WINBOURN'S CASE.
167
the rights of the parties, and it would be imposing too great a hardship on the defendant to stop its business at this time, when the complainant could derive no benefit or advantage which would compensate for the' certain injury which would be inflicted on the company, if, after a fuller investigation, it should appear that it is not in fault, or that the complainant had an adequate legal remedy. Motion refused.
WINBOURN'S CASE.· MIsSOURI PAC.
Ry. Co. v.
TExAS PAC.
Ry. Co.
(Oif'cui' (Jourt, B. D. Louisiana. Decem,ber 80,1886.) RA.ILnoAD Co1olPAN1E8-J;,IA.BlLlTY OJl'RECEIVEBS-PEBSONAL lNJUJUE!l·
.Where tbe affairs ofa railway company have ,Passed into the hands of receivers, WhO. are operating the road under the dIrection of th.e court, haVi.n g exclusive charge of its management aud of the employment of operatives and employes, the entire control of the company having passed to tl\e,receivers as fully as it was before exercised by the officers of the road, the receivers may be held answerable.in their official capacity for injuries sustained. in the same manner that the corporation would have been liable. t
In Chancery. In the matter of Matthew B. Winbourn, praying for compensation for personal injuries. On exceptions to master's report. By the master's report it appears that between 1 a.nd2 A; M. oLthe of January, 1886, and near Greenwood Rtation, Louisiana, three Shreveport passengers, the brothers Wiribouin, on a train of defendant company, running about 10 or 12. miles an hour, were occupants of a second-class coach, and bound for Woodland, Texas, when said coach was derailed, and overturned, with a baggage car, b»' reason of a rail which, upon examination, was found to be bad, rough, and old iron, whence a piece about six feet long had been· newly broken; that the engineer, upon feeling the jar of the accident, immediately applied the air-brakes, and cut off steam, to arrest the progress of the train, and, an axe the door of said assisted by a brakeman, having opened second-class car, and released the passengers and the train conductor therein, steamed to the next (Wasskom) station, and telegraphed thence to Marshall for the company's physician, who arrived at the wreck three hours after it occurred, examined and ministered to the said,Winbourns, among other injured persons, and made tender to them of medical care at the Marshall hospital of the defendallt company, which tender was declined,as they choSE! to continue their journey, and did so, after a delay of about eight hOjlrs at the wreck; that Matthew B. Winbourn, 26 years of age, disclosed there no visible inj ury, save a slight arm bruise, but complained of a pain in his left side and back to the railway phy1 Reported by Joseph P. Itomor, Esq., Of the New Orleans bar. ISee·note at end of case.
168
FE;I'l,EllAJ" REPOllTER.
sician, who examined his side, and does not recall examined his jumped back; that he dep0ses that, with the overturn of the from his seat, and was thrown upon his face, sought to rise, found himselfdisabled.inthe small olthe back, ami soon afterpulIedhimself up by the side of the car; that ;the s,uffering in that part qf his person incapacitated him from work months, when on the tenth of March, 1886, he was wholly prostrated for 21 days, and sipce that time continuo,us pains in his back have increased his incapacity for labor, and extended up to his chest; that his physician at Woodland, Texas, (Dr. Harris,) found him, when prostrated in March, suffering from a shock caused by contusion of the spinal mllrrow, and in the first stage of pneumonia, no similar case of which latter ailment was then in witness' practice; that" said physician arrested this pneumonia,ascribes it to a bruise received at the wreck, and pronounces the disorganized condition of the spinalmarro", a permanent injury, and contributive both to mental aberra,tion, ;Which said Winbourn at times exhibits, and to his speedydElathj that, in the experience of the r{lilway physician, (Dr. C. A. Smith,) p!iralysis will, in all cases, develop in the degree of the shock to the spine; that, as to Matthew B. Winbourn, the special injury sustained is adequately shown by an intelligent physiCian to have been due to said tort as the proximate cause, by the company physician to be an ordinary and natural consequence developed by it, and is of a serious and painful, not fatal, charapter, beyond medical lJ,rrest;, that tlIe injury,as recited, 'Wfnbourn, is 11 permanent physical disapHity, him to recover from the date ofits'o<;lcurrence, and for its pro1;>ap!e continuance, (Houston&- T. C. R. 00: v.'Boehns, 57 Tex. 152; Texas ,&- PaC. R. Co. v. O'Dorinell, 58 Tex. 27;) and in view of his occupation, the of his past services, his blended mental and bodily pain, and his cost' for medical care, the master recommends an of $2,000. ' .' . J'ohn H. Kennard, Jr., for Winbotirn·. W. W. ]Iaw8, receivers.' : . 'I ..
PARDEE, 1. This report ofthe Innster is sustained in all respects by the evidence in the case. In the record of the main case, there is other evidence as to the condition of the road-bed and track at the place where the accident to Winbourn occurred which would seem to DX the responsibility upon the receivers as common carriers of passengers, unless a different rule prevails them from that to which common carriers are generally as to which see High on Receivers, § 395, and cases there cited. The receivers took possession of the railway property December 16,1885, prior to the accident. In February, 1886, subsequent thereto, they made a report to the court of the condition of the entire property, in which they advise the court, in relation to that part where the aCcident to Winbourn occurred, as follows: "That portion of this division between Shreveport junction and Jonesville is in very bad condition, the rails being old, worn out chain iron, which have been repeatedly repaired and patched, the now being absolutely unsafe." It might, perhaps,
POPE'S CASE.
169
have been better to have offered this report before the master, but I do not thinE< it was necessary, as it is a part of the record, and within the judicial knowledge of the court. At all events, if the case required it, I should deem, it my duty to recommit the matter to the master, so that it might be offered. As to the amount of compensation, the sum allowed is not excessive, as the evidence shows that the injury to Winbourn was severe, disabling, and permanent. Let the exceptions to the master's report be overruled, arid the report confirmed. NOTE. RECEIVER-ACTION AGAINST. Whether or not an action for a railway injury can be maintained against the receiver of tbe ,cOlupany in whose it, Qccurred. was questioned in Smith v. Potter, (Mich.) \I N.W. Rep. 2i3. But, under the'provisioIlS of the Iowa Code; an action mal. be maintained against the receiver ofa railroad appointed bya circuit of theUmted States, by an employe of sU,ch railroad WhO has injured py:rll¥,13D of the negligence of a ,and w?ere the of the raIlroad IS, by order of tlie court, transferred to the receiver, SU,bJectto all ·Clal'llIS, debts, and litllbilities,"such yroperty inbis hands is liable for the payment ofsl,lch claims for Centra ,'frust Co. ".Sloan, (Iowa,) 22.N. W. Rep. 916; Sloa!?:"v. Central Iowa Ry. Co., (Iowa,) 16 N. W. Rep. 331. Where a demand against a receIver does not involve the administration of the trust committed to bim, but arises from ,his ,baving taken unlawful possession of property not included, in tbe trust, 'a, suit will lie against him personally as for a tresp¥s, eveJ.l thouJ?:h bEl took possllssion of such ,property under an order of court. Curran v. Craig, 22 Fed. Rep. 101. · The railr0a0. company:is not liable for injuries committl/dwhile the rllad was in the bands of th4j receber, ,all it, was o,ut of the possession of the prov.erty, and had no eontrol over it. v. 19 Fed. Rep. 4i7., But in Illinou It was held that the fencing act authorizes an action for the failure to fence agai.nst either the owner of road or th.eperson actually operating it. An action will therefore lie against the company owning an unfenced road, although iUs in the hands of a federal receiver. Ohio & M. R. Co. v.Russell, S N. E. Rep. 561. A receiver, as such, is no,t pers,onallyliable for the torts of The proceeding against him is in the nature of a :proceeding in rem, and renders the property in his hands"as sllch,liable for compensatIOn for 8uch,torts. Davisv. Duncan. 19 Fp.d. Rep. 477. But ajlldgment against a receiver for personal injuries, recovered after the receiver had settled his accounts, although the action was, the receivership, was held to create no lien against the property wbich could' be enforced WhiteY. Keokuk & D. M. Ry. Co., (Iowa,) 2,N. W. Rep. 1016. against the See, also, LehIgh, C. & N. Co. v. Central R. Co., (N. J.) 8 Atl. Rell.-.
..
POPE'S CASE.' MISSOURI
PAC.
v.
TEXAS PAC. Ry.Co·.
,(Circuit Court. E. RAILltOADs-LIABILITY,
n. Louisiana.
December 29, 1886.)
Winbowrn'a Case, ante; 167, followed.
mJUlUllls.
In Chancery. In the matter of Mrs. C. C. Pope, praying compensation for injuries. On exceptions to master's report. Henry A. F(YUJlkes, for Pope. W. W. H(YUJ6, for Receivers. 1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.