Cross v. Evans

• Decision Date: 10 May 1897
• Docket Number: No. 268,268
• Citation: 167 U.S. 60,17 S.Ct. 733,42 L.Ed. 77
• Parties: CROSS et al. v. EVANS
• Court: U.S. Supreme Court

167 U.S. 60

17 S.Ct. 733

42 L.Ed. 77

CROSS et al.

v EVANS.

No. 268.

May 10, 1897.

James Hagerman and F. C. Dillard, for plaintiffs in error.

Rush Taggart, for defendant in error.

Mr. Justice WHITE delivered the opinion of the court.

The action below was commenced in September, 1890, by Evans, in a Texas state court, against Cross and Eddy, as receivers of the Missouri, Kansas & Texas Railway Company, a corporation of the state of Kansas, to recover damages for personal injuries sustained within the state of Texas while acting as brakeman upon a train running over a branch line of said railway system while it was being operated by the receivers. On the petition of the receivers, the cause was removed into the circuit court of the United States for the Eastern district of Texas. Subsequently thr railway properties were returned to the Kansas Company, and in the fall of 1891 that company transferred its lines of railroad to a new corporation, styled the Missouri, Kansas & Texas Railway Company of Texas. The receivers were finally discharged in the month of July, 1892. In August, 1893, service was had on the Texas Company under a second amended petition, in which the Texas Company was made a co-defendant with the receivers; its liability to the plaintiff being asserted to arise from the terms of the order of the circuit court directing the receivers to surrender the property to the Kansas Company, and upon the provisions of a special act of the legislature of Texas authorizing the sale by the Kansas Company of its properties, and subjecting the purchaser to the payment of all the liabilities of the Kansas Company. Demurrers to the jurisdiction, as also to the merits of the amended petition, were filed and overruled, and an answer was interposed by the Texas Company, which was adopted by the receivers, by way of amendment; the latter then setting up for the first time their discharge in bar of further proceedings.

The cause was tried upon the issues made by the second amended petition and the answers thereto, and a verdict was returned against the Texas Company for the sum of $7,500. By direction of the court, the jury found in favor of the receivers. The cause was then taken by writ of error to the circuit court of appeals for the Fifth circuit, and on the hearing that court certified to this court, under the judiciary act of 1891, a statement declared to consist of matter appearing in the transcript of record filed in that court, and the instructions of this court were requested upon four propositions of law, as being desired 'for the proper disposition of the questions arising herein.' Following the questions propounded was a direction that 'certified copies of the printed record and briefs on file in this case be transmitted with this certificate to the honorable the supreme court of the United States.'

What may be termed the statement of facts embraces a recital of the various steps in the litigation, and what purports to be the substance of the contents of the various pleadings filed in the cause, and the assignments of error (10 in number) filed by the defendants in error in the circuit court of appeals; the latter document being set out in extenso, and being followed by the recital that 'all of the questions presented by the assignments of error were duly made in the circuit court, and the adverse rulings thereon are duly shown by exceptions made and saved on the trial.'

In the statement, attention is called to the fact that the plaintiff in his original petition asserted that the wreck which occasioned his injury was caused by a defective drawhead, while in the amended petition, filed more than a year after the injury was sustained, it was alleged that the roadbed and track at the place and time where and when the derailment happened were in a defective and unsafe condition.

It was also specifically stated that the pleadings of the plaintiff contained no allegation that any betterments had been put upon the road by the receivers while they were in charge, and that at the trial no evidence was offered on the subject.

The assignments of error reiterated in various forms the objections taken prior to the trial to the sufficiency of the second amended complaint, also the objections taken to the refusal of the trial court to sustain exceptions to its jurisdiction based upon the fact that the plaintiff and the Texas Company were citizens of the same state, and that the action had abated by the discharge of the receiver, and objections raised by the plea of the statute of limitations. The fifth assignment of error was to the refusal...