A railroad company is not responsible for the loss of a bag
containing money and jewelry, carried in the hand of a passenger
and by him accidentally dropped through an open window in the car,
although, upon notice of the loss, it refuses to stop the train
short of a usual station to enable him to recover it.
Under the practice in Louisiana, the circuit court of the United
States, after ordering a petition to be dismissed as showing no
cause of action, but with leave to file an amended petition, may at
the hearing on the amended petition amend the order allowing it to
be filed by providing that it shall be treated as a mere amendment
to the original petition, and thus preclude the plaintiff from
contesting a material fact, within his own knowledge, averred in
that petition.
Page 123 U. S. 62
This was an action against a railroad company. Judgment for
defendant. Plaintiff sued out this writ of error. The case is
stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This was an action against a railroad corporation by a passenger
to recover for the loss of a handbag and its contents. The
plaintiff, a married woman suing by authority of her husband,
alleged in the original petition that on October 25, 1883, the
defendant, being a common carrier of goods and persons for hire,
received her into one of its cars as a passenger from her summer
residence at Pass Christian, in the State of Mississippi, to her
winter residence, in New Orleans, having in her hand, and in her
immediate custody, possession, and control, a leathern bag of a
kind usually carried by women of her condition and station in
society, containing $5,800 in bankbills, and jewelry worth $4,075;
that while the plaintiff, holding the bag in her hand, was
attempting to close an open window next her seat, through which a
cold wind was blowing upon her, the bag and its contents, by some
cause unknown to her, accidentally fell from her hand through the
open window upon the railroad; that she immediately told the
conductor of the train that the bag contained property of hers of
great value,
Page 123 U. S. 63
and requested him to stop the train and to allow her to leave
the car and retake the bag and its contents, but he refused to do
so, although nothing hindered or prevented him, and, against her
protestations, caused the train to proceed at great speed for three
miles to Bay St. Louis, where he stopped the train, and she
dispatched a trusty person to the place where the bag had fallen;
but before he arrived there, the bag with its contents was stolen
and carried away by some person or persons to the plaintiff
unknown, "and was wholly lost to the plaintiff by the gross
negligence of the defendant as aforesaid."
The further averments of the petition undertaking to define
specifically the nature and effect of the obligation assumed by the
defendant to the plaintiff are mere conclusions of law, not
admitted by the exception, in the nature of a demurrer, which was
filed by the defendant, in accordance with the practice in
Louisiana, upon the ground that the petition set forth no cause of
action. The circuit court sustained the exception and ordered the
petition to be dismissed. 20 F. 430.
On the day the judgment was rendered and before it was signed,
it was amended on the plaintiff's motion by adding the words,
"unless the plaintiff amend her petition so as to state a cause of
action within five days."
Within that time, the plaintiff filed an amended petition
alleging that the defendant received the plaintiff as a passenger
and the bag and its contents as part of her luggage to be safely
kept and carried by the defendant as a common carrier to New
Orleans, and there delivered to the plaintiff; that the defendant
did not so carry and deliver, and that the things were lost by the
negligence and improper conduct of the defendant, and not by any
want of care on the part of the plaintiff. The defendant excepted
to the amended petition, because the plaintiff had no right to file
one after the original petition had been dismissed as aforesaid and
because the amended petition was inconsistent with the original
petition, especially in that the original petition alleged that the
bag and its contents were held and kept by the plaintiff in her
immediate possession, control, and custody, whereas the amended
petition alleged that the defendant received them as her
luggage.
Page 123 U. S. 64
After argument on this exception, the order allowing the
plaintiff to file an amended petition was modified by the court so
as to provide that the amended petition should be deemed and should
have effect only as an addition to the original petition, and the
exception to the amended petition was sustained, and the action
dismissed. The plaintiff sued out this writ of error.
The mere statement of the case is sufficient to demonstrate the
correctness of the judgment below.
The facts alleged in the original petition constitute no breach
or neglect of duty on the part of the defendant toward the
plaintiff. She did not entrust her bag to the exclusive custody and
care of the defendant's servants, but kept it in her own immediate
possession, without informing the defendant of the value of its
contents until after it had dropped from her hand through the open
window. Even if no negligence is to be imputed to her in attempting
to shut the window with the bag in her hand, yet her dropping the
bag was not the act of the defendant or its servants, nor anything
that they were bound to foresee or to guard against, and after it
had happened, she had no legal right, for the purpose of relieving
her from the consequences of an accident for which they were not
responsible, to require them to stop the train short of a usual
station, to the delay and inconvenience of other passengers and the
possible risk of collision with other trains.
This action being on the common law side of the circuit court,
the pleadings and practice were governed by the law of the state.
Rev.Stat. ยง 914. By article 419 of the Code of Practice of
Louisiana,
"After issue joined, the plaintiff may, with the leave of the
court, amend his original petition, provided the amendment does not
alter the substance of his demand by making it different from the
one originally brought."
An amendment wholly inconsistent with the allegations of the
original petition cannot be allowed.
Barrow v. Bank of
Louisiana, 2 La.Ann. 453. It is by no means clear that a
petition, which has been dismissed as showing no cause of action,
can be afterwards amended in matter of substance.
Hart v.
Bowie, 34 La.Ann. 323. But if the order
Page 123 U. S. 65
allowing an amended petition to be filed could be lawfully made
in this case so long as final judgment had not been entered, it was
equally within the power of the court to modify that order so as to
treat the amendment as a mere addition to the original petition,
and thus to preclude the plaintiff from contesting a material fact
within her own knowledge which she had once solemnly averred.
Judgment affirmed.