Stokes v. Great Southern Lumber Co.
| Citation | 21 F.2d 185 |
| Decision Date | 08 August 1927 |
| Docket Number | No. 7088.,7088. |
| Parties | STOKES et al. v. GREAT SOUTHERN LUMBER CO. et al. |
| Court | U.S. District Court — Southern District of Mississippi |
M. S. McNeil, of Hazlehurst, Miss., for plaintiffs.
Brady, Dean & Hobbs, of Brookhaven, Miss., for defendants.
The plaintiffs, Mrs. Fannie May Stokes et al., filed suit in the state court jointly against the Great Southern Lumber Company, a nonresident corporation operating a logging steam railroad, and its engineer, Otho Dykes, a citizen of Mississippi. On petition of the defendants, the cause was duly removed, and motion is now made by the plaintiffs to remand.
While several grounds are urged by the defendants in support of jurisdiction here, it will suffice to say that, if no cause of action is stated against the engineer, the resident defendant, the cause is removable. It appears from the face of the declaration that the plaintiffs' intestate, while employed as a brakeman of the defendant lumber company, was killed while undertaking to couple cars, because, in the language of the declaration, "the engineer, Otho Dykes, the agent and servant of the defendant, in charge of and operating the engine, negligently caused said cars to come together with tremendous force, thereby crushing defendant between said two cars and killing him instantly."
It is not sufficient to allege negligence merely as a legal conclusion, but facts must be exhibited showing in what the negligence consisted. Horton v. Lincoln County, 116 Miss. 813, 77 So. 796.
It is conceded that under the Mississippi statute (chapter 215, Laws 1912) negligence is presumed against the company upon proof of injury inflicted by the operation of the trains. In such case it is sufficient to charge that the person was injured or killed by the running of the train. Hudson v. Railroad Co., 95 Miss. 42, 48 So. 289.
But it is urged that no such presumption of negligence arises against the engineer, and that therefore no cause of action is stated against him. The plaintiffs claim that under chapter 215 of the Laws of 1912 the same presumption of negligence exists against the engineer as against the company, and that therefore, even though negligence is not sufficiently alleged in the declaration, a presumption of negligence exists against the engineer by reason of the statute upon the simple allegations that the deceased was killed by the train while being operated by the engineer.
Chapter 215 of the Laws of 1912, section 1985 of the Code of...
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