Axline v. Toledo, W.V. & O.R. Co.
| Decision Date | 17 December 1903 |
| Docket Number | 1,135. |
| Citation | 138 F. 169 |
| Parties | AXLINE v. TOLEDO, W.V. & O.R. CO. et al. |
| Court | U.S. District Court — Southern District of Ohio |
E. W James, for plaintiff
Pomerene & Pomerene, for defendants.
This cause is submitted upon a motion to remand the same to the court of common please for the county of Coshocton, in the state of Ohio (the court in which it originated), upon the grounds that diverse citizenship, within the meaning of the removal acts, is not shown. Under these acts it is necessary that all the parties on one side of the controversy shall be citizens of a different state or states from all the parties on the other side, and in this case the record shows that the plaintiff and the defendant the Toledo, Walhonding Valley & Ohio Railroad Company are citizens of the same state, to wit Ohio; but if further appears that the Toledo, Walhonding Valley & Ohio Railroad Company is improperly joined as a defendant, and its citizenship therefore should be disregarded. The tort set up in the original petition was not the joint tort of the defendants, nor was the Toledo Walhonding Valley & Ohio Railroad Company a party thereto in any respect. The plaintiff was a servant of the Pennsylvania Company, employed in the operation of a railroad, and was injured while in that service, as is alleged, by reason of the negligence of that company. The Toledo, Walhonding Valley & Ohio Railroad Company was the owner of the railroad, and the Pennsylvania Company was its lessee; and it is claimed that the Toledo, Walhonding Valley & Ohio Railroad Company is liable to the plaintiff for the injury he sustained, under section 3305 of the Revised Statutes of Ohio of 1892, which provides:
'* * * And notwithstanding such lease the corporation of this state, lessor therein, shall remain liable as if it operated the road itself, and both the lessor and lessee shall be jointly liable upon all rights of action accruing to any person for any negligence or default growing out of the operation and maintenance of such railroad, or in any wise connected therewith.'
This law has relation to the duties of the railroad company as a common carrier, and in that respect is declaratory of the common law, and is not applicable to the plaintiff's case, which is founded upon the contract of service between the plaintiff and the Pennsylvania Company, and not upon any duty which the Pennsylvania Company,...
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