 Va., 745 (49 Am. Rep., 401), a brakeman upon a train was injured by the negligence of a track repairer, in having the track in defective condition, so as to wreck the train. The brakeman was- allowed to recover. The court held that: “Where a person is placed in charge of the ‘construction or repair of machinery,’ or ‘dispatching of trains,’ the ‘maintenance of way,,’ etc., he is not a fellow servant with those under him, nor -with those'in a different department of the company’s service. He is the agent of the company, which has assumed, through him, the performance of duties which are absolute and imperative, the omission or the negligence of performing which the law will in no wise excuse.” In the Nuckol case, which seems to have been one thoroughly considered by the court, wherein it entered upon a re-examination of numerous previous decisions of that’ court bearing on this subject, Moon’s case, [969]*969supra., was approved, although the court was then inclined to the opinion that the former case should have been rested upon the negligence of the company in failing to provide a safe and suitable track, rather than upon the negligence of the track keeper in failing to give a signal to the approaching train. The Nuckol case was followed and approved in Ford's case, -9-1 Va., 027 (27 S. E., 509). Moon’s case, as interpreted in the opinion in Nuckol’s case, supra, was approved in the ITouchins.’ case, 95 Va., 399 (28 S. E., 578, 16 L. R. A.., 359, 64 Am. St. Rep., 791). The Virginia court does not seem to recognize degrees or grades of service in which servants may bo employed as affecting the master’s liability for their negligence to their fellow servants, but rests that liability upon the nature of the employment in which the servants may be engaged, without respect to their grade. In those matters wherein the duty was peremptorily that of the master, as, for example, furnishing safe machinery or appliances, and, in case of railway companies, safe roadways, and in maintaining same, that, court holds to the doctrine that these are the master’s duties, and can not be delegated, and that, when performed bv his servant, the servant so doing them is a vice principal, and for his neglect, from which an injury results to another servant of the master, the latter may recover from the principal. Such was the finding of the circuit court in this case as to the law of Virginia.
The verdict is fully sustained by the evidence and pleadings. Judgment affirmed, with damages.