Argument for Plaintiff in Error. 244 U.S. R. R. Co. v. Shirley, 120 N. Y. Supp. 192; Brewer v. Railway Company, 45 Hun, 595; Central Railroad of Georgia v. Lippman, 110 Georgia, 665; Bouvier; Hutchison on Carriers, § 47; Greenleaf on Evidence, vol. 2, § 211. Assuming that a suburban street railway company operated by electricity and carrying passengers only is a common carrier, still it is not a "railroad" within the meaning of the act. McLeod v. Chicago &c. Ry. Co., 125 Iowa, 270; Fallon v. West End Street Ry. Co., 171 Massachusetts, 249; Lundquist v. Duluth Street Ry. Co., 65 Minnesota, 387; Funk v. St. Paul Street Ry. Co., 61 Minnesota, 435; Sams v. St. Louis & Merrimac R. R. Co., 174 Missouri, 53; Godfrey v. St. Louis Tourist Co., 107 Missouri, 193; Johnson v. Metropolitan Street Ry. Co., 104 Mo. App. 588; Riley v. Galveston City Ry. Co., 13 Tex. Civ. App. 247; Norfolk Traction Co. v. Ellington, 108 Virginia, 245. See Omaha & Council Bluffs Street Ry. Co. v. Interstate Commerce Commission, 230 U. S. 324; Hughes v. Indiana Traction Co. (Indiana), 105 N. E. Rep. 537. Omaha & Council Bluffs St. Ry. Co. v. Interstate Commerce Commission, makes plain that the facts that a street railway does a suburban as well as an urban business, is operated by electricity instead of horse power and operates in part over a private right of way, do not give it the character of a "railroad" within these acts. United States v. Baltimore and Ohio S. W. Ry. Co., 226 U. S. 14;. Kansas City &c. Ry. Co. v. McAdow, 240 U. S. 51; Spokane &c. Ry. Co. v. United States, 241 U. S. 344, and Same v. Campbell, id. 497, all had to do with roads operating between cities, and carrying both passengers and freight after the manner of steam railroads, and competing with them-unlike the road of the plaintiff in error. At most the question of the character of appellant was one for the jury and not for peremptory instruction. The trial court erred in allowing a new cause of action to be introduced by amendment after the evidence had 244 U.S. Argument for Plaintiff in Error. all been taken and the witnesses discharged, especially one which was already barred by the limitation of the statute under which such cause of action was permitted to survive. The right of action for the conscious pain and suffering of the deceased based wholly on the Act of 1908, as amended in 1910, was not counted on nor damages claimed under it in the declaration. The distinction between such a cause and the cause relied on prior to the amendment is clearly shown in Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59; St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U. S. 648; Garrett v. Louisville & Nashville R. R. Co., 235 U. S. 308; Gt. Northern Ry. Co. v. Capital Trust Co., 242 U. S. 144. Under the declaration as originally drawn there was but a single cause of action asserted, namely, the action for pecuniary loss and damage resulting to the parents by reason of the untimely death of their son. The pleading could not justify a recovery under his surviving right of action. See Hurst v. Detroit City Railway, 84 Michigan, 539. It is contrary to the settled law to permit a cause of action which has been barred by limitation, and which is not even defectively pleaded, to be revived by an amendment relating back to the beginning of the action. 25 Cyc. 1308, 31 id. 413; Nelson v. First Natl. Bank, 139 Alabama, 578; Mohr v. Lemle, 69 Alabama, 180; Whalen v. Gordon, 95 Fed. Rep. 305; Schulze v. Fox, 53 Maryland, 37. Seaboard Air Line Ry. v. Renn, 241 U. S. 290; Illinois Surety Co. v. Peeler, 240 U. S. 214, and Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570, are to be distinguished as cases in which the amendments merely extended or amplified statements of causes of action already set up. The plaintiff in error did not waive its right to plead the statute of limitations to the amended declaration by its failure to object to the first amendment. The court below disposed of this objection in its opinion, citing Union Argument for Defendant in Error. 244 U. S. Pacific Ry. Co. v. Wyler, 158 U. S. 285, in addition to which, see Atlantic Coast Line Ry. v. Burnett, 239 U. S. 199, 201, holding that where a statutory right of action of this kind is given, to be asserted within a stated period, a plea of the limitation is unnecessary and the bar may be claimed under the general issue. Counsel also contended that there was a dearth of evidence of conscious pain and suffering; St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U. S. 648; that the amendment failed to assert a claim for pain and suffering in sufficient form; that allowance of the amendment took defendant by surprise and that evidence should have been taken on defendant's plea of the statute of limitations to the amended declaration. They also made the points that there was no negligence on the part of the plaintiff; that, if there was, it was not the proximate cause and decedent assumed the risk; and that the trial judge erred in the instructions concerning some of these matters. Mr. Daniel W. O'Donoghue, with whom Mr. Arthur A. Alexander was on the briefs, for the defendant in error, moved to dismiss the writ of error upon the ground that, as applied to this case, the Employers' Liability Act of 1908, as amended in 1910, should be regarded as a local act and not such a general law of the United States as when construed affords jurisdiction to this court to review a final judgment of the Court of Appeals of the District of Columbia, under Jud. Code, § 250, par. 6. American Security & Tr. Co. v. District of Columbia, 224 U. S. 491. It was conceded in both courts below that the death of the employee occurred about a mile out in the country westward from that part of the City of Washington which is known as Georgetown, but within the limits of the District of Columbia. Whenever the injury occurs within the District the case is governed by § 2 of the Act of 1908. The same reasoning which induced the court in Washing 244 U. S. Argument for Defendant in Error. ton, Alexandria & Mt. Vernon Ry. Co. v. Downey, 236 U. S. 190, to hold that the Employers' Liability Act of 1906, as applied to the District, was local, holds good in respect of the Act of 1908. See El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87. The fact that the general -provision defining the application of the Act of 1908 is in one section (§ 1), while that declaring liability in the District and the Territories is placed in a separate section (§ 2), makes the intention to regulate locally even clearer than it was in the Act of 1906, where both aspects were fused in one section. The injury having occurred in the District, the fact that it was also in the course of commerce between the District and the State of Maryland does not bring the carrier within § 1, because, as said in the Downey Case, supra, the test whether the statute is general or local depends on the source of the legislative power exerted, that is, whether it comes from the purely local power to govern the District or the power over interstate commerce, and whether in its general operation it was intended as a local law. See Gutierrez Case, supra, p. 97. If this court has jurisdiction by writ of error, the anomalous situation results that judgments of the Court of Appeals of the District in these cases may be reviewed here as of right, while the jurisdiction to review such judgments when rendered by the Circuit Courts of Appeal is cut off by the Act of September 6, 1916, 39 Stat. 726. The correct view is that § 1 of the Act of 1908 applies to interstate commerce to or from the District only when the injury occurs outside of the District. This is shown by the fact that § 2 does not employ the language of § 1, "in such commerce," but expressly provides that the carrier shall be liable to any employee "suffering injury . in any of said jurisdictions." When the case is governed by the local statute, namely, § 2 of the act, then necessarily §§ 3 to 9 are ancillary to and Opinion of the Court. 244 U.S. become part of the local statute. In local cases, all sections apply, except § 1; in an interstate case, where the injury occurs outside of the District, all sections except § 2 apply. If the court should hold that the plaintiff in error is not a "common carrier by railroad" within the meaning of the Act of 1908, the case should be disposed of, not by reversal, but by dismissing the writ of error because the action then would be governed by the Employers' Liability Act of 1906. See Employers' Liability Cases, 207 U. S. 497, and El Paso & Northeastern Ry. Co. v. Gutierrez, supra. The Act of 1908 expressly provides that the Act of 1906 shall not be thereby repealed, and under Washington, Alexandria & Mt. Vernon Ry. Co. v. Downey, supra, the judgment in a case based on the earlier act would not be reviewable here. MR. JUSTICE CLARKE delivered the opinion of the court. This case is before us on writ of error to the Court of Appeals of the District of Columbia, and we shall refer to the parties as they appeared in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant. On July 8, 1913, the plaintiff's decedent was a conductor in the employ of the defendant, a common carrier of passengers by an electric railroad, with termini as hereinafter described, and when standing or moving along the "running or stepping board" of an open summer car, in the evening after dark, his body in some manner struck against one of the poles supporting the overhead wires and he was so injured that he died within an hour. The negligence charged in the third and fourth counts of the declaration on which the case was tried is the placing of the poles so close to the track that the decedent did not have a reasonably safe place in which to discharge |