Renn v. Seaboard Air Line Railway Co.

dissenting: 1. Tbe original complaint in tbis case does not state a cause of action under tbe Federal Employers’ Liability Act. Tbe argument tbat it does state sucb a cause of action is tbe same argument advanced in tbe first employers’ liability case, Howard v. R. R., 207 U. S., 463, and was rejected by tbe United States Supreme Court. It was beld tbat tbe Federal Employers’ Liability Act of 1906 was unconstitutional because it embraced all of tbe employees of a carrier engaged in interstate commerce, wbetber tbe employees were employed in sucb commerce at tbe time of their injury or not. Congress tben passed tbe act of 1908 and limited it to employees wbo are killed or Avbo are injured while employed in interstate commerce. Tbe most essential part of a cause of action under tbe statute is tbe cbaracter of tbe employment in wbicb plaintiff was engaged at tbe time of bis injury. It makes no difference tbat tbe employer is a carrier engaged in interstate commerce, unless tbe injured employee was employed in sucb commerce at tbe time of bis injury. In Brinkmeier v. R. R., 224 U. S., 268, tbe terms of tbe act in question were sucb tbat its application depended, first, upon tbe carrier being engaged in interstate commerce by railroad, and, second, upon tbe use of tbe car in moving interstate traffic. It did not embrace all cars used on tbe line of sucb carrier, but only sucb as were used in interstate commerce. Mr. Justice Van Devanier, writing tbe opinion of tbe Supreme Court of tbe United States, says:

“Tbis was an action to recover for personal injuries sustained by a brakeman while coupling two freight cars on a sidetrack of tbe defendant railway company at Hutchinson, Kansas. Tbe defendant prevailed in tbe State courts (81 Kan., 101, 105 Pac., 221), and tbe plaintiff brings tbe case here. Tbe injury occurred 12 November, 1900, and tbe action was begun 15 March, 1901.

“The question first presented for decision is wbetber tbe petition stated a cause of action under tbe original safety appliance act of 2 March, 1893, 25 Statutes at Large, 531, chapter 196, United States Compiled Statutes, 1901, page 3174, wbicb made it unlawful for any common carrier engaged in interstate commerce by railroad ‘to haul or permit to be hauled or used on its line any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact,’ etc. Tbe petition, if literally construed, charged tbat defendant was a common carrier engaged in interstate commerce by railroad; tbat tbe cars in question were not equipped with' couplers of tbe prescribed *144type, and that tbe plaintiff’s injuries proximately resulted from tbe absence of sucb couplers; but there was no allegation that either of the cars was then or at any time used in moving interstate traffic. The Supreme Court of the State held that in the absence of such an allegar tion the petition did not state a cause of action under the original act. We think that ruling was right.”

It would seem unnecessary to refer to other authorities in support of the propositions, first, that the construction of this complaint for the purpose of determining whether it states a cause of action under the Employers’ Liability Act is a Federal question, and not subject to control by State statutes and the decisions of State courts; and, second, that the complaint does not state a cause of action under the Federal act. Reliance by the Court upon the language quoted from the Brink-meter case to support the conclusion that this is not a Federal question results from a misunderstanding of the language used and its effect. Plaintiff brought suit in 1901, alleging a cause of action under the State law. In 1908 he proposed to amend so as to bring the action under the Federal safety appliance act. The Kansas 'court held that this amendment could not be made, the period of limitation having expired in the meantime. The Supreme Court of the United States said that this ruling involved only a question of pleading or practice under the laws of the State. If the Federal safety appliance act is examined, the reason for this statement will become apparent. That act contains no limitation whatever as to time within which an action based upon its provisions must be brought. The period of limitation referred to by the Kansas court and by the Supreme Court was the limitation fixed by the law of Kansas, and neither the plaintiff nor defendant could have been deprived of a right arising under a Federal statute by the ruling of the Kansas court permitting the amendment. In the case before us the Federal act limits the time. There “can be no doubt that the United States Supreme Court will review the ruling of a State court which deprives a defendant of the benefit of this provision of the act.

In Thornton’s Federal Employers’ Liability Act (2d edition), sec. 140, it is said: “The true rule is that if the declaration or complaint does not disclose the action is based or grounded upon the statute, then the plaintiff is not seeking to recover for an injury received while engaged in interstate traffic of the defendant, and the sufficiency of his pleading must be measured by the general State law, the provisions of the statute not being involved. However, if the evidence discloses the case is one under the statute, there will be a fatal variance and the plaintiff must fail.”

The conclusions in the opinion that the complaint sufficiently alleges that the plaintiff was employed in interstate commerce are drawn from *145these facts: An employee of an interstate carrier who lives in Wake County, North Carolina, is injured while at work in Cochran, Va. If this conclusion is justified the test for the application of the statute would be, not the character of the employment, but the place of residence of the employee. If the inference is permissible, as is suggested, that plaintiff was employed in interstate commerce when injured, he would have required proof of no other facts than those alleged in order to recover under the Federal act. Can it be possible that any court would hold that proof of the facts alleged, and no more, would show a case triable under th6 Federal act to the exclusion of the State law?

2. The court had no power to allow the amendment because it sets up a new cause of action, which is barred by the two-year period of limitation fixed by the Federal act.

This is a Federal question, involving the enforcement of one of the most important features of the Federal Employers’ Liability Act, and in looking to our statutes and decisions as the means of depriving the defendant of the benefit of the limitation period provided by section 6 of that act, I think the Court is going astray. But if we look to our statutes and decisions, there is every authority for holding that the allowance of this amendment was erroneous.

It will be found that section 507 of the Revisal does not end with the language quoted in the opinion, but contains this further provision, which is the part particularly applicable to this case: “Or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact, proved.” The plaintiff was permitted to amend his complaint to conform to the facts proved, and the statute by. strongest implication prohibits this when, as here, the amendment changed substantially the claim and the defense.

It is true that we have held that a defective statement of a good cause of action may be amended, but such decisions cannot be applied in this ease. This is not a defective statement of a good cause of action. It is a perfect statement of a cause of action good at common law and under the State statute. The fact that plaintiff did not have the cause of action which he pleads does not make his plea defective. The Court fails to note the distinction between the cause of action which arose in favor of plaintiff and the cause of action which he sets forth in his complaint. Defective statement of a good cause of action may be taken advantage of by demurrer. Would this Court seriously consider a demurrer to the original complaint in this action ? It is lacking in none of the essentials of a cause of action, and a demurrer would have been overruled without argument. It is true, as the Court says, that the original complaint with the amendment states a good cause of action under the Federal statute, and that is the very basis of the defendant’s *146objection, that it does so after the right of action under the statute has expired. But it does not follow that the original complaint contained a defective statement of the same cause of action rather than a good statement of a different cause of action.

It has been the long established rule in this State that where by an amendment a new charge is introduced against the defendant, he may make such defenses to it as if it were the foundation of an action then newly begun. Christmas v. Mitchell, 38 N. C., 535; Cogdell v. Exum, 69 N. C., 464; Patterson v. Wadsworth, 89 N. C., 407; Gillam v. Insurance Co., 121 N. C., 369. “Amendments are not admissible where the effect would be to prejudice acquired interests, or take away any defense which could be made to an action begun at the time of the amendment.” Henderson v. Graham, 84 N. C., 496.

“Where the cause of action is changed by an amended complaint, the defendant-has the right to set up in the answer thereto any legal defense, including the statute of limitations, just as if the action had been commenced at the date of the amended complaint.” Sams v. Price, 121 N. C., 392.

In Bennett v. R. R., 159 N. C., 345, we said: “While courts are liberal in permitting amendments, silch as are germane to a cause of action, it has been frequently held that the court has no power to convert a pending action that cannot be maintained into a new and different action by the process of amendment. Best v. Kinston, 106 N. C., 205; Merrill v. Merrill, 92 N. C., 657; Clendennin v. Turner, 96 N. C., 416. In the last case it is said: ‘The court has no power, except by consent, to allow amendments, either in respect to parties or the cause of action, which will make substantially a new action, as this would be not to allow an amendment, but to substitute a new action for the one pending.’ ” Hall v. R. R., 146 N. C., 345.

The Federal Employers’ Liability Act gives a cause of action separate and distinct from the common-law cause of action and the cause of action created by our Revisal, sec. 2646. R. R. v. Horton, 233 U. S., 492. A cause of action not previously existing was created by the Federal act. In Taylor v. Taylor, 232 U. S., 363, the Supreme Court says: “The Federal Employers’ Liability Act is more than a statutory declaration of the remedy to be pursued; it is the ‘source of his (the employee’s) right.’ ” In R. R. v. Behrens, 233 U. S., 473, Mr. Justice Van Devanter says: “There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce.” See, also, Pedersen v. R. R., 229 U. S., 150; R. R. Co. v. Craft, 237 U. S., 648; Mondou v. R. R., 223 U. S., 1; R. R. v. Vreeland, 227 U. S., 59.

*147If, as is held by the Supreme Court of the United States, the effect of this statute was not to create a new remedy for an existing cause of action, but to create a new cause of action, then it follows necessarily that it is not the same cause of action as that existing at common law and under the statute of this State, and, in introducing this cause of action by way of amendment, the plaintiff cannot avoid the requirement that suit to enforce such cause of action must be brought within two years after the cause of action accrued. Our decisions, which I have cited, seem to conclusively support the defendant’s position in this case. But, as I have said, this is not a State but a Federal question, and must be controlled by the decisions of the United States courts. R. R. v. Wyler, 158 U. S., 293, seems to me to be directly in point against the plaintiff’s right to amend his complaint. In that case the original complaint set forth a cause of action under the general law of master and servant. The amendment declared under a State statute regulating such action. It was held that this amendment could not be permitted because it constituted a departure in pleading and set up a new cause of action. The principles laid down in this case have been accepted everywhere, and the United States Supreme Court has had frequent occasion to reexamine the case, and its correctness has never been questioned. R. R. v. Laird,, 164 U. S., 396; United, States v. Dalcour, 203 U. S., 408, 423; R. R. v. Wulf, 226 U. S., 570; R. R. v. Hesterly, 228 U. S., 703.

An examination of the Wulf case, 227 U. S., 570, will show that it is not decisive of the right to amend in this ease. From the institution of the Wulf case, it was contended, and appears in the original complaint, that the plaintiff’s intestate was employed in interstate commerce at the time of his death. The allegation is that the deceased at the time of his death was “in the employ of the defendant as a locomotive fireman and in the performance of his duties as such upon a train bound from Parsons, in the State of Kansas, to Osage, in the State of Oklahoma.” The amendment permitted merely changed the character in which plaintiff sued from her individual capacity to administratrix. The Supreme Court of the United States held that this was a change in form and not in substance and did not change the cause of action as originally alleged. The Court said in the opinion that in the original and amended petitions “It was sufficiently averred that deceased came to his death through injuries suffered while he was employed by the defendant in interstate commerce. In Bactillo v. Commission Co., 131 Fed., 680, cited in the Wulf case, the rule of the Federal courts in respect to amendments is stated as follows:

“An amendment to a petition, which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the *148allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the State, a plaintiff is only required to state the facts which constitute his cause of action.”

It is clear that the Wulf case and the Wyler case are not in conflict. In R. R. v. Hesterly, 278 U. S., 703, it is said:

“The plaintiff, not the defendant, had the election how the suit should be brought, and as he relied upon the State law, the defendant had no choice, if it was to defend upon the facts. Whether the defendant could have defeated the first count also on the ground that the plaintiff was suing upon a statute of one jurisdiction, whereas the action could be maintained only on that of another, need not be decided, since the defendant asks reversal of only so much of the judgment as rests on the second count. Hence it is unnecessary to consider whether the principle of R. R. v. Wyler, 158 U. S., 285, 39 L. Ed., 983, 15 Sup. Ct. Rep., 877, or that of R. R. v. Wulf, 226 U. S., 570, 577, 57 L. Ed. ..., 33 Sup. Ct. Rep., 135, should be applied.”

In Morrison v. R. R., 40 App. Cas., D. C., 391, which is in point, it is said: “The original complaint herein invoked the rule of the common law as a ground of action. The attempt of the plaintiff more than one year after the alleged bad faith of the defendant to invoke a different rule, namely, the rule prescribed by the act of 1906, must be held to amount to the commencement of a new action. The change was one of substance and not merely of form. R. R. v. Wyler, 158 U. S., 285. It is unnecessary, therefore, to determine the effect of an excuse seasonably pleaded, for failure to bring the suit within the statutory period.” Moliter v. R. R., 168 S. W., 250, is in point and supports the defendant’s position. It was there admitted that plaintiff was employed in interstate commerce by a carrier engaged in such commerce. It appeared that plaintiff failed to plead facts bringing his action under the Federal act, and proposed to amend, after verdict, so as to include the necessary allegations. The Court refused the amendment, and says:

“Plaintiff’s action, as stated in his pleading, being either under the common law or the statute of Missouri, and not under the Federal statute, he cannot recover under the latter statute without changing his cause of action from law to law; and that we decided in McAdew v.

*149R. R., supra, be could not do. See, also, R. R. v. Wyler, 158 U. S., 285, 15 Sup. Ct., 877, 39 L. Ed., 983; R. R. v. Seale, 229 U. S., 156, 33 Sup. Ct., 651, 57 L. Ed., 1129.

“Plaintiff’s contention is tbat, if tbe evidence showed bis right of action was under tbe Federal statute, be could recover, although no facts constituting such action were pleaded, and although he did not submit the case to the jury under that statute. That idea is no less than a claim that a pleading does not bind the pleader, and indeed is unnecessary, since a recovery may be had for the violation of any right which the evidence may disclose. . . . But it is said that, conceding the error herein pointed out, judgment should nevertheless be affirmed and the cause remanded, to the end that the petition be amended to conform to the proof. We think there is no authority for such course.- The defense in plaintiff’s case is not a mere variance; it is a total failure to prove the cause of action alleged. ‘In short, the case pleaded was not proved, and the case proved was not pleaded.’ R. R. v. Seale, 229 U. S., 161. This is made manifest by the suggestion that, under plaintiff’s petition, contributory negligence does not affect the measure of his damages and only goes to defeat the action, while under the Federal statute it does not defeat the action, but does affect the measure of damages.”

In Allen v. R. R., 229 Pa., 97, it is held that a complaint stating a cause of action under the State law cannot be amended, after the limitation period has expired, so as to charge that defendant failed to comply with the Federal Safety Appliance Act.

The Court says: “It is also true that if, as claimed by the plaintiff, all the facts necessary to sustain a recovery on the amended statement were set forth in the original statement, the amendment would still be a change or departure from the original statement, not from fact to fact, but from law to law; from an action founded on the common law to one founded on a statute abrogating the common law, which is equally effective to prevent an allowance of the amendment. In such case the plaintiff bases his right of recovery upon other and different law, instead of other and different facts, and it constitutes a departure from the original cause of action. R. R. v. Wyler, 158 U. S., 285, 39 L. Ed., 983, 15 Sup. Ct. Rep., 877; R. R. v. Hurd, 56 L. R. A., 193, 47 C. C. A., 615, 108 Fed., 116.”

In Hall v. R. R., 157 Fed., 464, it is said: “The question of ‘relation back’ of amendments is a fiction of the law, and shall never be allowed when to do so would, to the prejudice of a litigant, deprive him of a substantial legal right.” It is unnecessary to -recite the features in which a cause of action at common law and under our statute differs from a cause of action under the Federal statute. They are numerous *150and important, as shown by the cases of R. R. v. Zachary, 232 U. S., 248; R. R. v. Horton, 233 U. S., 492; R. R. v. Tilghman, 237 U. S., 499; R. R. v. Craft, 237 U. S., 648; R. R. v. White, 238 U. S., ..., when considered in connection with Zachary v. R. R., 156 N. C., 496; Horton v. R. R., 162 N. C., 424; Tilghman v. R. R., 167 N. C., 163; Bolick v. R. R., 138 N. C., 370; Burnett v. R. R., 163 N. C., 186.

3. I think the Court also errs in holding that there is any evidence of negligence in the record. I fail to see wherein the defendant was wanting in the discharge of any duty it owed the plaintiff on the night when he was hurt. Thousands of persons before this plaintiff have slipped up on the ice and hurt themselves without blaming any one but their own bad luck.

I cannot see that the defendant was negligent in not anticipating that its tank would overflow and the water would submerge the path and that the night would be freezing and the plaintiff would slip on it and injure himself. If it was the duty of the defendant to keep snow and ice off the path leading from the tank to the pump, it was its duty to keep it off of every path at every point on its right of way. It makes no difference how the water got on the path, whether through nature or from the accidental overflow of the tank, if the defendant owed the plaintiff no duty to keep this particular path free from ice, there was no breach of duty upon its part.

There is no evidence that the path being used by the plaintiff was marked out by the defendant as the path for its employees. Plaintiff’s witnesses said it was the usual path. They also said that employees were free to go any way they desired in getting to the pump, and the evidence shows that there were two additional paths. There is nothing to show that the defendant had ever adopted the path or designated it as the proper one for its employees; there is nothing to show that the defendant marked it out or kept it up. It may have been, and probably was, if a path at all, one of the several ways of getting to the pump. The tank and pump were both in the open country with nothing to prevent pedestrians .using any path they saw fit, or walking in any direction they desired. Plaintiff says he was walking in the usual path from the pump to the train.

The evidence of the plaintiff shows that there is another path that he might well have taken which comes up to the other side of the tank and on the opposite side from that on which the plaintiff fell. Parks, one of the plaintiff’s witnesses, testifies that one can go to the pump-house any way he wants to go; that there are other paths leading to the pump-house. This witness also says that it was a very hard winter, the hardest winter he had ever seen around Cochran, and that everything was frozen up. This evidence shows that the plaintiff had other routes to take, and *151if be saw fit to take tbe one tbat was covered witb ice, be did it witb bis eyes open and ongbt not to be permitted to recover.

Tbe defendant bad no notice tbat plaintiff would use tbat patb. If it was dangerous to use plaintiff bad equal opportunity witb defendant to know tbe danger. Plaintiff bad bis choice of tbe paths leading to tbe pump. He was free to go where be pleased. Tbat be selected tbe patb in which tbe ice bad accumulated during tbe day ought not to‘ be charged against tbe defendant.

“Tbe duty of a master to provide a reasonably safe place in which bis servant shall work does not extend to safeguarding tbe route of every journey tbe servant may be required to make in fetching and carrying, whether messages or portable articles.” Bridge Co. v. Bainum,, 146 F., 367.

4. Tbe contention of tbe defendant on tbe issue of assumption of risk is tbat tbe condition complained of was one of tbe ordinary risks of an employee engaged in working around water tanks. ' This is well founded. Any man of ordinary intelligence is charged witb knowledge of tbe fact tbat in extremely cold weather there is an accumulation of ice around water tanks, and plaintiff admitted tbat be was well aware of tbat condition.

Plaintiff testified tbat “you find water around tbe water tanks, but it is on account of tbe carelessness of tbe firemen you find it. I do not know about a plenty of it.. I have been to tanks and found water around them, and tbat is a common thing, but it is not necessary tbat it should be there, but I have seen it there. In cold weather tbat water freezes like any other water. In weather as cold as this water tbat comes down out of tbe heavens freezes as soon as it bits tbe ground. I bad just gotten to Cochran; bad not been there over thirty minutes. I found ice there at tbat tank. I do not know tbat I found ice anywhere else tbat winter.”

Eailroad employees assume tbe risks incident to tbe falling of snow and forming of ice on and tbe removal of tbe same from the tracks and places where employees are required to work, if such removal is made in a proper and reasonable manner. Labatt (1st Ed.), page 604 (note).

Tbe injury to tbe plaintiff was an accident, pure and simple, an unexpected result from a known cause, for which, in my opinion, tbe defendant is in no sense responsible.

It is admitted that the defendant is a common carrier-engaged in interstate commerce and that the plaintiff was employed in such commerce at the time of his injury. It was therefore necessary and essential to allege a cause of action under the Employers’ Liability Act, because the Federal statute is exclusive and supersedes the right of action under the State law. Mondou v. R. R., 223 U. S., 1; R. R. v. Wulf, 226 U. S., 510; and R. R. Co. v. Hayes, 234 U. S., 86.

- In the last case the Court says, “Had the injury occurred in interstate commerce, as was alleged, the Federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the State; in other words, the Federal act would have been exclusive in its operation, not merely cumulative”; citing for this position, among others, the Mondou case, which says of the Employers’ Liability Act: “And now that Congress has acted, the laws of the States, in so far as they cover the same field, are superseded.”

We must then examine the original complaint for the purpose of seeing if it alleges a cause of action under the Federal act, and, if not, must inquire into the power of the court to allow the amendment.

This presents a question of pleading and practice under the laws of this State, as the Supreme Court of the United States has said in Brinkmeier v. R. R., 224 U. S., 268, in reference to an assignment of error on account of an amendment to a pleading: “Error is assigned upon this ruling; but as it involved only a question of pleading and practice under the laws of the State it is-not subject to review by us,” and there are many other cases to the same effect.

When we turn to our statutes we find it is provided by section 515 of the Eevisal that “No variance between a pleading and the proof shall be deemed material unless it has actually misled the ' adverse party to his prejudice in maintaining his action upon the merits,” and *136by section 495, that “In the construction of a pleading for tbe purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.”

These statutes were considered in Blackmore v. Winders, 144 N. C., 215, and it was there held, with reference to a pleading, that “If it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause’ of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader,” and this was approved in Brewer v. Wynne, 154 N. C., 467.

If this rule of construction is applied to the original complaint and it is construed in the liberal spirit contemplated by the Code, it alleges a cause of action under the Federal statute.

It must be kept in mind that the plaintiff was employed in interstate commerce at the time of his injury by an interstate carrier, and that he had no cause of action except under the Federal statute, because, as we have seen, it had the effect of superseding the State laws.

The original complaint alleges that the plaintiff was injured by the negligence of the defendant and that this caused him damage, which he prays the court to award him. He could not be entitled to recover damages except under the Federal statute. He alleges further that the defendant was operating a line of railway in the States of North Carolina and Virginia, and this made it an interstate carrier. There is no reference in the complaint to the fact that the defendant did an intrastate business. The plaintiff alleges further that he was in the employment of the defendant, presumably in the interstate business which the defendant was conducting. He says further that he was in the discharge of the duties of his said employment at the time of his injury and that he lived in "Wake County, N. C., and was injured in Cochran, Va.

As there is no reference to intrastate business in the complaint, and it is alleged that the defendant was doing an interstate business, that he was injured while in the discharge of his employment, is not the inference permissible and reasonable that he was employed in interstate business and was injured in the discharge of his duties in that employment? If, however, the original complaint does not allege a cause of action under the Federal act, we are of opinion that the court had the *137power to permit it to be amended by alleging that tbe defendant was employed in interstate commerce at tbe time of bis injury.

We must again have recourse to our own statutes and decisions, and we find that “Any pleading may be once amended of course, without cost and without prejudice to tbe proceedings already bad, at any time before tbe period for answering it expires; or it can be so amended at any time, unless it be made to appear to tbe court that it was done for tbe purpose of delay, and tbe plaintiff or defendant will thereby lose tbe benefit of the term for which tbe cause may be or is docketed for trial” (Eev., sec. 505), and that “Tbe judge or court may, before and 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 tbe name of any party, or by correcting a mistake in tbe name of a party, or a mistake in any other respect, or by inserting other allegations material to the case." Eev., sec. 507. (Italics ours.)

. These sections of tbe Eevisal bave been very fully considered in Ladd v. Ladd, 121 N. C., 118; Lassiter v. R. R., 136 N. C., 93; Bank v. Duffy, 156 N. C., 87, and in other cases, and tbe distinction is drawn between a defective statement of a cause of action which may be amended and tbe statement of a defective cause of action which cannot be amended.

In tbe Lassiter case tbe Court says: “Tbe difference between a defective statement of a good cause of action which can be amended by inserting other material allegations and a statement of a defective cause of action is that tbe latter cannot be made a good cause by adding other allegations.”

If this is a correct statement of tbe law, it is conclusive upon tbe power of tbe court to amend tbe complaint by allowing an additional allegation to be made, as tbe original complaint with tbe amendment admittedly states a good cause of action under tbe Federal statute. R. R. v. Wulf, 226 U. S., 570, seems to be decisive of tbe right to amend. In that case Sallie O. Wulf commenced an action in tbe Circuit Court of tbe United States in tbe Eastern District of Texas, in her individual capacity to recover damages for tbe death of her son who was killed in Kansas, and she alleged in her original complaint that in tbe State of Kansas a right of action was provided by statute for injuries resulting in death. Tbe defendant was engaged in interstate commerce and tbe intestate was killed while employed in that commerce. Tbe plaintiff could not sue in her individual capacity under tbe Federal act. More than two years after tbe injury tbe Circuit Court permitted an amendment by which she was allowed to prosecute the action as administra-trix of her son. Tbe Supreme Court of tbe United States approved tbe amendment and held that it was not equivalent to the commence*138ment of a new action so as to render it subject to tbe two years limitation prescribed by section 6 of tbe Employers’ Liability Act, and tbat tbe amendment related back to tbe beginning of tbe action.

R. R. v. Wyler, 158 U. S., wbicb is relied on by defendant, is commented upon in tbe Wulf case and distinguished, and it was pointed out tbat in tbe Wyler case tbe amendment introduced a new .and distinct cause of action, while in tbe case before us there is but one cause of action, and if tbe original complaint was defective it is only because of tbe absence of one allegation necessary to a complete and perfect statement of a cause of action.

Tbe Employers’ Liability Act confers concurrent jurisdiction upon tbe State courts for tbe trial of causes of action arising thereunder and, instead of prescribing tbe practice and procedure for tbe State courts, it is provided in another act of Congress as to actions at law in tbe Federal courts (and this falls within tbat class), tbat “Tbe propriety of amendments to pleadings in tbe Circuit and District Courts of tbe United States is governed by tbe provisions of section 1914 of tbe Revised Statutes to tbe effect tbat: Tbe practice, pleadings and form and mode of proceeding in civil causes other than equity and admiralty causes in tbe Circuit and District Courts shall conform as near as maybe to tbe practice, pleadings and form and mode of proceeding existing at tbe time in like causes in tbe courts of record of tbe State within wbicb such Circuit or District Courts are held, any rule of court to tbe contrary notwithstanding. 1 Ency. U. S., 298.”

If, therefore, tbe action bad been commenced in a court of the United States tbe power would have existed of “inserting other allegations material to tbe case” in conformity with our statute (Rev., sec. 507), and this power cannot be less when tbe action is brought in tbe courts of tbe State.

If a proposed amendment cannot be allowed because material and necessary to tbe statement of a cause of action, tbe power of amendment, wbicb Mr. Justice Swayne says, in Tilton v. Cofield, 93 U. S., .... “is incidental to tbe exercise of all judicial power and is indispensable to tbe ends of justice,” becomes useless and of no effect, as an amendment need not be made if not material.

We therefore conclude tbat tbe court bad tbe power to allow the amendment, and this also disposes of tbe exception to tbe charge upon tbe sixth issue because tbe amendment related back to tbe commencement of tbe action, wbicb was brought witbih two years from tbe time of tbe injury.

Tbe defendant also relies, in bis motion for nonsuit, upon tbe contention tbat there is no evidence of negligence, and this necessitates an examination of tbe duty imposed upon tbe employer and whether tbe *139evidence discloses a failure to perforin that duty, which proximately caused the injury to the plaintiff.

In R. R. v. Horton, 233 U. S., 492, the Court says: “The common law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence is exercised, to the end that the place in which the work is to be performed and the tools and appliances for the work may be safe for the workmen,” and concludes that the Employers’ Liability Act has not changed this rule of liability.

It being, then, the duty of the defendant to furnish the plaintiff a reasonably safe place in which to do his work, and the authorities are all to this effect, is there any evidence that it failed in the performance of this duty?

The plaintiff was injured at night and he testifies that he was exercising due care for his own safety. He had not been about the premises, where he was injured on the day of the injury until he was injured.

There is evidence that an employee of the defendant whose duty it was to pump water into the tank'unnecessarily permitted the pump to continue working after the tank was full, and that this caused water to-pour out upon the path over which the plaintiff was required to go in the performance of his duties; that this continued for such a length of time that a solid sheet of ice formed across the path; that the ice was smooth, slippery and dangerous, that the weather was very cold and that it might be reasonably anticipated that ice would form where the water fell; that this continued during the day before the plaintiff was injured and that the ice could have been easily removed; that a sufficient work force was present and available to remove the ice, and •that it did not do so; that this work force had removed ice from the pathway nearer to the station than the place where the plaintiff was injured; that the ice was covered with snow which concealed its presence from the plaintiff. This furnished some evidence that the defendant had failed in the performance of its duty to provide a reasonably safe place for the plaintiff to work, and the evidence further shows that the plaintiff was injured by the failure to perform this duty. We therefore conclude that the judgment of nonsuit was properly overruled.

The charge of his Honor as to the duty of the defendant to provide a safe place is substantially taken from the Horton case, which we have before cited, and the same case sustains the ruling refusing to direct a verdict in favor of the defendant on the issue of assumption of risk. In that case the Court says: “Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in *140fixing the rate of wages, and a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.”

His Honor followed this statement of the law, quoting this language from the opinion, and saying further: “If, by the exercise of ordinary care and prudence (it was the duty that he owed), he could have seen that the ice had accumulated at that place, and could have become aware that there was risk in walking over it, then he would be charged with such facts as the exercise of such ordinary care would have disclosed to him, and if you are satisfied that they would have disclosed to him that the ice was there and that it was slippery, then you will find that he has assumed the risk of the injury in passing over it, and in that event you would answer the second issue ‘Yes.’ ” And again, “That the plaintiff in his employment, fixing pumps for the defendant, and in going from place to place in the performance of his duty, assumed the risk which inclement weather added to his employment, and if you find by the greater weight of the evidence that the plaintiff slipped on the ice or snow, which resulted solely from the inclement weather conditions, and that the same were not negligently left on the path over which he was traveling, if he was traveling over the path, you will answer the issue of assumption of risk, the second issue, ‘Yes.’ ” And again, “If you find from the evidence, by the proponder-. anee thereof, that the plaintiff knew of the existence of the ice at the place where he fell, or by the exercise of care, the care of a prudent man, could have knowledge of its existence at that point, he assumed the risk of injury from slipping thereon, and you will answer the issue of assumption of risk, which is issue N>. 2, ‘Yes.’ ”

This complies with the rule laid down in the Horton case, because, if the evidence of the plaintiff is true, the condition of the place where the plaintiff was injured was not normal, but was unusual, and the plaintiff could not discover it by the exercise of ordinary care.

The witness Parks was asked: “Why was the tank running over?” Objection by the defendant. Objection overruled; defendant excepted. He replied: “Because the pumper was neglecting his duty and let it continue to run after the tank was full.” We do not approve of the expression, “because the pumper was neglecting his duty,” and doubt*141less if defendant bad moved to strike tbis out as an expression.of opinion tbe motion would bave been granted, but tbe motion to strike out was made upon another ground and one wbieb is not tenable — tbat tbis particular act of negligence was not alleged in tbe complaint, and it is well settled tbat “Where a party states tbe ground of bis objection to evidence below be cannot rely upon a different ground in tbis Court.” Ludwiclc v. Penny, 158 N. C., 113.

In Presnell v. Garrison, 122 N. C., 595, Furches, J., says: “But as a wrong reason was assigned for tbe objection, we treat tbe case as if no objection bad been taken”; and Rollins v. Henry, 78 N. C., 342; Kidder v. McIlhenny, 81 N. C., 123, and Jones v. Call, 93 N. C., 179, support tbe same rule.

It was not necessary to allege tbe negligent act of permitting tbe tank to run over, in tbe complaint, because tbe negligence relied on is tbat tbe defendant did not provide a safe place for tbe plaintiff to work, and evidence tbat tbe tank ran over was competent under tbis allegation for tbe purpose of showing tbat tbe ice did not form across tbe path from natural causes.

If, however, bis Honor bad been asked to strike out tbe answer of tbe witness upon tbe ground tbat it was an expression of opinion, bis refusal to do so would not bave constituted reversible error, because when tbe answer is considered as a whole and in connection with tbe context it amounts to no more than a statement that tbe pumper permitted tbe pump to continue to run, and tbe tank ran over, which is a fact and not an opinion.

Tbe plaintiff while on tbe witness stand was asked: “Did you cause your own fall in any way?” Objection by tbe defendant; objection overruled; defendant excepted; and be replied: “No, I did not. I was just as careful walking as I could be.” Phifer v. R. R., 122 N. C., 940, is authority for tbe position tbat tbe latter part of tbe answer is objectionable as an expression of an opinion, but tbe later cases and tbe trend of authority elsewhere are tbat it is competent as a statement of a fact. Taylor v. Security Co., 145 N. C., 385; Britt v. R. R., 148 N. C., 40; S. v. Leak, 156 N. C., 647 ; 3 Wig. Ev., sec. 1938; McKelvey Ev., p. 220.

Professor Wigmore says, vol. 3, sec. -1949: “Tbis topic is one of tbe few upon which there has ever existed in tbe English precedents any foundation for doubt. Tbe subject of tbe testimony in question is manifold; sometimes it is whether'proper care was taken, sometimes whether action was reasonable, sometimes whether sufficient skill was shown, sometimes whether a place or a machine was safe; but all tbe forms seem reducible to a general one, namely, whether a certain standard of conduct was observed. Looking first at tbe orthodox practice in *142England, it is clear there is not and never has been any real question as to the propriety' of such testimony. The morbid and doctrinaire theory of cautiousness which is the foundation of the American rulings has never been known at the English bar.” He speaks of the rule of exclusion as a “modern excrescence on the common law” and concludes that such evidence is competent.

Mr. MeKelvey, in a passage quoted with approval in S. v. Leah, says: “The instantaneous conclusions of the mind as to1 the appearance, condition, or mental or physical state of persons, animals and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence. A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, ‘matter of fact/ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person’s hair, or any other physical fact of like nature. This class of evidence is treated in many of the cases as opinion admitted .under exception to the general rule, and in others as matter of fact — ‘shorthand statement of fact’ — as it is called. It seems more accurate to treat it as a fact, as it embraces those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts.”

In S. v. Williams, 168 N. C., 195, expressions in dying declarations “I did nothing,” “He cut me for nothing,” “They had no occasion to shoot me,” “I have done nothing to be shot for,” are considered as statements of facts and not opinions. If, however, the evidence was objectionable it could have had but little, if any, bearing upon the issue, because the plaintiff described his conduct in detail and showed he was Careful, and there was no evidence to the contrary.

We might also dispose of the exception upon the ground that it was competent for the witness to say he did not cause his own fall, and if the answer went beyond the question the remedy of the defendant was to move to strike out. Caton v. Toler, 160 N. C., 106.

The judges of the Superior Court should be careful in the application of this principle to see that opinions are not admitted under the guise *143of facts, and usually it is better aud wiser to require tbe witness to state tbe circumstances surrounding tbe transaction and no more.

We have carefully considered tbe whole record and find no error.

No error.