Mr. John S. Barbour for plaintiff in error.[ Washington Railway & Electric Co. v. Scala 244 U.S. 630 (1917) ]
[244 U.S. 630, 634] Messrs. Daniel W. O'Donoghue and Arthur A. Alexander for defendant in error.
Mr. Justice Clarke delivered the opinion of the court:
This case is before us on writ of error to the court of appeals for the District of Columbia, and we shall refer to the parties as they appeared in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant.
On July 8, 1913, the plaintiff's decedent was a conductor in the employ of the defendant, a common carrier of passengers by an electric railroad, with termini as hereinafter described, and when standing or moving along the 'running or stepping board' of an open summer car, in the evening, after dark, his body in some manner struck against one of the poles supporting the overhead wires and he was so injured that he died within an hour.
The negligence charged in the third and fourth counts of the declaration on which the case was tried is the placing of the poles so close to the track that the decedent did not have a reasonably safe place in which to discharge [244 U.S. 630, 637] the duties required of him, and the allegations of these counts bring the case within the Federal Employers' Liability Act, approved April 22, 1908 ( 35 Stat. at L. 65, chap. 149), as amended April 5, 1910 (36 Stat. at L. 291, chap. 143, Comp. Stat. 1916, 8662).
A motion by the defendant in error to dismiss the writ of error for want of jurisdiction and a petition filed by the plaintiff in error for a writ of certiorari, both of which were postponed to the hearing on the merits, are denied.
Coming to the merits of the case we are confronted with eighteen claims of error, which, however, resolve themselves into but three of substance sufficient to call for attention, viz.:
(1) That the defendant at the time of the accident was not a 'common carrier by railroad' within the meaning of the Federal Employers' Liability Act of April 22, 1908
(2) That the trial court erred in permitting the plaintiff to amend her declaration on the trial, after all the testimony had been introduced, and at a time more than two years after the accident had occurred, by inserting a claim for 'conscious pain and suffering' of the deceased.
This amendment, it is claimed, in effect allowed a recovery on a second and new cause of action after it was barred by the two years' limitation of the act.
(3) That the court erred in submitting the case to the jury, for the reason that no substantial evidence of engligence was introduced on the trial.
Four acts of Congress, the first providing for the incorporation of the defendant company and the other three amending the first, were introduced in evidence on the theory that they were private acts and otherwise would not be before this court.
With these acts and the evidence and admissions shown in the record before us, it is clear that the defendant was incorporated as, and at the time of the accident complained of was, a railway company, not a street railway [244 U.S. 630, 638] company; that it had full powers of eminent domain; that at the time of the accident complained of it owned and operated a line of electric railway extending from a terminus within the District of Columbia to a terminus at Cabin John creek, in the state of Maryland, a large part of the line being constructed on a private right of way, and that it was at that time a common carrier of passengers for hire between its termini.
It is argued that under the decision in Omaha & C. B. Street R. Co. v. Interstate Commerce Commission, 230 U.S. 324 , 57 L. ed. 1501, 46 L.R.A.(N. S.) 385, 33 Sup. Ct. Rep. 890, the railway of the defendant was a street railroad, and that therefore the defendant was not a 'common carrier by railroad' within the terms of the Act of 1908 as amended. That case dealt with a purely street railway in the streets of two cities, and the decision was that it was not a 'railroad' such as was intended to be placed under the jurisdiction of the Interstate Commerce Commission by the Interstate Commerce Act of 1887 [24 Stat. at L. 379, chap. 104, Comp. Stat. 1916, 8563]. The case is of negligible value in determining either the construction of the act we are considering in this case, or the classification of the defendant, which clearly enough is a suburban railroad common carrier of passengers within the scope of the Federal Employers' Liability Act, as is sufficiently decided by United States v. Baltimore & O. S. W. R. Co. 226 U.S. 14 , 57 L. ed. 104, 33 Sup. Ct. Rep. 5; Kansas City Western R. Co. v. McAdow, 240 U.S. 51 , 60 L. ed. 520, 36 Sup. Ct. Rep. 252, 11 N. C. C. A. 857; Spokane & I. E. R. Co. v. United States, 241 U.S. 344 , 60 L. ed. 1037, 36 Sup. Ct. Rep. 668; and Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497 , 60 L. ed. 1125, 36 Sup. Ct. Rep. 683, 12 N. C. C. A. 1083.
This first claim of error of the defendant must be denied.
Seven days before the case came on for trial, the court granted leave to the plaintiff, no objection being noted, to amend the fourth count of her declaration by adding the allegation that the injuries received by the deceased caused him to 'suffer intense pain.' After all of the evidence had been introduced on the trial, the [244 U.S. 630, 639] court, immediately before charging the jury, permitted the plaintiff to further amend the third and fourth counts of her declaration by adding to each the allegation that the negligence of the defendant resulted in 'conscious pain and suffering' to the deceased. To the allowing of this last amendment the defendant objected, and, the objection being overruled, excepted, and it thereupon answered the declaration as thus amended, pleading 'not guilty and the statute of limitations of two years.'
The death of plaintiff's decedent occurred on July 8, 1913. This amendment was allowed on October 29, 1915, and it is urged that the effect of it was to allow the plaintiff to recover upon a claim that the deceased endured 'conscious pain and suffering,' which would not have been allowed without the amendment, and that such claim was barred by the provision of the Employers' Liability Act, that no action shall be maintained under it unless commenced within two years from the time the cause of action accrued. Before this last amendment the third and fourth counts of the declaration stated a case of negligence plainly within the terms of the Employers' Liability Act, and claimed damages for the death of deceased from injuries which the prior amendment alleged caused him to 'suffer intense pain.' Under these two counts as they then stood, testimony was admitted, without objection, tending to prove that the deceased suffered pain during the comparatively short interval between the time he was injured and when he lapsed into the period of unconsciousness which preceded his death.
As we have seen, the fourth count, before the amendment objected to, alleged that the injuries received caused the deceased to suffer 'intense pain,' and the added allegation is that the injuries caused him 'conscious pain and suffering.' The difference between the two, if there is any difference at all, is too elusive for application in the practical administration of justice, and the claim that [244 U.S. 630, 640] this amendment added a new cause of action to the declaration is too fanciful for discussion. At most it was a slight elaboration of a probably sufficiently claimed element of damage, and the allowance of the amendment was well within the authority and the effect of Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570 , 57 L. ed. 355, 33 Sup. Ct. Rep. 135, Ann. Cas. 1914B, 134; Illinois Surety Co. v. United States, 240 U.S. 214 , 60 L. ed. 609, 36 Sup. Ct. Rep. 321; and Seaboard Air Line R. Co. v. Renn, 241 U.S. 290 , 60 L. ed. 1006, 36 Sup. Ct. Rep. 567.
A word will suffice for the claim remaining. The trolley pole against which plaintiff's decedent struck was shown to be considerably closer to the track than the other poles on the line, and it is sufficient to say that the trial and appellate courts both found that the maintaining of such pole so close to the track that a conductor could not safely discharge the duties required of him constituted evidence of negligence sufficient to justify submitting the case to the jury, and with this conclusion we cordially agree.
The record shows that the case was submitted to the jury in a comprehensive charge sufficiently favorable to the defendant, and the judgment of the Court of Appeals of the District of Columbia is affirmed.
The CHIEF JUSTICE did not take part in the consideration or decision of this case.