McCullough v. Philadelphia Rapid Transit Co. , 1915 Pa. Super. LEXIS 337 ( 1915 )

Opinion by

Head, J.,

The plaintiff brought this action of trespass on August 29, 1907. On the following September 4th he filed his statement with a rule to plead. On September 23d the plea was filed and the case put at issue. Thus the record stood until the case was called for trial in April, 1910, considerably more than two years after the cause of action arose. The plaintiff then moved for leave to amend his statement. Objection being made that the proposed amendment introduced a new cause of action which would be barred by the statute, the learned trial judge refused to permit it to be filed. The plaintiff then took this appeal.

In considering the question raised by this appeal, we are not to be understood as holding that the order made by the court below was such a final judgment or definitive decree as would support an appeal. No motion to quash was made or argued. We have concluded, there-, fore, to briefly review the order complained of.

Obviously in such a case we should first ascertain what was the cause of action relied on in the original statement of claim. The plaintiff averred the defendant was a public service company engaged in the business of transporting passengers, in other words a common carrier. That on a day certain he became a pay passenger and was seated in a car moving eastward on Chestnut street in the City of Philadelphia. Thus the relation of carrier and passenger, with the well defined legal duty and measure of care incident to that relation, was duly made to appear. Then follows an averment of the negligent and careless operation of the car in which the plaintiff was riding, a collision with another car resulting from such negligent operation and the consequent'hodily injury of the plaintiff. Here then were the essential ingredients of a good cause of action. If these averments of fact were established by proof, that disclosed no contributory negligence, the liability of the defendant would necessarily follow.

In addition to the above stated essential facts the original statement further averred that the car in which the plaintiff was seated, collided with one also moving eastward on Chestnut street. To what extent the plaintiff was injured in the collision, what- opportunity or capacity he had to see or know exactly how it occurred, the record before us does not disclose.

By the proposed amendment the plaintiff asked to be permitted to offer proof that the car in which he rode collided with another, not moving eastward on Chestnut street, but going south on Twelfth street. Can it be that such an amendment would introduce a new'cause of action? Clearly there was no attempt to change the relation between the plaintiff and defendant — the foundation on which his case rested — as the plaintiff undertook to do by amendment in Martin v. Pbg. Rys. Co., 227 Pa. 18. There was nothing in the proposed amendment that would change the character, the time or place of the negligent act complained of. If by reason of the proposed amendment it became necessary for the defendant to gather proof of some additional facts to establish the defense on which it relied, an application for a continuance would certainly have been granted. If looking solely for substance rather than form, for essentials rather than details, we examine the proposed amendment, it becomes reasonably apparent the scope and purpose of it were but to develop, to amplify or make clear the essential negligent act complained of in the original statement, to wit: the negligent operation of the car in which the plaintiff was riding. “An amendment may define or specify in different form the original cause of action,......but cannot shift or enlarge the ground by adding causes of action substantially different from that originally specified.” Per Elkin, J., in Mahoney v. Park Steel Co., 217 Pa. 20. It may be truly said of cases, of the class now before us, that each must be considered in the light of its own peculiar facts, and rarely can one be a binding precedent controlling the disposition of another. In principle we follow our own case of Terrell v. Rys. Co., 58 Superior Ct. 371.

The order of the learned court below is reversed and set aside and the record is remitted with direction to allow the amendment; and a procedendo is awarded. Costs of this appeal to be paid by appellee.