Seipel v. B. & C. V. R. Extension Co. , 129 Pa. 425 ( 1889 )

Opinion,

Me. Justice McCollum : .

It is not necessary to inquire whether the act of April 17, 1866, P. L. 106, was broad enough to include this litigation, as that act was abrogated by § 21 of article III. of the constitution of 1874: Grape St., 103 Pa. 121. As the statute of limitations of March 27, 1713, has no application to a proceeding for the assessment of damages occasioned by the construction of a railroad, it follows that Mrs. Seipel’s right of action against the railroad company was not barred when the amendment was allowed: Del. etc. R. Co. v. Burson, 61 Pa. 369; Hannum v. West Chester Bor., 63 Pa. 476. The objection to the amendment rested upon a supposed bar of Mrs. Seipel’s right by the act of April 17, 1866, and it was not well taken:

The amehdment was properly allowed. It was authorized by the act of May 4, 1852, P. L. 574, and did not introduce a new cause of action, or deprive the company of a meritorious defence or substantial right. We may add that the question whether a claim is barred by a statute of limitations applicable to it, is ordinarily for the jury, upon the evidence and under instructions from the court. If the act of 1866 was in force and included this cause of action, it would be for the jury to ascertain, from evidence, when the entry for construction was made and when the road was in operation. These questions are not for the court on a motion to amend. When the sole objection to a proposed amendment is, that it will deprive the opposite party of a defence under the statute of limitations, it is proper practice to allow the amendment and leave the party to a prayer for instructions as to its effect upon his rights under the statute, when the evidence is closed: Haul v. Lawrence, 73 Pa. 410.

For the reasons briefly stated in Duke v. Railroad Co., just decided, no error was committed by the court in rejecting the offer of the borough ordinance of September 23, 1880.

Judgment affirmed.