Arbunich v. United Railroads

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff in an action brought to recover damages for the death of her husband, Martin Arbunich, alleged to have been caused through the negligence of the defendant in the operation of one of its street-ears on Church Street in the city and county of San Francisco.

The first amended complaint was in two counts, the first alleging that the defendant “carelessly and negligently and with great speed ran and operated one of its said cars along said Church Street and into and upon said Martin Arbunich, ’ ’ causing his death. The second count alleged that “As the said Martin Arbunich was engaged in walking across said tracks, and while he was exercising all due and proper care in that behalf, and without any notice or warning of any kind to said Martin Arbunich, said defendant, after discovering

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the position and danger in which the said Martin Arbunich was, then and there and while being at a distance of eighty feet from said deceased, the said defendant carelessly, negligently and with great speed ran and operated one of its cars along said Church Street and into and upon said Martin Arbunich, etc.” At the trial of the cause and during the presentation of the plaintiff’s proofs the plaintiff moved the court for leave to amend both counts of her first amended complaint 'by adding thereto an averment to the effect that the car of the defendant which struck the deceased had attached to it a fender for the purpose of picking up and saving persons who were knocked down upon said track or street by said car; and that at the time and place of the injuries to the deceased it had carelessly and negligently placed said fender up against said car, and in a position where it would not operate and pick up or save deceased from said injury, and that by reason thereof the deceased was carelessly and negligently injured. The defendant objected to the allowance of this amendment to either count upon several grounds, but chiefly upon the ground that it was in the nature of a new cause of action which was barred by the statute of limitations. The court permitted the amendment, and also permitted the plaintiff to offer proof as to the position of the fender over the defendant’s objections.

The first contention of the appellant upon this appeal is that the court erred in permitting said amendment and in admitting evidence in support of its averments.