and the defendant answered, again referring to the former action and setting up the said statute of limitation, and alleging also contributory negligence on the part of the plaintiff. The cause came on to be tried before a jury.

The plaintiff submitted evidence tending to prove his petition. The defendant offered no evidence except such as related to the former action and its disposition. By stipulation of the parties the record of that suit was admitted in evidence. The petition in that case was rested upon the same cause of action as the present, except that it alleged that the injury happened from the negligence of the engineer in giving the sudden movement to the cars by reason of which the plaintiff was thrown off, without any signal from the plaintiff, and also from the negligence of the conductor in neglecting to protect the plaintiff while in the discharge of his duties, and the petition averred that "the proximate cause of his said injuries was the negligence of said defendant company, as aforesaid." On the 1st day of May, 1906, as appears by the record, the following proceedings occurred. We copy:

"Patrick J. Brown v. Erie Railroad Company.

"This day this cause being regularly called for trial, and plaintiff not being ready to proceed, it is ordered that this case be dismissed for want of prosecution without prejudice.

"It is therefore considered by the court that the defendant recover of the plaintiff its costs herein expended, taxed at $- and that plaintiff pay his own costs."

This was the state of the evidence on which the present cause was tried.

The defendant thereupon preferred the following requests:

"(1) To direct the jury to return a verdict for the defendant on the ground that the evidence of the plaintiff is not sufficient to warrant a verdict in his behalf; and

"(2) To direct a verdict for the defendant on the ground that it appears from the proof that the cause of action set up in the second amended petition and on which the testimony has been taken is not the same cause of action which was set up in the original petition filed in case No. 6566, and that the statute of limitations has run against the cause of action set forth in the petition on which this case is tried."

After argument of counsel, and consideration of said motions by the court, the court sustained the motion on the second ground, and directed the jury to return a verdict for the defendant.

We think the court erred in the view which it took in regard to the identity of the cause of action in the two suits. The parties were the same, the occurrence was the same, the injury and the damages were the same, and in both cases the negligence of the company by which the injury happened was in its legal character the same. In both cases the negligence charged was that of the company, It was not an action by the plaintiff against either the conductor or the engineer. Indeed, upon the facts stated, there would seem to have been concurrent faults of the two, of the conductor in sending off the signal by the wrong intermediary, and of the engineer in acting on a signal transmitted in the wrong way. Apparently the purpose of the rule requiring the signal to be transmitted by the front brakeman was to insure the giving

him warning. The maneuver of "kicking" cars out of a train is one known to be of considerable danger, and the scheme of the company's rule would furnish protection to the front brakeman who would be in the midst of the danger.

The pleader in this case evidently found difficulty in selecting the proper agent of the company for the purpose of introducing a representative. It was more a question of metaphysics than a matter of practical consequence. If either is selected as the medium of imputing negligence to the principal, it straightway appears the other was also .negligent and that his negligence contributed to the injury. But the subject does not require nor does it admit, nice distinctions, especially of matters which are formal merely and not of the essence of the complaint, which was here in its ultimate statement a charge against the railroad company of negligent conduct in the movement of its cars whereby the plaintiff suffered injury.

The question we have before us is whether the petition in this suit presents the same cause of action as was presented in the former suit. Inasmuch as the same question is involved in cases where an amendment to a petition is made after the statute has barred an action, and in cases where a new action is brought under a statute allowing it, namely, whether there is an identity in the cause of action brought in by the amendment, or stated in the new action, decisions in either class of cases upon that subject are equally pertinent to the case before us. Substantially this question was involved in the recent case of Hernan v. American Bridge Company, 167 Fed. 930, 93 C. C. A. 330, where an amendment of the petition in a pending case was allowed after the time when, if the suit had not been pending, the original cause of action would have been barred by the statute. The identity of the cause of action in the original petition with that of the amended petition was the test of the question whether the case could be proceeded with upon the amended petition against a plea in bar of the statute. It therefore became necessary to consider with care the circumstances which should distinguish a case so as to make it a new cause of action. We did not doubt that, if the amendment brought in a new cause of action, the statute was well pleaded. This has long been settled. 1 Encycl. of Pl. & Pr. 518. After referring to the liberality of the power, which the federal statutes give to the courts on the subject of amendments, we

said:

"We think the statutes extend the power of the court to allow an amendment which shall correct the description of the cause of action and of the parties at any stage of the case, and in respect to any proceeding in it, whether in the process or pleadings, and that it should be exercised in every case where right and justice require it."

The still earlier case of C., N. O. & T. P. Ry. Co. v. Gray, 101 Fed. 623, 41 C. C. A. 535, 50 L. R. A. 47, also decided by this court, is distinctly pertinent here, and is of itself a sufficient authority for the decision of the question we are considering in the present case. further, in the case of Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829, the action was for negligence of the company resulting in the death of a freight conductor. The accident occurred on January 6, 1887. The original petition was filed Septem

ber 3, 1887. The local statutes required the action to be brought within one year from the date of the injury. On February 16, 1888, more than a year after the injury, an amended petition was filed. The original petition alleged that the injury occurred while the conductor "was attempting to make a coupling of cars, because of the defective condition of the cross-ties and of the roadbed." In the amended petition it was alleged that the conductor was injured "on account of the drawhead and coupling pin not being suitable for the purpose and of the defective condition of the tracks." To this amended petition the defendant pleaded the statute of limitations. Upon this point, the court said:" "As the transaction set forth in both counts was the same, and the negligence charged in both related to defective conditions in respect of coupling cars in safety, we are not disposed by technical construction to hold that the second count alleged another and different negligence from the first."

See, 25 Cyc. 1319, note citing cases. The subject is well illustrated by the law relating to the conclusiveness of judgments. In 1 Ency. of Pl. & Pr. at page 556, it is said:

"It has been declared to be a fair test in determining whether a new cause of action is alleged in an amendment to inquire if a recovery had been had upon the original complaint it would be a bar to any recovery under the amended complaint, or if the same evidence would support both, or if the same measure of damages is applicable, or if both are subject to the same plea" [citing many cases where this test has been applied.]

And in 31 Cyc. 416, upon the authority of many decisions, it is stated that "so long as the facts added by the amendment, however different they may be from those alleged in the original pleading, show substantially the same injury in respect to the same transaction, the amendment is not objectionable as setting up a distinct cause of action," mentioning as an instance included, "varying the acts of negligence from which it is alleged the injury resulted." Suppose the first suit had been carried forward on the petition of the plaintiff therein filed, and the judgment had been against him; would it have been possible for him to have maintained a new action brought for the same. injury varied only by the circumstance that the injury occurred from the negligence of the conductor instead of the engineer? Clearly not. And so, if he had obtained a judgment in his favor, could he have brought another suit for the same injury founded on the distinction that the conductor was negligent? The answer is equally obvious. Every fact or circumstance which the plaintiff or defendant might have brought forward in support of his action or in defense becomes indifferent when the judgment is pronounced, and cannot be again used in a new suit upon the same cause of action to support or defeat a recovery. Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Southern Minnesota Ry. Co. v. St. Paul & S. C. K. Co., 55 Fed. 690, 694, 5 C. C. A. 249, per Thayer, J.; Manhattan Trust Co. v. Trust Co. of North America, 107 Fed. 328, 46 C. C. A. 322; Freeman on Judgments, § 249 (3d Ed.); Lawrence v. Stearns (C. C.) 79 Fed. 878; 23 Cyc. 1295. In an action against the principal, the negligence of the servant is not of itself a substantive factor, except as it is contemplated as the negligence of the principal. Or suppose an action to be brought

upon a promissory note against the maker and it is alleged that it was made by an agent on behalf of the maker and the plaintiff is defeated; could he maintain a fresh action against the same defendant on showing that another person executed the note on behalf of the maker? The material question in either case is whether the defendant made the note. The question is identical in both.

Another point remains to be considered. It is contended that even if it should be held there was error in instructing the jury that the cause of action was barred by the statute of limitation, still the ground, namely, that the evidence would not justify a verdict for the plaintiff, was valid, and that for that reason the instruction was in substance correct, and therefore the judgment ought to stand. There is an implication that the court was unwilling to put its instruction upon the ground now urged and the exception by defendant's counsel would indicate that the action of the court was construed as a refusal to give their first request. However, we have read the evidence and are satisfied that a peremptory instruction would not have been proper. As we think there was evidence enough to raise a question of fact for the jury upon all points necessary to a recovery, it was not for that court, nor is it for this, to estimate its relative weight or value.

The judgment must be reversed with costs, and a new trial awarded.

LEWIS et al. v. HITCHMAN COAL & COKE CO.

(Circuit Court of Appeals, Fourth Circuit. March 11, 1910.)

No. 949.

1. COURTS (8 407*)-APPELLATE JURISDICTION OF CIRCUIT COURTS OF APPEALS -"ORDER CONTINUING INJUNCTION."

Under Act March 3, 1891, c. 517, § 7, 26 Stat. 828, as amended by Act June 6, 1900, c. 803, 31 Stat. 660 (U. S. Comp. St. 1901, p. 550), and Act April 14, 1906, c. 1627, 34 Stat. 116 (U. S. Comp. St. Supp. 1909, p. 220), which gives a right of appeal to the Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction, to be taken within 30 days, an order overruling a motion to dissolve or modify an injunction previously granted is not one continuing the injunction within the meaning of the statute, and is not appealable.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 1100; Dec. Dig. § 407.*

Jurisdiction of Circuit Court of Appeals, see notes to 1 C. C. A. 6; 32 C. C. A. 475.]

Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Philippi.

Suit in equity by the Hitchman Coal & Coke Company against T. L. Lewis, individually and as vice president of the United Mine Workers of America, and others. Defendants appeal from an order overruling a motion to dissolve and modify a preliminary injunction. 172 Fed. 963. Appeal dismissed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Charles E. Hogg, for appellants.

George R. E. Gilchrist, for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD, District Judge. On the 24th of October, 1907, the Hitchman Coal & Coke Company, the appellee here, filed its bill of complaint in the Circuit Court of the United States for the Northern District of West Virginia, at Philippi, seeking an injunction against the defendants upon the grounds alleged in the bill, and to the extent prayed for. A temporary restraining order was issued on plaintiff's motion, and set down for hearing on the 14th day of January, 1908, and on that day the said hearing, on motion of defendants, was postponed until March 18, 1908, and the restraining order theretofore issued continued until the last-named date. On the 18th of March, 1908, the hearing was further postponed at the instance of defendants until the 26th day of May, 1908, and the restraining order continued until that day. On the 26th day of May, 1908, a hearing was had, and the injunction was granted as prayed for in the bill, the said injunction being in the same language as the temporary restraining order theretofore granted. On the day, to wit, May 26, 1908, that the hearing was had, and the injunction granted, certain of the defendants who had been served moved to dissolve the injunction, and this motion was continued until the 3d day of November, 1908. So far as appears from the record, the defendants took no further action on the motion to dissolve, but on the 15th of December, 1908, they filed in writing a motion to dissolve in part and to modify in certain respects the injunction of May 26, 1908. The latter motion was argued orally, and submitted on briefs of counsel for the parties April 7, 1909, and on September 21, 1909, the court entered an order denying the motion to modify, and continuing in force the injunction as granted on the 26th of May, 1908. From this order the defendants appealed to this court.

The interlocutory decree granting the injunction was entered, as before stated, on May 26, 1908, and 30 days elapsed thereafter without appeal. The question is presented to us upon a motion to dismiss as to whether the order of September 21, 1909, is appealable. This question arises under section 7, Act March 3, 1891, c. 517, 26 Stat. 828, to establish Circuit Courts of Appeals as amended by Act June 6, 1900, c. 803, 31 Stat. 660 (U. S. Comp. St. 1901, p. 550), and Act April 14, 1906, c. 1627, 34 Stat. 116 (U. S. Comp. St. Supp. 1909, p. 220). The said section as amended reads as follows:

"Sec. 7. That where, upon a hearing in equity in a District or in a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in any cause an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the Circuit Court of Appeals: Provided, that the appeal must be taken within thirty days from entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or by the appellate court, or a judge thereof, during the pendency of such appeal: Provided further, that the court below may, in its discretion, require as a condition of the appeal an additional bond."