Mumma v. Philadelphia & Reading Railway Co.

Citations

• 275 Pa. 277
• 119 A. 287
• 1922 Pa. LEXIS 494

Syllabus

<p>Negligence — Parties—Amendment of names — Statute of limitations — Federal rule.</p> <p>1. Ordinarily under the Pennsylvania cases, a change in the party plaintiff from an individual to a representative capacity is a change in the cause of action, and will not be allowed after the statute of limitations has become a bar; but this is not the law in the federal courts.</p> <p>2. Where a wife issues a writ in her own name in trespass for the death of her husband, and three years thereafter files a statement showing a cause of action under the Federal Employers’ Act of April 22, 1908, and on the same day by motion amends the record so as to sue as administratrix of her husband, and defendant pleads three years thereafter without objection or exception to the amendment, defendant at the trial cannot plead the statute of limitations as a bar to the admission of plaintiff’s testimony.</p> <p>Appeals — Amendment—Objection—Exception—Statute of limitations — Record—Request to transcribe testimony, charge, etc.</p> <p>3. Where there is complaint to an amendment of pleadings, the record must show an objection to its allowance, or an exception to the order permitting it, otherwise the complaint will not be considered on appeal.</p> <p>4. Assignments of error to rulings on evidence which raise the question of the statute of limitations, will not be considered, where there has been no request to transcribe the testimony and file of record the charge and points and answers.</p> <p>Negligence — Railroads—Master and servant — Engineer — Projecting rode in cut — Rislc of employment — 0ontributory negligence —Case for jury.</p> <p>5. An engineer who is killed, while leaning out of the cab window in the course of his duty, by his head coming in contact with a projecting rock in a cut, cannot be charged, as a matter of law, with assuming the risk of such an accident.</p> <p>6. It was negligence for the defendant to have its roadbed thus constructed.</p> <p>7. It is only in a clear cas