McGhee v. Willis

• Decision Date: 17 June 1902
• Citation: 134 Ala. 281,32 So. 301
• Parties: MCGHEE ET AL. v. WILLIS.
• Court: Alabama Supreme Court

32 So. 301

134 Ala. 281

MCGHEE ET AL. v. WILLIS.

Supreme Court of Alabama

June 17, 1902

Appeal from circuit court, Jackson county; J. A. Bilbra, Judge.

Action by L. W. Willis, as administrator of J. W. Legg, deceased against C. M. McGhee and another, as receivers of the Memphis & Charleston Railroad Company, for the negligent killing of an employé. From a judgment for plaintiff, defendants appeal. Reversed.

This was a suit, under the employers' liability act, to recover for the alleged wrongful killing of plaintiff's intestate at Stevenson, Ala., on December 13, 1894; it being alleged in the complaint that the plaintiff's intestate was the yard master in the defendant's employment at that time, and that his death was caused by reason of the negligence of the engineer in charge of the engine operated by the defendants as such receivers. The complaint, as amended, contained six counts. The third, fourth, fifth, and sixth counts were eliminated by the court giving the general affirmative charge in favor of the defendant, and the withdrawal of the others by the plaintiff. In the counts of the complaint upon which the cause was tried, the plaintiff sued in his representative capacity as the administrator of the estate of John W. Legg, deceased, and claimed damages from the defendants as receivers of the Memphis & Charleston Railroad, and averred their regular appointment as receivers of said railroad company by orders of the circuit court of the United States for the Western district of Tennessee and the Northern district of Alabama, and that at the time of the injury complained of they were operating said railroad, and engaged in the business of transporting freight and passengers over said line of railroad, and were using locomotives and cars for such purpose. It was further averred in said counts of the complaint that John W. Legg, the plaintiff's intestate, was employed by the defendants as yard master at Stevenson, and was required, in connection with other duties, to couple and uncouple the cars run and operated on said road by the defendants; that on December 13 1894, while the defendants, through their agents and servants, were engaged in putting cars loaded with coal upon a side track at a coal chute upon said road, the plaintiff's intestate, in the discharge of his duty, went between two of said cars to uncouple them, and that, after having uncoupled said cars, the engineer (one Jasper Potts) in charge of said engine pulled said cars apart, and thereupon, while plaintiff's intestate was still between said cars in the performance of his duty, the said engineer negligently or carelessly drove or pushed said cars, which had been so uncoupled, together, and intestate's foot was caught between them, and he was so injured that he died from the effects thereof. It was then averred that the cause of the death of the plaintiff's intestate was the negligence of the engineer, Potts, in driving said cars together upon the plaintiff's intestate. The defendants pleaded the general issue, and set up by special pleas the contributory negligence of the plaintiff's intestate. The defendants also pleaded the following special pleas: "(4) For further special plea, defendants say: Said J. W. Legg at the time of his death, which occurred in Jackson county, Alabama was not an inhabitant of said county, and left no assets in said county at the time of his death, and none were afterwards brought into said county prior to the grant of administration. Said letters of administration upon his estate, if granted at all, were granted by the probate court of Jackson county, Alabama, which had no jurisdiction to grant the same, wherefore said grant of administration to L W. Willis is void, and he is not the administrator of the estate of said Lee, deceased. (5) For further plea and answer to the complaint, and each count thereof separately defendants say that since the institution of this suit the defendants have been fully and finally discharged from their receivership by the court which appointed them, namely, the circuit court of the United States for the Western district of the state of Tennessee, and the circuit court of the United States for the Northern division of the Northern district of Alabama, and have turned over to the Southern Railway Company, their successors, all property which they held as such receivers. Defendants hereto attach certified copies of said orders discharging them, marking the same 'Exhibits A and B,' and ask that the same be taken in connection with, and as a part of, this plea. (6) For further plea to each count of the complaint, separately, defendants say that plaintiff's intestate at the time of the injury which caused his death was not in discharge of his duties as yard master, but was performing the duties of a brakeman, in coupling or uncoupling cars, and he thus proximately contributed to cause his death." The plaintiff demurred to the defendants' fourth plea upon the following grounds: "(1) Said plea does not allege facts which show that plaintiff's letters of administration are void for want of jurisdiction in the court that granted the same. (2) Said plea does not allege that plaintiff's intestate was a resident of the state of Alabama at the time of his death. (3) Said plea seeks to show that the grant of letters of administration to plaintiff upon the estate of his intestate was void for want of jurisdiction, and does not allege or admit that any such letters were granted." To the fifth plea the plaintiff demurred upon the following ground: "Said plea sets up as a defense the final settlement of the trust and discharge of defendants from the receivership, and does not allege that the matters in controversy in this case were adjusted in any way, and it does not allege that plaintiff's claim against defendants has been paid or in any other way settled." To the sixth plea the plaintiff demurred upon the following ground: "(1) The plea is no answer to the complaint, in this: that the complaint alleges that some of the duties of the yard master were to couple and uncouple cars, and that plaintiff's intestate was in the discharge of his duties as yard master when he uncoupled said cars." This demurrer was sustained. The cause was tried upon issue joined upon the plea of the general issue and the several pleas of contributory negligence.

The evidence in the case showed that deceased at the time of his death was 34 years old, stout, able-bodied, and in good health, prior to the injury. He was a single man. He was making at the time of his death $54 a month. He had been known by his brother to contribute a portion of his wages on one or two occasions to his parents. The evidence does not show how much of the monthly income he saved, or that he saved any, nor how much he spent on himself. The evidence is undisputed that deceased at the time of his death was yard master for the Memphis & Charleston Railroad Company, and there is no evidence that he was in the employment of these appellants. Nor is there any evidence that the engineer to whose negligence the killing is ascribed was defendant's employé; the evidence tending, rather, to show that he was in the employment of the company. As to the circumstances attending the injury, the evidence shows the following: On the morning of the injury and death, Potts, the engineer or hostler, brought his engine, with nine cars loaded with coal to the coal chute about one mile west of Stevenson, in order to put the cars on the chute. The engine was pushing the cars, being attached to the car next to it by means of a push bar; the front of the engine being next to the cars, and the tender being toward the east. After the engine and cars reached the coal chute these cars were pushed down on the main track opposite the chute track, and beyond the switch which went up to the chute or bin. The engine was then detached, and went upon...