Rouse v. Hornsby

• Decision Date: 04 March 1895
• Docket Number: 489.,488
• Citation: 67 F. 219
• Parties: ROUSE v. HORNSBY, Intervener (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 219

ROUSE v. HORNSBY, Intervener (two cases).

Nos. 488, 489.

United States Court of Appeals, Eighth Circuit.

March 4, 1895

T. H Sedgwick, for plaintiff in error.

Nelson Case and W. B. Glasse (W. D. Atkinson, on the brief), for intervener.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

In the foreclosure suit of the Mercantile Trust Company against the Missouri, Kansas & Texas Railway Company, commenced in the United States circuit court for the district of Kansas, George A. Eddy and Harrison C. Cross were appointed receivers of the road and property of the defendant company, and invested with the usual powers of receivers of railroads. John E. Hornsby, the intervener and defendant in error, was in the employ of the receivers as train baggageman, and on the 3d day of June, 1891, while on a train in the discharge of his duties, received personal injuries in a head-on collision between the passenger train on which he was working and a freight train. The collision resulted from the negligence of the conductor and engineer in charge of the freight train. The defendant in error filed his petition of intervention in the foreclosure suit in which the receivers were appointed, to recover damages from the receivers for the personal injuries he received in the collision. A demurrer to this petition was sustained by the circuit court, and the petition dismissed, whereupon the intervener brought the case, by writ on error, into this court, where the judgment of the circuit court was reversed, and the cause remanded with directions to overrule the demurrer to the intervening petition, and proceed with the trial and decision thereof. The contention of the defendants in error in that case (plaintiffs in error in this) was that paragraph 1251, vol 1, Gen. St. Kan. 1889, did not apply to railroads operated by receivers, and that, as the intervener's injuries resulted from the negligence of his fellow servants, the receivers were not liable therefor; but this court held the statute cited applied as well as to receivers operating a railroad as to a railroad company, and that in Kansas, under this statute, the fact that the injury resulted from the negligence of a fellow servant was no longer available as a defense, either to a receiver operating a railroad or to a railroad company. Hornsby v. Eddy, 5 C.C.A. 560, 12 U.S.App. 404, and 56 F. 461.

After the cause was remanded to the circuit court, the plaintiffs in error moved that it be referred to a 'master, with instructions to find and report on both the law and the facts,' and the defendant in error moved that a jury be impaneled to try the issue. The court denied the motion of the plaintiffs in error, and ordered a jury to be called to try the case. There were a verdict and judgment for the intervener, and the defendants sued out this writ of error. An elaborate brief is filed by the plaintiffs in error in support of the contention that the section of the Kansas statute referred to does not apply to receivers operating a railroad, and that as to them the fellow-servant rule of the common law still obtains. This question was carefully considered when this cause was first here. We are all entirely satisfied with the result then reached.

While the intervening petition was filed in a chancery suit, it had no relation to any equitable issue in that case, and presented only a cause of action at law, which the court very properly impaneled a jury to try. For all practical...