Southern Ry. Co. v. Mayes , 124 Miss. 890 ( 1921 )

Sam C. Cook, P. J.,

delivered the opinion of the court.

In April, 1917, Mr. J. L. Mayes, a locomotive engineer on the Southern Railway Company, went into Memphis on a passenger train called the Newsboy, running from Huntsville, Ala., to Memphis, Tenn., the train being what is called a- double-header, and his brother, Etheridge Mayes, was engineer on the other engine.

When they arrived at Memphis, after backing their train into the Union Station, they then abandoned their engine and left the train standing where it was placed for-the passengers to alight; their responsibility to the train being then and there terminated.

There is at Memphis a Union Station Company, a corporation chartered by the laws of the state of Tennessee, which company, through its employees, takes charge of all trains after they have stopped in the Union Station, and exclusively handles and controls the trains , and engines while in said yards.

The deceased, with his brother, upon leaving the engine, went to a certain building in said yards to register and wash up, and then proceeded to go to another place in said Union yards, to again register, and on the way to this last point, in traveling through the yards, the deceased stepped upon the end of the cross-ties of the cinder pit track, and his brother walked by his side away from the track. The engine upon which deceased came into Memphis was by the employees of the Union Station Company being slowly backed up this cinder track and struck and injured deceased, from which injury he died twelve hours thereafter.

His widow, Mrs. Lena Mayes, took out letters of administration in the state of Alabama, and subsequently, to-wit, on NoArember 24, 1917, instituted the suit in this case in the circuit court of Tishomingo county, Miss.) alleging damages in the sum of one hundred thousand dollars.

The railway company pleaded the general issue and also filed the folloAving plea:

“And now comes the defendant, and for further and second plea in this cause says that the plaintiff ought not to have and maintain her said suit aganist this defendant.

“First. That said suit is for damages for the death of one J. L, Mayes, Avhich occurred on or about the 11th day of April, 1917, in the terminal yards of the Union Station in the city of Memphis and state of Tennessee.

“Second. Defendant avers that said terminal yard is oAvned, managed, and controlled by a corporation duly and legally chartered under and by virtue of the laws of the state of Tennessee, being so corporated September 25, 1909, under the name of the Memphis Union Station Company; that under said charter said company Avas duly and lawfully organized September 28, 1909, in strict accordance with provisions of said charter.

■ “Third. That said Memphis Union Station Company is the sole owner of Avhat is knoAvn as the Union Station in the city of Memphis, including the buildings, tracks, roadbed, lands, and all other facilities used in the operation of the said Union Station; that said Memphis Union Station Company operates, handles, manages, and controls all trains, both passenger and freight, entering and departing from said station; that all employes handling trains or locomotives are the sole employees of the Memphis Station Company; that when any passenger train enters upon the yards of said Memphis Union Station Company it moves into its place and stops under the direction of the employees of the said Memphis Union Station Company, and the employees upon said railroad train, upon entering into said Union Station, immediately abandon said train or locomotive, and they are taken possession of, moved, handled, and controlled solely and alone by the employees of the said Memphis Union Station Company.

“Fourth. That said Memphis Union Station Company is an independent corporation separate and apart from the defendant railroad company and other railroads using said Union Station. Its charter is hereto attached, Exhibit A.

“Fifth. That said defendant railroad cpmpany, 'together with other railroad companies entering said Union Station, do so under a contract with the said Memphis Union Station Company, which contract is hereto attached, marked Exhibit B, and made a part hereof; that the defendant railroad company has no control over the management of the business transacted or the facilities used in the yards of the said Memphis Union Station Company, and has no control over its employees, as is shown by the contract hereto attached, to which contract reference is here and now made as to the relation of the defendant and said Station Company.

“Sixth. Defendant avers that at the time the deceased, J. L. Mayes, received the injuries upon which this suit is based the locomotive inflicting the injuries was under the complete control, possession, and management of the said Station Company and its employees, and defendant had no control or right of control over said employees of the said Station Company, nor the manner in which the said employees of the said Station Company handled or transacted the business of the said Station Company, and the injury received by said deceased was solely an act of the said Station Company and its employees, for which the defendant is and was in no way under the law liable for said injury to deceased.

“And this defendant is ready to verify.”

To this last-named plea the plaintiff demurred, and this demurrer was sustained. If the averments of this plea are true, the plaintiff sued the wrong corporation, and, if the evidence should substantiate the plea, the defendant would be entitled to an instruction directing a verdict for the defendant.

We express no opinion touching the merits of the action, if brought against the proper defendant. The failure to file a certified copy of the record of her appointment as administratrix may be remedied.

Reversed and remanded.