Syllabus.

time he was struck by the rock. When from the nature of the attack.' That implies not that he can act upon a state of case where there is a bare conception of fear, but that there must exist that which is either really or apparently an act of violence, and from that the inference may reasonably be drawn that there was deadly danger hanging over Acers, in this case, at that time."

These are all the matters complained of. We see no error in the rulings of the court, and, therefore, the judgment is

No. 64. Submitted October 27, 1896. Decided November 30, 1896.

The complaint in this case charged that the Atchison, Topeka and Santa Fé Company and the plaintiff in error, corporations of the State of Massachusetts, were, at the time of the injury complained of, jointly operating a railroad; that the defendant was travelling upon it with a first class ticket; and that by reason of negligence of the defendants an accident took place which caused the injuries to the plaintiff for which recovery was sought. The answers denied joint negligence, or joint operation of the road, and admitted that the plaintiff in error was operating it at the time. A trial resulted in a verdict in favor of the Atchison Company and against the plaintiff in error. On the trial the complaint was amended by substituting "second class" for "first class" ticket, and that the charters were by acts of Congress, and to the complaint so amended the statute of limitations was pleaded. A judgment on the verdict was set aside and an amended complaint was filed in which the plaintiff in error was charged to have done the negligent acts complained of, and recovery was sought against it. A second trial resulted in a verdict against the company. Held,

(1) That the action was ex delicto; that the defendants might have been sued either separately or jointly; that recovery might have been had, if proof warranted against a single party; and that the amend

Statement of the Case.

ment, dismissing one of two joint tort feasors, and alleging that the injury complained of was occasioned solely by the remaining defendant, did not introduce a new cause of action;

(2) That the amendment stating that the plaintiff' was travelling upon a second class ticket instead of a first class ticket, and that the plaintiff in error was chartered by an act of Congress instead of by a statute of Massachusetts, as originally averred, did not state a new cause of action.

THE action below was originally brought in a state court in California against the plaintiff in error and the Atchison, Topeka and Santa Fé Railroad Company to recover damages for personal injuries sustained on November 3, 1890, by the derailment of a train of cars upon which the plaintiff was a passenger. It was alleged in the complaint that each of defendants was a corporation of the State of Massachusetts; that they jointly owned and operated a described line of railroad; that plaintiff was a passenger on one of the trains coming westward on said line of railroad, holding and travelling upon a first class ticket entitling her to travel between named stations, and the liability of the defendants was claimed to arise by reason of alleged negligence, both in the construction of the road and in the management of the train. Upon the several applications of the defendants, the cause was transferred to the Circuit Court of the United States for the Southern District of California. In that court answers were filed denying that the defendants were jointly guilty of the negligence complained of or that they jointly operated the line of railroad described in the complaint, but admitting that the defendant, the Atlantic and Pacific Railroad Company, was operating the road. The cause was tried for the first time in November, 1892, and resulted in a verdict for plaintiff against the Atlantic and Pacific Railroad Company, and in favor of the Atchison Company. On the trial the plaintiff was allowed to amend her complaint by alleging that the ticket upon which she was travelling was a "second class' ticket instead of, as alleged in the original complaint, a "first class" ticket. To the cause of action stated in the complaint as thus amended the defendants pleaded a statute of limitations of two years. Judgment was entered on the verdict.

Opinion of the Court.

but this judgment was subsequently set aside, with leave to the plaintiff to amend her complaint. On February 7, 1893, a second amended complaint was filed, in which the Atlantic and Pacific Railroad Company was charged to have owned and operated the line of railroad in question, and to have done the negligent acts averred in the original complaint. An attack upon this pleading was made in the trial court by motion to strike from the files, by demurrer, by motion for judgment upon the pleadings, and by special requests for directions to the jury upon the second trial of the case. The ground of all such attacks was that the pleading set up a new cause of action, against which the statute of limitations had run at the time of the filing of such pleading. The cause was tried for the second time in April, 1893, and a verdict was again rendered against the Atlantic and Pacific Railroad Company. A judgment upon such verdict was subsequently affirmed by the Circuit Court of Appeals. 15 U. S. App. 248. By writ of error such judgment of affirmance was brought to this court for review.

Mr. A. T. Britton, Mr. A. B. Browne and Mr. C. N. Sterry for plaintiff in error.

Mr. George H. Smith, Mr. Frank H. Short and Mr. Edwin A. Meserve for defendant in error.

MR. JUSTICE WHITE delivered the opinion of the court.

It is not controverted that under section 339 of the Code of Civil Procedure of California a cause of action of the character of that set forth in the various complaints filed on behalf of plaintiff was required to be instituted within two years after the cause of action accrued.

The question to be determined, therefore, is whether the trial court erred in holding that the amendments effected by the second amended complaint did not set up a new cause of action; for, if the second amended complaint stated a distinct and independent cause of action, the bar of the statute

Opinion of the Court.

should have been allowed to prevail. Union Pacific Railway Company v. Wiley, 158 U. S. 285.

The contention of the plaintiff in error that there was a departure resulting from the amended petition is based upon two propositions: 1, that the parties defendant in the original complaint were sued jointly ex quasi contractu, and were liable only upon proof of a joint contract, whilst the amended petition proceeded upon a contract made only by one and a different person than those originally sued; and, 2, because certain averments in the petition as to the place of incorporation of plaintiff in error and as to the character of ticket upon which the plaintiff travelled changed the cause of action. We will discuss these two contentions separately.

1. Was the action stated in the original complaint one against the defendants as distinct and separate corporations, or against them as a single entity or artificial being, and what was the nature of the cause of action?

It is urged by the plaintiff in error that as the complaint, after alleging that the defendants jointly owned and operated the line of road in question and jointly committed the alleged negligent acts, charged that they together "were a common carrier of passengers on said road," that such allegation must be construed as an averment that the defendants were a single company, and that it cannot be assumed that one or the other, by itself, had capacity to violate any duty of a common carrier of passengers, or that either had power to sue or be sued separately and alone from the other.

This construction of the complaint is obviously a forced and unnatural one. In the caption of the complaint the two defendants were designated as distinct corporations and several defendants, while in separate paragraphs each defendant was alleged to be a corporation, duly incorporated under the laws of the State of Massachusetts, and having its principal place of business outside of the State of California. Soon after the filing of the complaint each defendant presented its separate application for removal of the cause to the Federal court. In that of the Atchison, Topeka and Santa Fé road it was averred that it was a corporation organized, existing

Opinion of the Court.

and doing business under and by virtue of the laws of the State of Kansas. The Atlantic and Pacific Company averred in its application that it was a corporation duly created, organized and existing under an act of Congress, which, it was expressly alleged, authorized it to construct and operate, as a common carrier of passengers and freight, certain described lines of railroad, including the line of railroad upon which plaintiff received her injury. The answer filed on behalf of the defendants was "joint and several," and it was therein admitted that the defendant, the Atlantic and Pacific Company, plaintiff in error here, was operating the line of railroad in question. The case presented by the complaint, giving to the language employed the reasonable inferences which it should receive, was one where each of two corporations was proceeded against as a common carrier of passengers, exercising their respective corporate powers concurrently, the two corporations acting together, just as several individuals might

have done.

Looking then to the averments of the complaint, we find it stated that the defendants, as common carriers, jointly owned and operated a described line of railroad; that on November 3, 1890, the plaintiff was a passenger on a train of cars then being run by the defendants, which train was derailed and thrown from the track and the plaintiff injured. Was this an action ex quasi contractu as now claimed?

Before proceeding to answer this question, we observe that it seems manifest, from the attacks originally made upon the amended complaint, that this claim is an afterthought. The motion to strike from the files, demurrer, answer and motion for judgment upon the pleadings proceeded upon the assumption that the cause of action stated in both complaints was subject to a limitation of two years, whereas it did not appear upon the face of the complaint, but that the agreement, if any, made by the alleged contract was entered into in the State of California, in which event the statutory limitation for commencing the action would have been four years. The fact that a written contract was executed in Ohio, which it is claimed was established on the