Cuddihy v. Hoboken Manufacturers Railroad

Brown, C. C. J. The plaintiff, as an employe of the defendant, instituted the above entitled cause for injuries sustained while working about the railroad of the defendant at the city of Hoboken. The plaintiff, by his motion, seeks to amend his complaint so as to charge that at the time he was injured the defendant was engaged in an interstate commerce operation. A new cause of action is barred at this time by virtue of the statute. The defendant opposes the motion and contends that the original complaint does not by any statement of fact charge an interstate commerce operation. The first paragraph of the complaint alleges that at the time of the occurrence the defendant was a corporation organized under the laws of the State of New Jersey as a freight carrier and doing business as such in the city of Hoboken, county of Hudson and State of New Jersey. The second paragraph reiterates the allegation that the defendant was a railroad freight carrier “and as such” on the date in question was the owner and operator of a train of freight cars attached to a flat car Ho. 200. The third paragraph contains the state 694 ment that the plaintiff was employed by the defendant “and was lawfully in and upon the aforementioned premises as a servant and agent of the defendant, and as such was lawfully on freight car No. 200 located in the j^ards of the defendant in the performance of his duties.” The fourth paragraph alleges that “while engaged in the interchange of freight cars the plaintiff attempted to alight therefrom to throw a switch and was * * * thrown to the ground through the negligence of the defendant.” The complaint does not allege thar the operation was one of interstate commerce nor does any statement appear therein from which such a conclusion could be drawn. On the contrary the operation is alleged to be local; within the State of New Jersey. No statement appears as in the original complaint in Tuthill v. Pennsylvania Railroad Co., 156 Atl. Rep. 633, that the railroad in question was operated between two states. In the ease of Seaboard Air Line Railway v. Penn, 241 U. S. 290, a case frequently cited in support of a motion to amend, the original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere. Where there is some statement in a complaint disclosing that the railroad upon which the injury occurs is being operated between two or more states an amendment may be allowed to an original complaint that fails to state the operation is one of interstate commerce. Such an amendment does nothing more than amplify the cause of action already stated. In the instant case no statement of an interstate character appears in the original complaint. To grant the motion to amend would in effect permit the plaintiff to set forth a new cause of action after the same was barred by the statute. This cannot legally be done, even as a matter of discretion. Hogarty v. Philadelphia and Reading Railway Co., 98 Atl. Rep. 741. The motion to amend will be denied.