'760 :1li#f,'ijumbers, ,and assuming' the extr" hazards thereby inrailrol\dcompallies bound to take prerisks they have imllosed on. the thus lDvlted. What, would constltute ordmary care m taken for a crowd of 5,000 might not be ordinary the crowd numbered ,The traveler, as one of 10,isentiUe<ito the o( care that is due to him as oneOfq,POO. If the, which the 10,000 passenits rOa9cannot give to }hem this proper measure ot an injury thereOy..follQws, it is responsible. It cannot invite and' passengers than its capacity justifies, itself by claim,ing an unprecedented crowd, and that to the,pa§sengers in its depot was used. For these reasons disturb verdict as found by the be overruleq, l\n<ljudgment entered.
'fqr
SA<IITR q,. MISSOURI' P'A'd. Ry. 1.1,'"'
Co.
.(CwcUiU CO'I:.rt. W.D.MJB8oUri,W; D. ,Karch 7,'1899.) ,
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Where; in an action agaiDsta railroad company for the death of an emc i;>rlglnQJ. pe.titionproceeus entirely on the gl'ound of the company's negligencl'l in, el;ll.ploying an engineer ot knol,Vn ,illcomvewnce, an amendment which claim's on 'th'e',ground of the engineet's n6'gUgence merely, introduces a new cause of action, and does not relate back to the. ,filing of the original petition, so as to eSCl!ope par of theone-year limitation prt;llcribed by Rev. Mo. § 4429.
At!4w. rA¢tion by Kate.Sl1lith againet Pacific way Compa.i)i for damages for ca\lsing the d.eath of her husband. Hgarq.oll .to the,nmended petition. Overruled as to the_first COllnt, aato the second. ' i Hager'lnan, for plaintiff. ;The original ,petition was founded on the second section of the damage a<:t. bein.g section 4425. &e\'. St,ModS89. The cause of action stated in the secondcln)nt the petition is, tpe Same cause of actlon as that stated in thefirst cOllnt, beiIlg the killing,of the husband of tbe plaintiff through the t!6gligence' Of the servant of the defendantin running and managing its locomotive erigi'ne·. Both counts of petition are founded on the same section of the statlltElj' the measure of damages being the same in each. It is not the substitution of another and new cause of action, but an amendment. v, ftla8ner.79 Mo. 449, Judge PHILIPS, in delivering the opinion of the court\slloYs: "Two.,tests.by whjch we determine whether a second petition or a ,of a new ca4se of action are: (1) That the both petitions; (Z) that the same measureof damages will apply to both. If both of these fail, the pleading is not an amendment"'! See. also, Lottman v. Barnett, 62 Mo. 159; (}oU1'ley v. Railw4yaO., 30 Mo· .App.: 87; Land Co. v. Mingea, {Ala.) 7 Soutb. Rep. 666; Kuhm v. Railway Co., 76 Iowa, 67.40 N. W. Rep. 92: Dougherty v. Rail-
SMITH V. ¥ISSOURI
road 00., 647, 654, 655, 11 S. W. Rep. 251; DaDls v. Railroad (Jo.· 110 N. Y.646, 17N. E. Rep. 733; Railroad v. Denson, (Ga.) E. Rep. 788; Railroad 00. v. Kitchens, Id. 827; Ha·rris v. Railroad, 78 Ga. 525, S S. E. Rep. 355; Oat·michaelv. Dolen. 25 Neb. 335, 41 N. W. Rep.U8; Oit1l of Bradford v. Downs, (Pa. Sup.) 17 Atl. Rep. 884; Bailway 00. v. DaDidBon, (Tex. Sup.) 4 S. W. Rep. 636; Railway Co. v. Vhapman, (Ala.) 3 South. Rep. 813; Silver v. Railway 00., 21 Mo. App. 5, as explained in Sims v. Field, 24 Mo. App. 557, 567. Elijah Robinson,for defendant. PHILIPS, District Judge. The amended petition herein is demurred to on the ground, principally, that the cause of action is barred by the one-year limitation prescribed by section 4429, Rev. St. Mo. It raises the question as to whether or not the new matter set out in the amended petition is in the nature of a continuation of the original cause of action, stated merely in different form,or whether it, i.n effect, states a new and different ground of recovery. As the injury occurred in 1881, and the am.ended petition was not filed until 1889, the action would be .barred,if t4e amended petition in fact presents a new cause ofaction. This is. conceded ... The gravamen of the original cause of action is the imputed .negligence of the defendant railroad company in taking and retaining in its employ a servant of known inexperience and incompetency. The .injury is charged to have resulted from this ntlgligent act. It is furthermore quite apparent that the framer of the petition, first. drawnjn in mind the fact that under section 4425, Rev. St. Mo. ,.on which cause of action is based, it had been ruled by the supreme court (Proctpr v. Railroad .co., 64 Mo. 112) that a railroad company was not liable for the death af an employe resulting from the negligent act of a fellow servant, unless the company was chargeable with negligence in employing ap unskilled and incompetent servant, from whose act the injury ensued, or; was negligent in providing insufficient machinery and .the like. .Hence the pleader. pro.ceeded upon the theory that injured party was a fellow servant, and that the company WI;lfl ,guilty of culpable negligence in employing an incompetent by negligent a.ct the death .occurred. Under the Qriginal petiti()n de-volved on the plaintiff, in order to a recovery, to establish by evidence the two facts: First, that the engineer in charge of the train was unskille4 and incompetent, and that this fact was known to the defendant at the time of the injury, or might have been known to it by theexercise of due diligenctlj and, second, that the injury was traceable to this incompetency. McDermott v. Railroad Co., 30 Mo. 115. So far as the first count of the amended petition is concerned, it may be conceded, to plaintiff's contention, that it but states the same cause of action relied on in the original petition, by a simple variation in the averments, with others sui generiB, affecting the demand already in issue; and therefore the new matter has relation back to t4e time of filing the original suit, and is no more amenable to the plea oftb,e statute of limitations than was the original action brought within the year. ,J!uel v.Tra'f}8je:r Co., 45 Mo. 563.
'in It omi.ts petition. and >thatl 0(. the first co,untof the the amended. 'toincOlnpel6ooy ,of; the engineer,,' but proceeds tipon,'the'iheol'ytbat theinjured'perionwas not a fellow servant of the person doing the injury, and that the death resulted solely from the want of due and proper care and vigilance ,by the engineer. Had the to ?riginal action would have wboT}:f'ffliled, wi1hotit'lpmo'f 'of'tb:e 'two fal:lts,-'-that the engineerwaa an uHskillEi'drur the management of the at ,the Mi, tM this. fact 'was known to the OOlrl ,: or have J been' known to it by the exercise of such proof, and made out a '.the !defendant bel' acti()n by satisfae·tMlt either thUtheengineer wall :a"person of tecogaliWa:n:d that thl" defendaht inemt>l(»'ing him had evefyiteasonable exertion to ascertain his fitiless, ahd was satisfied theteOt',: berore . with the' 'of its locomotive; the amen'dedpetit1on, bUl'denis' assumed by the fltness of''the engineer for the duty imposed upOllihHnbyllhedeferil!anf, itndshiftstFte ground'ofcolitest to that ofthe want"6f;UuEHlareandVigil.hnce on the'part of the engineer in managing and,tt1nnftlghis locomotive. but she attempts by this aruendt1leh" to'escape the itnplied'ooncession oftlie original petition that was at thetinle -6f,'the injury servant-a cothe engineer. ThusiHs''lipparent that the' issues are maThe defendant must 'l'earrangeits lines of defense; whichun'der ithe:orighllil ,petitionw()uldhave been quite it, would' beoftloa.vliil. under the iSsuespresenttid UT:ldt#l iatUetlded' petition. does 'seelil to me lobe a misapplicato Say thatsucna fstate: of-facts case of continuation' of' thlfsame cause: 6fl1ction,: , ... . ! of1the authorities cited in the brief asa rule, that 'the new matter injected into the amenaed'petitidti is but an Of the aetsof negligence which are the' 'original ground of : They do not change the issues1:ly i escaping' iproofsrequisite under the first petition, nor 'take Of defense which would have annihiplaintiff's I standby the principle of the rule establated. lished in SCovtU v. Gla81!er;79 Mo. 449. And the more especially ought subh 1'Ule'to' this. What becomes of the intendedprotectillle said&ection 4429, limiting the right of action for sucH 'deathsto'ane year after the injury, if the amendment in this case be a:ppTo\'ed?:-It ,was doubtless in recognition by the legislature of the fact that'theprincipalWitliesses to such accidents are most liable to be lost to the defendantc6tripanies) exposed, as they are, to daily dangers to life, coupled with their' migratory habits, that it imI
th."e PrinCiPal, "1IU)$ (iQfiQt hegatl\ies.the Idea that thededElat>ed was a feI-
posed, as a condition to the benefits of the new right of action given by this statute to the widow or -promptness in instituting the suit, so that living witnesses to the transaction might not be lost. For this, made of record by this plaintiff was that her husband's death resulted from the negligence of the defendant in failing to have in charge of its engine 8r skilled and competent engineel', to proteCt her husband against the carelessness and awkwardness of his' cpe'rtlplove. The defendant was thus notified' by the plaintiff that that was the issue to be met; that the witnesses, the evidence to be looked after and preserved, were such only as it might be advised by counsel would be necessary to disprove this issue. Now the defendant for the first time is notified that the plaintiff places her right of recovery on other and different ground; that the evidence which wonld prevent a recovery on the first-stated ground is wholly insufficient to prevent a recovery on the newly chosen field of action. The witnesses to the tragedy, by whom defenllant might have disproved the impnted acts of negligence in the,amended count, defendant might well have permitted to scatter, and pass out of view, as it was not essential to defeat the action to join issue on anything save that the engineer was a prudent and skilled person, or that defendant, alter the most diligent inquiry, was honestly led to believe that he was suited to the work; lor, being a fellow servant of the pefflon killed, the company was not liable, unless the engineer was so unsuited for the charge of the engine that this fact was known, or might have been known, to the company; whereas, under the amended count, if the engineer has since died or departed to parts unknown, or other witnesses to the act have died or gone out of the wuntry to places unknown, the former reliance of defendant is taken away, and it might be at the mercy of the plaintiff after a sleep of seven years. If such practice is to prevail, it will not be necessary for the pleader to ascertain within the year what the facts are entitling him to a recovery under this statute, or even to set them up when he files his petition; but he may let the case drag along for seven or ten )'ears,and then file an amended petition, shilting his ground of recovery, and present an entirely dilfArent cluss of facts. escaping pitfalls before him at a trial of the first cause of action, and putting his adversary to rout when his witnesses ha\·e ill the mean time died or· passed beyond reach. No such abuse of the of amendment ought to he recognized by any court. The demurrer to the second count is sustained, and overruled as to the first co·tnt.
' '4' 1,; CONIl'$UO'i:'iQN 01" CONTRAOT'-JOlNT AND SEVERAL LIABILITY. " :' :::: ' . : :" ·, 1 ' ".' ., ' ,.' " _ ' , , ' :,
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'. ,j;UAoonti'act for the bulldinlfof a creamery'and cheese factory, which purports to :
dd,1hh Wort. ere.· for the sum of 16,850,and the parties of the second part agree to tti"
',6, abO,',",'e03"m, 0t!tlt on the, CO,mpl,etio,'n, of the b,UUdingaCCOl'din g ,to, 'specifications; ", /loJle;t of theseooo,(1 'part, tbe subscribers, agree as soon as the above amount'is subscribed, or'iIi Ii reasonable time thereafter, to incorporate under the "JaWliIbfitbe state, fixill'g tbe aggregate amount of stock at not less than $6,850, to be , s4ares of said shares to be issued to the subScribers in pro,por'tl'lIh'tOtlleir to wh,lcli is attached a heading f9r the sub, JIIcribefs,.th'us:, "Names of SUbseribers. No. of Shares. Amount of StockafterlnWlIOS by the defelldants, as such subsoribers, for various '8hare.. ,Beta; that this wail a' contract, inter pa'l'tes. between the parties of the first paNiand!tbe subscribers of the second" pa1't;,whereby the subscribers became jointly , to thepartiell ,of thefll'jJt part for the payment of the sum of
receiYEla credit on the contract therefor of $200, and the subscribers agree to pay
own expel;lse the Ilecessary land and water for suoh building, and
, S.
.the 811hllCdbers in signing it,,,or their understanding of its terms,!lI not admissible to·vary its expressed terms. .Nor are any statements made by the lJQliciting agent of 'the' party of the first part,made'while soliciting subscribers, as to the meaning and tl:je contract, ipthe aQsenc-8 of fraud or deceit, competent evidence. PHRASEB+bTTllRPI{ETATION BY PARTIES.
, The contract being plain and unambiguous. parol e\"idence as to the intention of
.\;ROL EVIDENOE.
contract of doubtful or ambiguous meaning and application, the construction placed upon it by the parties thereto by word and,. whe,re sUch construotion has been' acted' on by the parties, "holll1i Pl'eve.il over any mere technical, gramm.atical, or logical Interpretation ; but whe<re tHe contract is free 'from ambill:uity,and its meaning is clear in the eye of the 'law,! 'Buch mode of oopptruction ' XJ:\e of t1:J,e contrll,ct,respectingtlle,organlzation of the ,SUbscribers into a corporatio'n 'ill no Wise the assumption of the subscribers of the payrnt;nt of tn'tlllum of'$6,850. That was a matterisubsequent,ittter s8se,as1io the subscrlbtheir joiX\t afterwards should ,be held and AtTEjU.. TO FORM: CaRPoRATION. '
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5.
Whensll.id eontraetwas signed by the l1'st four subSCribers it provided for the paY¥l-eIlt ln' Ol)lIh Df sum. subscribed upon the Of the work. Afterwards,to of subsequent subscribers, the provision was interpolll:t.ed, &1liOwfag the SUbscribers to pay one third in cash, one third in 60 days, and inf months,after the CO.mpietiotl of work; the q1eferl'ed payments to bear·S from date. Betd, that where there, are Beveral parties to Jan ,instrllmelit,·sotneJof Whom have execUted it, and in the progress of the transaction it is altered as to some who have not signed it, without the knowledge of the first signers, but not in a part affecting the liability of the latter, and is then executed by the others, tQe contract is good as to the first signers, according to the terms agreed upon by them, and is good as to the subsequent signers, with the addendum obligation. Where the first signers of the contract are the committee of the property, with whom a copy of such contract, after all the subscribers have executed it, is left, and this committee afterwards accept the property from the contractors as completed according to contract, and certify that the contractors are entitled to their pay, retain and mortgage the property as that of the creamery company, held. that all the subscribers are deemed to have waived such alteration, or, at least, are estopped from asserting such alteration.
CQNTRA6{
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6. W AlVER AND ESTOPPEL.