dissenting: 1. Tbe original complaint in tbis case does not state a cause of action under tbe Federal Employers’ Liability Act. Tbe argument tbat it does state sucb a cause of action is tbe same argument advanced in tbe first employers’ liability case, Howard v. R. R., 207 U. S., 463, and was rejected by tbe United States Supreme Court. It was beld tbat tbe Federal Employers’ Liability Act of 1906 was unconstitutional because it embraced all of tbe employees of a carrier engaged in interstate commerce, wbetber tbe employees were employed in sucb commerce at tbe time of their injury or not. Congress tben passed tbe act of 1908 and limited it to employees wbo are killed or Avbo are injured while employed in interstate commerce. Tbe most essential part of a cause of action under tbe statute is tbe cbaracter of tbe employment in wbicb plaintiff was engaged at tbe time of bis injury. It makes no difference tbat tbe employer is a carrier engaged in interstate commerce, unless tbe injured employee was employed in sucb commerce at tbe time of bis injury. In Brinkmeier v. R. R., 224 U. S., 268, tbe terms of tbe act in question were sucb tbat its application depended, first, upon tbe carrier being engaged in interstate commerce by railroad, and, second, upon tbe use of tbe car in moving interstate traffic. It did not embrace all cars used on tbe line of sucb carrier, but only sucb as were used in interstate commerce. Mr. Justice Van Devanier, writing tbe opinion of tbe Supreme Court of tbe United States, says:
“Tbis was an action to recover for personal injuries sustained by a brakeman while coupling two freight cars on a sidetrack of tbe defendant railway company at Hutchinson, Kansas. Tbe defendant prevailed in tbe State courts (81 Kan., 101, 105 Pac., 221), and tbe plaintiff brings tbe case here. Tbe injury occurred 12 November, 1900, and tbe action was begun 15 March, 1901.
“The question first presented for decision is wbetber tbe petition stated a cause of action under tbe original safety appliance act of 2 March, 1893, 25 Statutes at Large, 531, chapter 196, United States Compiled Statutes, 1901, page 3174, wbicb made it unlawful for any common carrier engaged in interstate commerce by railroad ‘to haul or permit to be hauled or used on its line any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact,’ etc. Tbe petition, if literally construed, charged tbat defendant was a common carrier engaged in interstate commerce by railroad; tbat tbe cars in question were not equipped with' couplers of tbe prescribed *144type, and that tbe plaintiff’s injuries proximately resulted from tbe absence of sucb couplers; but there was no allegation that either of the cars was then or at any time used in moving interstate traffic. The Supreme Court of the State held that in the absence of such an allegar tion the petition did not state a cause of action under the original act. We think that ruling was right.”
It would seem unnecessary to refer to other authorities in support of the propositions, first, that the construction of this complaint for the purpose of determining whether it states a cause of action under the Employers’ Liability Act is a Federal question, and not subject to control by State statutes and the decisions of State courts; and, second, that the complaint does not state a cause of action under the Federal act. Reliance by the Court upon the language quoted from the Brink-meter case to support the conclusion that this is not a Federal question results from a misunderstanding of the language used and its effect. Plaintiff brought suit in 1901, alleging a cause of action under the State law. In 1908 he proposed to amend so as to bring the action under the Federal safety appliance act. The Kansas 'court held that this amendment could not be made, the period of limitation having expired in the meantime. The Supreme Court of the United States said that this ruling involved only a question of pleading or practice under the laws of the State. If the Federal safety appliance act is examined, the reason for this statement will become apparent. That act contains no limitation whatever as to time within which an action based upon its provisions must be brought. The period of limitation referred to by the Kansas court and by the Supreme Court was the limitation fixed by the law of Kansas, and neither the plaintiff nor defendant could have been deprived of a right arising under a Federal statute by the ruling of the Kansas court permitting the amendment. In the case before us the Federal act limits the time. There “can be no doubt that the United States Supreme Court will review the ruling of a State court which deprives a defendant of the benefit of this provision of the act.
In Thornton’s Federal Employers’ Liability Act (2d edition), sec. 140, it is said: “The true rule is that if the declaration or complaint does not disclose the action is based or grounded upon the statute, then the plaintiff is not seeking to recover for an injury received while engaged in interstate traffic of the defendant, and the sufficiency of his pleading must be measured by the general State law, the provisions of the statute not being involved. However, if the evidence discloses the case is one under the statute, there will be a fatal variance and the plaintiff must fail.”
The conclusions in the opinion that the complaint sufficiently alleges that the plaintiff was employed in interstate commerce are drawn from *145these facts: An employee of an interstate carrier who lives in Wake County, North Carolina, is injured while at work in Cochran, Va. If this conclusion is justified the test for the application of the statute would be, not the character of the employment, but the place of residence of the employee. If the inference is permissible, as is suggested, that plaintiff was employed in interstate commerce when injured, he would have required proof of no other facts than those alleged in order to recover under the Federal act. Can it be possible that any court would hold that proof of the facts alleged, and no more, would show a case triable under th6 Federal act to the exclusion of the State law?
2. The court had no power to allow the amendment because it sets up a new cause of action, which is barred by the two-year period of limitation fixed by the Federal act.
This is a Federal question, involving the enforcement of one of the most important features of the Federal Employers’ Liability Act, and in looking to our statutes and decisions as the means of depriving the defendant of the benefit of the limitation period provided by section 6 of that act, I think the Court is going astray. But if we look to our statutes and decisions, there is every authority for holding that the allowance of this amendment was erroneous.
It will be found that section 507 of the Revisal does not end with the language quoted in the opinion, but contains this further provision, which is the part particularly applicable to this case: “Or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact, proved.” The plaintiff was permitted to amend his complaint to conform to the facts proved, and the statute by. strongest implication prohibits this when, as here, the amendment changed substantially the claim and the defense.
It is true that we have held that a defective statement of a good cause of action may be amended, but such decisions cannot be applied in this ease. This is not a defective statement of a good cause of action. It is a perfect statement of a cause of action good at common law and under the State statute. The fact that plaintiff did not have the cause of action which he pleads does not make his plea defective. The Court fails to note the distinction between the cause of action which arose in favor of plaintiff and the cause of action which he sets forth in his complaint. Defective statement of a good cause of action may be taken advantage of by demurrer. Would this Court seriously consider a demurrer to the original complaint in this action ? It is lacking in none of the essentials of a cause of action, and a demurrer would have been overruled without argument. It is true, as the Court says, that the original complaint with the amendment states a good cause of action under the Federal statute, and that is the very basis of the defendant’s *146objection, that it does so after the right of action under the statute has expired. But it does not follow that the original complaint contained a defective statement of the same cause of action rather than a good statement of a different cause of action.
It has been the long established rule in this State that where by an amendment a new charge is introduced against the defendant, he may make such defenses to it as if it were the foundation of an action then newly begun. Christmas v. Mitchell, 38 N. C., 535; Cogdell v. Exum, 69 N. C., 464; Patterson v. Wadsworth, 89 N. C., 407; Gillam v. Insurance Co., 121 N. C., 369. “Amendments are not admissible where the effect would be to prejudice acquired interests, or take away any defense which could be made to an action begun at the time of the amendment.” Henderson v. Graham, 84 N. C., 496.
“Where the cause of action is changed by an amended complaint, the defendant-has the right to set up in the answer thereto any legal defense, including the statute of limitations, just as if the action had been commenced at the date of the amended complaint.” Sams v. Price, 121 N. C., 392.
In Bennett v. R. R., 159 N. C., 345, we said: “While courts are liberal in permitting amendments, silch as are germane to a cause of action, it has been frequently held that the court has no power to convert a pending action that cannot be maintained into a new and different action by the process of amendment. Best v. Kinston, 106 N. C., 205; Merrill v. Merrill, 92 N. C., 657; Clendennin v. Turner, 96 N. C., 416. In the last case it is said: ‘The court has no power, except by consent, to allow amendments, either in respect to parties or the cause of action, which will make substantially a new action, as this would be not to allow an amendment, but to substitute a new action for the one pending.’ ” Hall v. R. R., 146 N. C., 345.
The Federal Employers’ Liability Act gives a cause of action separate and distinct from the common-law cause of action and the cause of action created by our Revisal, sec. 2646. R. R. v. Horton, 233 U. S., 492. A cause of action not previously existing was created by the Federal act. In Taylor v. Taylor, 232 U. S., 363, the Supreme Court says: “The Federal Employers’ Liability Act is more than a statutory declaration of the remedy to be pursued; it is the ‘source of his (the employee’s) right.’ ” In R. R. v. Behrens, 233 U. S., 473, Mr. Justice Van Devanter says: “There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce.” See, also, Pedersen v. R. R., 229 U. S., 150; R. R. Co. v. Craft, 237 U. S., 648; Mondou v. R. R., 223 U. S., 1; R. R. v. Vreeland, 227 U. S., 59.
*147If, as is held by the Supreme Court of the United States, the effect of this statute was not to create a new remedy for an existing cause of action, but to create a new cause of action, then it follows necessarily that it is not the same cause of action as that existing at common law and under the statute of this State, and, in introducing this cause of action by way of amendment, the plaintiff cannot avoid the requirement that suit to enforce such cause of action must be brought within two years after the cause of action accrued. Our decisions, which I have cited, seem to conclusively support the defendant’s position in this case. But, as I have said, this is not a State but a Federal question, and must be controlled by the decisions of the United States courts. R. R. v. Wyler, 158 U. S., 293, seems to me to be directly in point against the plaintiff’s right to amend his complaint. In that case the original complaint set forth a cause of action under the general law of master and servant. The amendment declared under a State statute regulating such action. It was held that this amendment could not be permitted because it constituted a departure in pleading and set up a new cause of action. The principles laid down in this case have been accepted everywhere, and the United States Supreme Court has had frequent occasion to reexamine the case, and its correctness has never been questioned. R. R. v. Laird,, 164 U. S., 396; United, States v. Dalcour, 203 U. S., 408, 423; R. R. v. Wulf, 226 U. S., 570; R. R. v. Hesterly, 228 U. S., 703.
An examination of the Wulf case, 227 U. S., 570, will show that it is not decisive of the right to amend in this ease. From the institution of the Wulf case, it was contended, and appears in the original complaint, that the plaintiff’s intestate was employed in interstate commerce at the time of his death. The allegation is that the deceased at the time of his death was “in the employ of the defendant as a locomotive fireman and in the performance of his duties as such upon a train bound from Parsons, in the State of Kansas, to Osage, in the State of Oklahoma.” The amendment permitted merely changed the character in which plaintiff sued from her individual capacity to administratrix. The Supreme Court of the United States held that this was a change in form and not in substance and did not change the cause of action as originally alleged. The Court said in the opinion that in the original and amended petitions “It was sufficiently averred that deceased came to his death through injuries suffered while he was employed by the defendant in interstate commerce. In Bactillo v. Commission Co., 131 Fed., 680, cited in the Wulf case, the rule of the Federal courts in respect to amendments is stated as follows:
“An amendment to a petition, which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the *148allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the State, a plaintiff is only required to state the facts which constitute his cause of action.”
It is clear that the Wulf case and the Wyler case are not in conflict. In R. R. v. Hesterly, 278 U. S., 703, it is said:
“The plaintiff, not the defendant, had the election how the suit should be brought, and as he relied upon the State law, the defendant had no choice, if it was to defend upon the facts. Whether the defendant could have defeated the first count also on the ground that the plaintiff was suing upon a statute of one jurisdiction, whereas the action could be maintained only on that of another, need not be decided, since the defendant asks reversal of only so much of the judgment as rests on the second count. Hence it is unnecessary to consider whether the principle of R. R. v. Wyler, 158 U. S., 285, 39 L. Ed., 983, 15 Sup. Ct. Rep., 877, or that of R. R. v. Wulf, 226 U. S., 570, 577, 57 L. Ed. ..., 33 Sup. Ct. Rep., 135, should be applied.”
In Morrison v. R. R., 40 App. Cas., D. C., 391, which is in point, it is said: “The original complaint herein invoked the rule of the common law as a ground of action. The attempt of the plaintiff more than one year after the alleged bad faith of the defendant to invoke a different rule, namely, the rule prescribed by the act of 1906, must be held to amount to the commencement of a new action. The change was one of substance and not merely of form. R. R. v. Wyler, 158 U. S., 285. It is unnecessary, therefore, to determine the effect of an excuse seasonably pleaded, for failure to bring the suit within the statutory period.” Moliter v. R. R., 168 S. W., 250, is in point and supports the defendant’s position. It was there admitted that plaintiff was employed in interstate commerce by a carrier engaged in such commerce. It appeared that plaintiff failed to plead facts bringing his action under the Federal act, and proposed to amend, after verdict, so as to include the necessary allegations. The Court refused the amendment, and says:
“Plaintiff’s action, as stated in his pleading, being either under the common law or the statute of Missouri, and not under the Federal statute, he cannot recover under the latter statute without changing his cause of action from law to law; and that we decided in McAdew v.
*149R. R., supra, be could not do. See, also, R. R. v. Wyler, 158 U. S., 285, 15 Sup. Ct., 877, 39 L. Ed., 983; R. R. v. Seale, 229 U. S., 156, 33 Sup. Ct., 651, 57 L. Ed., 1129.
“Plaintiff’s contention is tbat, if tbe evidence showed bis right of action was under tbe Federal statute, be could recover, although no facts constituting such action were pleaded, and although he did not submit the case to the jury under that statute. That idea is no less than a claim that a pleading does not bind the pleader, and indeed is unnecessary, since a recovery may be had for the violation of any right which the evidence may disclose. . . . But it is said that, conceding the error herein pointed out, judgment should nevertheless be affirmed and the cause remanded, to the end that the petition be amended to conform to the proof. We think there is no authority for such course.- The defense in plaintiff’s case is not a mere variance; it is a total failure to prove the cause of action alleged. ‘In short, the case pleaded was not proved, and the case proved was not pleaded.’ R. R. v. Seale, 229 U. S., 161. This is made manifest by the suggestion that, under plaintiff’s petition, contributory negligence does not affect the measure of his damages and only goes to defeat the action, while under the Federal statute it does not defeat the action, but does affect the measure of damages.”
In Allen v. R. R., 229 Pa., 97, it is held that a complaint stating a cause of action under the State law cannot be amended, after the limitation period has expired, so as to charge that defendant failed to comply with the Federal Safety Appliance Act.
The Court says: “It is also true that if, as claimed by the plaintiff, all the facts necessary to sustain a recovery on the amended statement were set forth in the original statement, the amendment would still be a change or departure from the original statement, not from fact to fact, but from law to law; from an action founded on the common law to one founded on a statute abrogating the common law, which is equally effective to prevent an allowance of the amendment. In such case the plaintiff bases his right of recovery upon other and different law, instead of other and different facts, and it constitutes a departure from the original cause of action. R. R. v. Wyler, 158 U. S., 285, 39 L. Ed., 983, 15 Sup. Ct. Rep., 877; R. R. v. Hurd, 56 L. R. A., 193, 47 C. C. A., 615, 108 Fed., 116.”
In Hall v. R. R., 157 Fed., 464, it is said: “The question of ‘relation back’ of amendments is a fiction of the law, and shall never be allowed when to do so would, to the prejudice of a litigant, deprive him of a substantial legal right.” It is unnecessary to -recite the features in which a cause of action at common law and under our statute differs from a cause of action under the Federal statute. They are numerous *150and important, as shown by the cases of R. R. v. Zachary, 232 U. S., 248; R. R. v. Horton, 233 U. S., 492; R. R. v. Tilghman, 237 U. S., 499; R. R. v. Craft, 237 U. S., 648; R. R. v. White, 238 U. S., ..., when considered in connection with Zachary v. R. R., 156 N. C., 496; Horton v. R. R., 162 N. C., 424; Tilghman v. R. R., 167 N. C., 163; Bolick v. R. R., 138 N. C., 370; Burnett v. R. R., 163 N. C., 186.
3. I think the Court also errs in holding that there is any evidence of negligence in the record. I fail to see wherein the defendant was wanting in the discharge of any duty it owed the plaintiff on the night when he was hurt. Thousands of persons before this plaintiff have slipped up on the ice and hurt themselves without blaming any one but their own bad luck.
I cannot see that the defendant was negligent in not anticipating that its tank would overflow and the water would submerge the path and that the night would be freezing and the plaintiff would slip on it and injure himself. If it was the duty of the defendant to keep snow and ice off the path leading from the tank to the pump, it was its duty to keep it off of every path at every point on its right of way. It makes no difference how the water got on the path, whether through nature or from the accidental overflow of the tank, if the defendant owed the plaintiff no duty to keep this particular path free from ice, there was no breach of duty upon its part.
There is no evidence that the path being used by the plaintiff was marked out by the defendant as the path for its employees. Plaintiff’s witnesses said it was the usual path. They also said that employees were free to go any way they desired in getting to the pump, and the evidence shows that there were two additional paths. There is nothing to show that the defendant had ever adopted the path or designated it as the proper one for its employees; there is nothing to show that the defendant marked it out or kept it up. It may have been, and probably was, if a path at all, one of the several ways of getting to the pump. The tank and pump were both in the open country with nothing to prevent pedestrians .using any path they saw fit, or walking in any direction they desired. Plaintiff says he was walking in the usual path from the pump to the train.
The evidence of the plaintiff shows that there is another path that he might well have taken which comes up to the other side of the tank and on the opposite side from that on which the plaintiff fell. Parks, one of the plaintiff’s witnesses, testifies that one can go to the pump-house any way he wants to go; that there are other paths leading to the pump-house. This witness also says that it was a very hard winter, the hardest winter he had ever seen around Cochran, and that everything was frozen up. This evidence shows that the plaintiff had other routes to take, and *151if be saw fit to take tbe one tbat was covered witb ice, be did it witb bis eyes open and ongbt not to be permitted to recover.
Tbe defendant bad no notice tbat plaintiff would use tbat patb. If it was dangerous to use plaintiff bad equal opportunity witb defendant to know tbe danger. Plaintiff bad bis choice of tbe paths leading to tbe pump. He was free to go where be pleased. Tbat be selected tbe patb in which tbe ice bad accumulated during tbe day ought not to‘ be charged against tbe defendant.
“Tbe duty of a master to provide a reasonably safe place in which bis servant shall work does not extend to safeguarding tbe route of every journey tbe servant may be required to make in fetching and carrying, whether messages or portable articles.” Bridge Co. v. Bainum,, 146 F., 367.
4. Tbe contention of tbe defendant on tbe issue of assumption of risk is tbat tbe condition complained of was one of tbe ordinary risks of an employee engaged in working around water tanks. ' This is well founded. Any man of ordinary intelligence is charged witb knowledge of tbe fact tbat in extremely cold weather there is an accumulation of ice around water tanks, and plaintiff admitted tbat be was well aware of tbat condition.
Plaintiff testified tbat “you find water around tbe water tanks, but it is on account of tbe carelessness of tbe firemen you find it. I do not know about a plenty of it.. I have been to tanks and found water around them, and tbat is a common thing, but it is not necessary tbat it should be there, but I have seen it there. In cold weather tbat water freezes like any other water. In weather as cold as this water tbat comes down out of tbe heavens freezes as soon as it bits tbe ground. I bad just gotten to Cochran; bad not been there over thirty minutes. I found ice there at tbat tank. I do not know tbat I found ice anywhere else tbat winter.”
Eailroad employees assume tbe risks incident to tbe falling of snow and forming of ice on and tbe removal of tbe same from the tracks and places where employees are required to work, if such removal is made in a proper and reasonable manner. Labatt (1st Ed.), page 604 (note).
Tbe injury to tbe plaintiff was an accident, pure and simple, an unexpected result from a known cause, for which, in my opinion, tbe defendant is in no sense responsible.
Me. Justice WalkeR concurs in this opinion.