Cross v. Evans

• Citation: 86 F. 1
• Decision Date: 29 March 1898
• Docket Number: 246.
• Parties: CROSS et al. v. EVANS.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

86 F. 1

CROSS et al. v. EVANS.

No.246.

United States Court of Appeals, Fifth Circuit.

March 29, 1898

This was an action to recover damages for personal injuries sustained by the defendant in error on September 1, 1890 while he was in the employ of Cross and Eddy, receivers of the Missouri, Kansas & Texas Railway Company. At the time of the injury, defendant in error was employed as a brakeman on the Taylor, Bastrop & Houston Branch, which was a part of the Missouri, Kansas & Texas System, and was operated by the above receivers; and it is alleged that the injuries were brought about by the derailing of a train through the negligence of said receivers. This suit was originally brought in the district court of Wood county, Tex., on the 5th day of March, 1891, against George A. Eddy and H. C Cross, receivers of the Missouri, Kansas & Texas Railway Company. On the 20th of April, 1891, Eddy and Cross filed their petition and bond for removal of said case on the ground of diverse citizenship,-- Eddy and Cross alleging that they were citizens of Kansas,-- and on the further ground of a federal question involved; and on May 4, 1891, the bond was approved and the petition granted, and the case removed to the United States Circuit Court for the Eastern District of Texas. Plaintiff in his original petition alleged that he received serious and permanent injuries; among others, the loss of his leg. He was working as a brakeman for said receivers, when a wreck occurred, derailing the train, and inflicting upon him the injuries because of which he brought the suit. It was alleged in said original petition that the wrecking of said train was brought about by the drawhead of the fifth or sixth car, or other car, in said train of cars, pulling out and dropping down on the track, catching on the ties, and jamming the cars back, and throwing them off the track and into a creek. It was charged that the drawhead was old, defective, out of repair, and in no fit condition to serve for the purpose for which it was intended; that by reason of the bad and defective drawhead the wreck occurred, and plaintiff was injured. This was the only ground of negligence alleged in plaintiff's original pleading. On the 19th day of January, 1892, defendants Cross and Eddy filed their original answer, in which they set up negligence of plaintiff, and negligence of plaintiff's fellow servants, in causing the jerk which pulled out the drawhead and caused the accident. On August 23, 1892, defendant in error filed his first amended original petition, claiming of Eddy and Cross, receivers, and also of the Missouri, Kansas & Texas Railway Company, incorporated under the laws of Texas (though he did not give it its full corporate name), in which petition he alleged that since the commencement of his suit all the properties in the hands of the receivers had passed into the hands of the railway company, and set forth additional grounds of negligence on the part of the receivers. In this petition, in addition to the grounds of negligence set out in the original petition, plaintiff for the first time alleged further grounds of negligence upon the part of the receivers, substantially as follows: That the track at the point where the cars were derailed was out of repair, and in an unsafe and dangerous condition, and that said train of cars upon which plaintiff was riding was overturned by reason of said bad and defective condition of said roadbed, ties, fish plates, and rails. On August 23, 1893, defendant in error filed his second amended original petition, complaining of the receivers, and of the Missouri, Kansas & Texas Railway of Texas. From this last petition it appeared that plaintiff at the time he was injured was employed on the Taylor, Bastrop & Houston Railway; that this road was a part of the system of the Missouri, Kansas & Texas Railway, and was operated by the receivers. It further appeared: That on the 16th day of April, 1891, the legislature of the state of Texas enacted a law authorizing the sale and conveyance of the Missouri, Kansas & Texas Railway Company's lines of railroad, heretofore operated as the property of the Missouri, Kansas & Texas Railway Company, as a part of the system of roads within the state known as the Missouri, Kansas & Texas Railway, and to provide for and authorize the sale and transfer and conveyance of said lines of railway to, and the purchase and operation thereof, by a single corporation, incorporated under the laws of the state of Texas. First part of section 3 of said act is as follows: 'Sec. 3. The sale herein authorized to be made, shall be subject to all just and legal incumbrances, suits or actions for damage or rights of way, liens, judgments and debts given, contracted or incurred by said Missouri, Kansas and Texas Railway Company and other companies herein mentioned upon or against said property or any part thereof, as well as the payment and discharge of all and singular the legal obligations and liabilities whatsoever against said Missouri, Kansas and Texas Railway Company and properties herein mentioned, and for all debts, judgments, suits and all claims for damages against the receivers of said Missouri, Kansas and Texas Railway Company, to the same extent that the property would be liable therefor if the property remained in the possession and control of the Missouri, Kansas and Texas Railway Company, and the purchasing company or corporation shall take the same charged therewith, and subject to the payment thereof and the assumption by such purchasing company or corporation of such incumbrances, debts and liabilities may enter into and constitute a part of the consideration for such sale and conveyance thereto. ' That thereafter, on or about the-- day of--, 1891, the said Missouri, Kansas & Texas Railway Company, which was organized by and under the laws of the state of Kansas, bargained, sold, and conveyed all its property, including all of the lines of railway named in the fifth section of said special law, to the defendant the Missouri, Kansas & Texas Railway Company of Texas, which, as heretofore alleged, is a corporation organized by and under the laws of the state of Texas. That by an order of the federal court the defendants Cross and Eddy turned over and delivered all of the property in their possession, which included all of the lines heretofore described in said fifth section of said special law, to the defendant the Missouri, Kansas & Texas Railway Company, and thereafter all of said property was turned over by said last-named company to the Missouri, Kansas & Texas Railway Company of Texas; the said last-named company having on the-- day of--, 18--,purchased same from the Missouri, Kansas & Texas Railway Company. Said petition further alleged as follows: 'That by reason of said law, and sale and delivery of said property, and in conformity therewith, the defendant the Missouri, Kansas & Texas Railway Company of Texas took and received all of said property subject to all of the claims, demands, and liabilities of the old company, and also all of the claims, demands, and liabilities of the receivers, defendants Cross and Eddy. That the defendant the Missouri, Kansas & Texas Railway Company of Texas, by reason of said purchase, and said order of court under which said property was delivered to it, was and is now liable for whatever judgment may be rendered in favor of plaintiff in this cause.'

On September 14, 1893, the Texas Company, having been served filed its original answer, and excepted to the maintenance of the suit against it because it appeared from the plaintiff's petition that both it and the plaintiff had citizens of the state of Texas. It further pleaded that, if the plaintiff had any cause of action, it arose against Eddy and Cross while they were operating the Missouri, Kansas & Texas Railway Company as receivers, and that they were appointed receivers about June 9, 1898, in a certain suit brought in the United States circuit court of Kansas, and by ancillary proceedings in the United States circuit court for the Northern district of Texas, and that on or about the 1st day of July, 1891, by virtue of an order of said ...