Georgia Railroad & Banking Co. v. Roughton

Fish, J.

We think the court erred in allowing the amendment to the petition, over the defendant’s objection, as, in our opinion, the amendment manifestly set forth a new cause of action. The negligence complained of in the original petition, as the cause of the plaintiff’s inj ury, was, that the defendant had left cars standing on its spur-track, in such a position that the plaintiff could not get from Badger street, along which he was passing, to the sidewalk of Borne street, without going into the middle of the latter street and passing around the cars, and that the ground on which he was thus forced to walk was rough, uneven, covered with snow and ice, and slippery, in consequence of which, in walking around the cars, he slipped and fell, thereby sustaining the injury for which he sued. The negligence a.l-. leged against the defendant was the leaving of its cars across the street.- It was not alleged that the defendant was, in any way, connected with, or responsible for, the condition of the street at the point where the plaintiff slipped and fell. The amendment, however, alleged that the defendant “dumped and left unscattered a pile of dirt and old brickbats, which had become frozen and hard where plaintiff was compelled to walk around said cars, which made the ground rough and uneven,” and that the defendant’left no signal or warning of any kind to put persons on notice of the rough place. This amendment introduced an entirely new item of negligence on the part of the defendant as the cause of the plaintiff’s injury, viz., the placing of an obstruction in the street and leaving it unguarded, thus adding a new and distinct cause of action, which section 5099 of the Civil Code forbids. See Central R. & Banking Co. v. Wood, 51 Ga. 515; Skidaway S. R. Co. v. O'Brien, 73 Ga. 655; Henderson v. Railroad Co., Id. 718; Cox v. Murphey, 82 Ga. 623; Davis v. Muscogee Mfg. Co., 106 Ga. 126.

Judgment reversed.

All the Justices concurring.