Curtis v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 20 October 1905
• Citation: 140 F. 777
• Parties: CURTIS v. CLEVELAND, C., C. & ST. L. RY. CO. et al.
• Court: U.S. District Court — Eastern District of Illinois

140 F. 777

CURTIS v. CLEVELAND, C., C. & ST. L. RY. CO. et al.

United States Circuit Court, E.D. Illinois.

October 20, 1905

Dundas & O'Hair, for plaintiff.

George F. McNulty, for defendants.

WRIGHT District Judge.

This is an action on the case by the plaintiff against the defendants for personal injuries, while employed as a brakeman, in consequence of the alleged negligence of the defendants. The action was commenced in the state court. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company being a corporation organized in a different state from the one in which the suit was begun, applied to the state court for a removal of the cause to this court on the ground of a separable cause of action from its codefendant, a local corporation. The state court ordered the removal to this court, and upon the filing of the transcript of the record herein the plaintiff moved this court to remand the cause of the state court, and in support of this motion it has been argued that the cause of action is joint as to both defendants, and not severable.

The declaration avers that plaintiff, at the time of his injury was in the employ of both defendants. The negligence charged consists wholly in inefficient operation of the train in consequence of improper equipment, but the motion to remand the cause has been submitted for decision upon a stipulation as to the facts wherein it is recited, in effect, that plaintiff was injured on the track and right of way owned by the local corporation, which latter had leased said right of way and appurtenances to the Cleveland, Cincinnati, Chicago &amp St. Louis Railway Company, and before and at the time of the injury to the plaintiff the railroad was exclusively operated by the lessee, which was in control and employed all employes, trainmen, engineers, brakemen, and switchmen who operated the railroad or any part thereof; that at the time of his injury the plaintiff had been employed by, and was in the employ of, the lessee company, was paid by it, and had signed an application to be employed by it, and was not in the employ of the lessor company, unless the court decides as a matter of law, that employment by the lessee operated as an employment by the lessor also; that the engine, cars, and equipment of the train, including the air brakes, were owned, operated, and controlled exclusively by the lessee, whose duty it was to keep the same in repair, and the lessor...