It is admitted that the defendant is a common carrier-engaged in interstate commerce and that the plaintiff was employed in such commerce at the time of his injury. It was therefore necessary and essential to allege a cause of action under the Employers’ Liability Act, because the Federal statute is exclusive and supersedes the right of action under the State law. Mondou v. R. R., 223 U. S., 1; R. R. v. Wulf, 226 U. S., 510; and R. R. Co. v. Hayes, 234 U. S., 86.
- In the last case the Court says, “Had the injury occurred in interstate commerce, as was alleged, the Federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the State; in other words, the Federal act would have been exclusive in its operation, not merely cumulative”; citing for this position, among others, the Mondou case, which says of the Employers’ Liability Act: “And now that Congress has acted, the laws of the States, in so far as they cover the same field, are superseded.”
We must then examine the original complaint for the purpose of seeing if it alleges a cause of action under the Federal act, and, if not, must inquire into the power of the court to allow the amendment.
This presents a question of pleading and practice under the laws of this State, as the Supreme Court of the United States has said in Brinkmeier v. R. R., 224 U. S., 268, in reference to an assignment of error on account of an amendment to a pleading: “Error is assigned upon this ruling; but as it involved only a question of pleading and practice under the laws of the State it is-not subject to review by us,” and there are many other cases to the same effect.
When we turn to our statutes we find it is provided by section 515 of the Eevisal that “No variance between a pleading and the proof shall be deemed material unless it has actually misled the ' adverse party to his prejudice in maintaining his action upon the merits,” and *136by section 495, that “In the construction of a pleading for tbe purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.”
These statutes were considered in Blackmore v. Winders, 144 N. C., 215, and it was there held, with reference to a pleading, that “If it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause’ of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader,” and this was approved in Brewer v. Wynne, 154 N. C., 467.
If this rule of construction is applied to the original complaint and it is construed in the liberal spirit contemplated by the Code, it alleges a cause of action under the Federal statute.
It must be kept in mind that the plaintiff was employed in interstate commerce at the time of his injury by an interstate carrier, and that he had no cause of action except under the Federal statute, because, as we have seen, it had the effect of superseding the State laws.
The original complaint alleges that the plaintiff was injured by the negligence of the defendant and that this caused him damage, which he prays the court to award him. He could not be entitled to recover damages except under the Federal statute. He alleges further that the defendant was operating a line of railway in the States of North Carolina and Virginia, and this made it an interstate carrier. There is no reference in the complaint to the fact that the defendant did an intrastate business. The plaintiff alleges further that he was in the employment of the defendant, presumably in the interstate business which the defendant was conducting. He says further that he was in the discharge of the duties of his said employment at the time of his injury and that he lived in "Wake County, N. C., and was injured in Cochran, Va.
As there is no reference to intrastate business in the complaint, and it is alleged that the defendant was doing an interstate business, that he was injured while in the discharge of his employment, is not the inference permissible and reasonable that he was employed in interstate business and was injured in the discharge of his duties in that employment? If, however, the original complaint does not allege a cause of action under the Federal act, we are of opinion that the court had the *137power to permit it to be amended by alleging that tbe defendant was employed in interstate commerce at tbe time of bis injury.
We must again have recourse to our own statutes and decisions, and we find that “Any pleading may be once amended of course, without cost and without prejudice to tbe proceedings already bad, at any time before tbe period for answering it expires; or it can be so amended at any time, unless it be made to appear to tbe court that it was done for tbe purpose of delay, and tbe plaintiff or defendant will thereby lose tbe benefit of the term for which tbe cause may be or is docketed for trial” (Eev., sec. 505), and that “Tbe judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out tbe name of any party, or by correcting a mistake in tbe name of a party, or a mistake in any other respect, or by inserting other allegations material to the case." Eev., sec. 507. (Italics ours.)
. These sections of tbe Eevisal bave been very fully considered in Ladd v. Ladd, 121 N. C., 118; Lassiter v. R. R., 136 N. C., 93; Bank v. Duffy, 156 N. C., 87, and in other cases, and tbe distinction is drawn between a defective statement of a cause of action which may be amended and tbe statement of a defective cause of action which cannot be amended.
In tbe Lassiter case tbe Court says: “Tbe difference between a defective statement of a good cause of action which can be amended by inserting other material allegations and a statement of a defective cause of action is that tbe latter cannot be made a good cause by adding other allegations.”
If this is a correct statement of tbe law, it is conclusive upon tbe power of tbe court to amend tbe complaint by allowing an additional allegation to be made, as tbe original complaint with tbe amendment admittedly states a good cause of action under tbe Federal statute. R. R. v. Wulf, 226 U. S., 570, seems to be decisive of tbe right to amend. In that case Sallie O. Wulf commenced an action in tbe Circuit Court of tbe United States in tbe Eastern District of Texas, in her individual capacity to recover damages for tbe death of her son who was killed in Kansas, and she alleged in her original complaint that in tbe State of Kansas a right of action was provided by statute for injuries resulting in death. Tbe defendant was engaged in interstate commerce and tbe intestate was killed while employed in that commerce. Tbe plaintiff could not sue in her individual capacity under tbe Federal act. More than two years after tbe injury tbe Circuit Court permitted an amendment by which she was allowed to prosecute the action as administra-trix of her son. Tbe Supreme Court of tbe United States approved tbe amendment and held that it was not equivalent to the commence*138ment of a new action so as to render it subject to tbe two years limitation prescribed by section 6 of tbe Employers’ Liability Act, and tbat tbe amendment related back to tbe beginning of tbe action.
R. R. v. Wyler, 158 U. S., wbicb is relied on by defendant, is commented upon in tbe Wulf case and distinguished, and it was pointed out tbat in tbe Wyler case tbe amendment introduced a new .and distinct cause of action, while in tbe case before us there is but one cause of action, and if tbe original complaint was defective it is only because of tbe absence of one allegation necessary to a complete and perfect statement of a cause of action.
Tbe Employers’ Liability Act confers concurrent jurisdiction upon tbe State courts for tbe trial of causes of action arising thereunder and, instead of prescribing tbe practice and procedure for tbe State courts, it is provided in another act of Congress as to actions at law in tbe Federal courts (and this falls within tbat class), tbat “Tbe propriety of amendments to pleadings in tbe Circuit and District Courts of tbe United States is governed by tbe provisions of section 1914 of tbe Revised Statutes to tbe effect tbat: Tbe practice, pleadings and form and mode of proceeding in civil causes other than equity and admiralty causes in tbe Circuit and District Courts shall conform as near as maybe to tbe practice, pleadings and form and mode of proceeding existing at tbe time in like causes in tbe courts of record of tbe State within wbicb such Circuit or District Courts are held, any rule of court to tbe contrary notwithstanding. 1 Ency. U. S., 298.”
If, therefore, tbe action bad been commenced in a court of the United States tbe power would have existed of “inserting other allegations material to tbe case” in conformity with our statute (Rev., sec. 507), and this power cannot be less when tbe action is brought in tbe courts of tbe State.
If a proposed amendment cannot be allowed because material and necessary to tbe statement of a cause of action, tbe power of amendment, wbicb Mr. Justice Swayne says, in Tilton v. Cofield, 93 U. S., .... “is incidental to tbe exercise of all judicial power and is indispensable to tbe ends of justice,” becomes useless and of no effect, as an amendment need not be made if not material.
We therefore conclude tbat tbe court bad tbe power to allow the amendment, and this also disposes of tbe exception to tbe charge upon tbe sixth issue because tbe amendment related back to tbe commencement of tbe action, wbicb was brought witbih two years from tbe time of tbe injury.
Tbe defendant also relies, in bis motion for nonsuit, upon tbe contention tbat there is no evidence of negligence, and this necessitates an examination of tbe duty imposed upon tbe employer and whether tbe *139evidence discloses a failure to perforin that duty, which proximately caused the injury to the plaintiff.
In R. R. v. Horton, 233 U. S., 492, the Court says: “The common law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence is exercised, to the end that the place in which the work is to be performed and the tools and appliances for the work may be safe for the workmen,” and concludes that the Employers’ Liability Act has not changed this rule of liability.
It being, then, the duty of the defendant to furnish the plaintiff a reasonably safe place in which to do his work, and the authorities are all to this effect, is there any evidence that it failed in the performance of this duty?
The plaintiff was injured at night and he testifies that he was exercising due care for his own safety. He had not been about the premises, where he was injured on the day of the injury until he was injured.
There is evidence that an employee of the defendant whose duty it was to pump water into the tank'unnecessarily permitted the pump to continue working after the tank was full, and that this caused water to-pour out upon the path over which the plaintiff was required to go in the performance of his duties; that this continued for such a length of time that a solid sheet of ice formed across the path; that the ice was smooth, slippery and dangerous, that the weather was very cold and that it might be reasonably anticipated that ice would form where the water fell; that this continued during the day before the plaintiff was injured and that the ice could have been easily removed; that a sufficient work force was present and available to remove the ice, and •that it did not do so; that this work force had removed ice from the pathway nearer to the station than the place where the plaintiff was injured; that the ice was covered with snow which concealed its presence from the plaintiff. This furnished some evidence that the defendant had failed in the performance of its duty to provide a reasonably safe place for the plaintiff to work, and the evidence further shows that the plaintiff was injured by the failure to perform this duty. We therefore conclude that the judgment of nonsuit was properly overruled.
The charge of his Honor as to the duty of the defendant to provide a safe place is substantially taken from the Horton case, which we have before cited, and the same case sustains the ruling refusing to direct a verdict in favor of the defendant on the issue of assumption of risk. In that case the Court says: “Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in *140fixing the rate of wages, and a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.”
His Honor followed this statement of the law, quoting this language from the opinion, and saying further: “If, by the exercise of ordinary care and prudence (it was the duty that he owed), he could have seen that the ice had accumulated at that place, and could have become aware that there was risk in walking over it, then he would be charged with such facts as the exercise of such ordinary care would have disclosed to him, and if you are satisfied that they would have disclosed to him that the ice was there and that it was slippery, then you will find that he has assumed the risk of the injury in passing over it, and in that event you would answer the second issue ‘Yes.’ ” And again, “That the plaintiff in his employment, fixing pumps for the defendant, and in going from place to place in the performance of his duty, assumed the risk which inclement weather added to his employment, and if you find by the greater weight of the evidence that the plaintiff slipped on the ice or snow, which resulted solely from the inclement weather conditions, and that the same were not negligently left on the path over which he was traveling, if he was traveling over the path, you will answer the issue of assumption of risk, the second issue, ‘Yes.’ ” And again, “If you find from the evidence, by the proponder-. anee thereof, that the plaintiff knew of the existence of the ice at the place where he fell, or by the exercise of care, the care of a prudent man, could have knowledge of its existence at that point, he assumed the risk of injury from slipping thereon, and you will answer the issue of assumption of risk, which is issue N>. 2, ‘Yes.’ ”
This complies with the rule laid down in the Horton case, because, if the evidence of the plaintiff is true, the condition of the place where the plaintiff was injured was not normal, but was unusual, and the plaintiff could not discover it by the exercise of ordinary care.
The witness Parks was asked: “Why was the tank running over?” Objection by the defendant. Objection overruled; defendant excepted. He replied: “Because the pumper was neglecting his duty and let it continue to run after the tank was full.” We do not approve of the expression, “because the pumper was neglecting his duty,” and doubt*141less if defendant bad moved to strike tbis out as an expression.of opinion tbe motion would bave been granted, but tbe motion to strike out was made upon another ground and one wbieb is not tenable — tbat tbis particular act of negligence was not alleged in tbe complaint, and it is well settled tbat “Where a party states tbe ground of bis objection to evidence below be cannot rely upon a different ground in tbis Court.” Ludwiclc v. Penny, 158 N. C., 113.
In Presnell v. Garrison, 122 N. C., 595, Furches, J., says: “But as a wrong reason was assigned for tbe objection, we treat tbe case as if no objection bad been taken”; and Rollins v. Henry, 78 N. C., 342; Kidder v. McIlhenny, 81 N. C., 123, and Jones v. Call, 93 N. C., 179, support tbe same rule.
It was not necessary to allege tbe negligent act of permitting tbe tank to run over, in tbe complaint, because tbe negligence relied on is tbat tbe defendant did not provide a safe place for tbe plaintiff to work, and evidence tbat tbe tank ran over was competent under tbis allegation for tbe purpose of showing tbat tbe ice did not form across tbe path from natural causes.
If, however, bis Honor bad been asked to strike out tbe answer of tbe witness upon tbe ground tbat it was an expression of opinion, bis refusal to do so would not bave constituted reversible error, because when tbe answer is considered as a whole and in connection with tbe context it amounts to no more than a statement that tbe pumper permitted tbe pump to continue to run, and tbe tank ran over, which is a fact and not an opinion.
Tbe plaintiff while on tbe witness stand was asked: “Did you cause your own fall in any way?” Objection by tbe defendant; objection overruled; defendant excepted; and be replied: “No, I did not. I was just as careful walking as I could be.” Phifer v. R. R., 122 N. C., 940, is authority for tbe position tbat tbe latter part of tbe answer is objectionable as an expression of an opinion, but tbe later cases and tbe trend of authority elsewhere are tbat it is competent as a statement of a fact. Taylor v. Security Co., 145 N. C., 385; Britt v. R. R., 148 N. C., 40; S. v. Leak, 156 N. C., 647 ; 3 Wig. Ev., sec. 1938; McKelvey Ev., p. 220.
Professor Wigmore says, vol. 3, sec. -1949: “Tbis topic is one of tbe few upon which there has ever existed in tbe English precedents any foundation for doubt. Tbe subject of tbe testimony in question is manifold; sometimes it is whether'proper care was taken, sometimes whether action was reasonable, sometimes whether sufficient skill was shown, sometimes whether a place or a machine was safe; but all tbe forms seem reducible to a general one, namely, whether a certain standard of conduct was observed. Looking first at tbe orthodox practice in *142England, it is clear there is not and never has been any real question as to the propriety' of such testimony. The morbid and doctrinaire theory of cautiousness which is the foundation of the American rulings has never been known at the English bar.” He speaks of the rule of exclusion as a “modern excrescence on the common law” and concludes that such evidence is competent.
Mr. MeKelvey, in a passage quoted with approval in S. v. Leah, says: “The instantaneous conclusions of the mind as to1 the appearance, condition, or mental or physical state of persons, animals and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence. A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase, ‘matter of fact/ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact, as if he testified, from evidence presented to his eyes, to the color of a person’s hair, or any other physical fact of like nature. This class of evidence is treated in many of the cases as opinion admitted .under exception to the general rule, and in others as matter of fact — ‘shorthand statement of fact’ — as it is called. It seems more accurate to treat it as a fact, as it embraces those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts.”
In S. v. Williams, 168 N. C., 195, expressions in dying declarations “I did nothing,” “He cut me for nothing,” “They had no occasion to shoot me,” “I have done nothing to be shot for,” are considered as statements of facts and not opinions. If, however, the evidence was objectionable it could have had but little, if any, bearing upon the issue, because the plaintiff described his conduct in detail and showed he was Careful, and there was no evidence to the contrary.
We might also dispose of the exception upon the ground that it was competent for the witness to say he did not cause his own fall, and if the answer went beyond the question the remedy of the defendant was to move to strike out. Caton v. Toler, 160 N. C., 106.
The judges of the Superior Court should be careful in the application of this principle to see that opinions are not admitted under the guise *143of facts, and usually it is better aud wiser to require tbe witness to state tbe circumstances surrounding tbe transaction and no more.
We have carefully considered tbe whole record and find no error.
No error.