Great Northern Ry. Co. v. Herron

VAN DEVANTER, Circuit Judge, after stating the case as above, delivered the opinion of the court. The statute invests the courts of the United States with large discretion in permitting the correction of defects in pleadings and process by amendment, and rulings of this character constitute no ground for reversal unless the discretion is grossly abused. Rev. St. § 954, U. S. Comp. St. 1901, p. 696; Lange v. Union Pacific R. Co., 62 C. C. A. 48, 126 Fed. 338; Rucker v. Bolles (C. C. A.) 133 Fed. 858, The complaint only imperfectly charged the defendant with negligence in the care of its right of way, and only inferentially charged that such negligence was a proximate cause of the destruction of the plaintiff’s property; but it did contain an allegation upon the subject, and that allegation, although defective, could not reasonably have failed to apprise the defendant that the recovery sought by the plaintiff was rested upon the existence of an unreasonable accumulation of inflammable material upon the right of way, and not solely upon the negligent operation of the engines and trains. Some purpose was to be attributed to that allegation, and its only possible purpose was to charge negligence in the care of the right of way, as a proximate cause of the plaintiff’s loss. Instead of introducing into the complaint a new charge of negligence, the first amendment merely corrected a defect in an existing allegation, the purpose of which was apparent, and the effect of which had been permitted to go unchallenged up to that time. As the defendant could not reasonably have been taken by surprise by the amendment, there was no abuse of discretion in its allowance. The other amendment wrought such a change in the plaintiff’s claim [52] that it should not have been permitted, except upon terms which would have been just to the defendant, such as a continuance of the cause, and payment by the plaintiff of the costs incident to the continuance. The complaint alleged that the cattle shed, with the other property destroyed, was located on section 36; and the defendant, acting upon-this statement, caused investigation to be made to ascertain what improvements and property were on that section at the time of the fire, and prepared its defense according to the result of that investigation. If the plaintiff intended to claim damages because of the burning of a. cattle shed widely separated from the other property, and located three-fourths of a mile away from section 36, the allegation in the complaint was misleading; and quite naturally the amendment took the defendant by surprise, and deprived it of an opportunity to defend against that part of the plaintiff’s' claim. The allowance of the amendment, without imposing any terms to prevent its working prejudicially to the defendant, was an abuse of discretion, and the error will require a reversal of the judgment unless the plaintiff shall remit therefrom a sufficient sum to make the error without possible prejudice. In support of the contention that a verdict for the defendant should have been directed, it is said there was no substantial evidence that the-fire was started in the inflammable material upon the right of way by the passing train, or that that was the fire which destroyed the plaintiff's-property. As shown in the foregoing statement, the evidence respecting the origin and identity of the fire was somewhat meager, but it -was almost necessarily so, because the fire occurred in a sparsely settled' locality, where its origin and course might not be observed by many witnesses, and might be observed only from a considerable distance. Obviously, this did not justify the submission of the case to the jury-without evidence that the origin of the fire, and its connection with the destruction of the plaintiff’s property, were such as to make the-defendant liable, but it did have a bearing upon the degree and character of proof which could be reasonably required of the plaintiff. We are of opinion that the evidence justified the submission of the case to-the jury. The judgment will be reversed, and the case remanded for a new trial, unless the defendant in error, by a proper remittitur in the court below, remits from the judgment $150, the largest value given to the cattle shed by the evidence, together with a proportionate amount of any interest which may have' accrued upon the judgment, and files-a certified transcript of such remittitur in this court within 40 days from the filing of this opinion, in which event the judgment will be-affirmed at the costs of the defendant in error.