#### The Wabash Railway Company v. William McKittrick, Administrator.

Railroads—Negligence—Personal Injuries—Ownership of Road—Misnomer.

*83In an action against the “ Wabash Railway Co.” for a wrongful death, the evidence showing that the road on which the injury was received was owned by the “ Wabash, St. Louis & Pacific Railroad Co.,” and- the train which caused the injury was operated by its receiver, it is held, that plaintiff can not recover.

[Opinion filed June 13, 1890.]

In error to the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.

Mr. George B. Burkett, for plaintiff in error.

Mr. A. W. Metcalfe, for defendant in error.

Reeves, P. J.

This action was to recover for the death of defendant in error’s intestate, caused by being struck by a train of plaintiff in error upon the railroad of plaintiff in error. The suit is against the Wabash Railway Company, a corporation organized under the laws of -this State. The plea was not guilty: The proof clearly shows that the railroad upon which the inj ury to defendant in error’s intestate was received was owned by the Wabash, St. Louis and Pacific Railroad Company, and the train causing the injury was operated by John McHulta, receiver of the Wabash, St. Louis and Pacific Railroad Company. The declaration averred that plaintiff in error was a corporation duly organized, and the plea admitted this averment, but the evidence clearly shows that the Wabash Railway Company—conceding there is such a corporation, as we must do under the pleadings—did not own the railroad upon which the injury complained of was received, and that it was not operating the train which caused the injury. In this condition of the case we do not see how the judgment of the Circuit Court can be sustained. The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.