McAllister v. Chesapeake & O. Ry. Co.

Decision Date27 May 1912
PartiesMcALLISTER v. CHESAPEAKE & O. RY. CO. et al.
CourtU.S. District Court — Eastern District of Kentucky

Allen D. Cole, of Maysville, Ky., and Wm. T. Cole, of Greenup, Ky for plaintiff.

Worthington Cochran & Browning, of Maysville, Ky., for defendants.

COCHRAN District Judge.

This cause is before me on motion to reconsider motion to remand heretofore overruled. The grounds of my action, in overruling motion to remand, may be found in the opinion delivered by me on application for a preliminary injunction in a suit in equity between the parties hereto, in which the defendant Chesapeake & Ohio Railway Company, the nonresident and removing defendant, sought an injunction against the further prosecution of this suit in the state court after the filing therein of its petition and bond for removal, which application I sustained; my action in so doing being affirmed by the Court of Appeals for this circuit. The opinion is reported in connection with that of the appellate court. McAlister v. Chesapeake & Ohio Ry. Co., 157 F. 740 85 C.C.A. 316, 13 Ann.Cas. 1068.

The affirmance can hardly be said to have gone further than to approve my action in granting the preliminary injunction. The question whether the cause was removable was not necessarily involved, and the appellate court withheld any expression of opinion on that subject.

The basis of the motion to reconsider is certain decisions of the Supreme Court of the United States and of the Sixth Circuit Court of Appeals, rendered since the order overruling the motion to remand, which, it is claimed on behalf of plaintiff, established that I erred in so doing. The decisions relied on are as follows, to wit: I.C.R.R. Co. v. Sheegog, 215 U.S. 308, 30 Sup.Ct. 101, 54 L.Ed. 208; C., B. & Q.R.R. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521; Enos v. Ky. D. & W. Co., 189 F. 342, 111 C.C.A. 74.

I am led, by the earnestness with which it is claimed that the case should be remanded, to consider the matter afresh. And, at the outset, the case as presented by plaintiff's pleadings should be well understood. Her intestate was killed by being struck by a train on defendants' railroad. The resident and nonremoving defendant, Maysville & Big Sandy Railroad Company, was the owner of the railroad and the nonresident and removing defendant, Chesapeake & Ohio Railway Company, was in possession thereof and operating it under a lease from its codefendant. The lease was made pursuant to legislative authority and was valid. McCabe's Adm'r v. M. & B.S.R.R. Co., 112 Ky. 861, 66 S.W. 1054. The allegation as to the place where decedent was, when struck, is that he was 'at or near a public crossing. ' It is the same as if it had been alleged that he was not on the crossing, and was therefore a trespasser. This has been so decided by the Court of Appeals of Kentucky. In the case of Davis, Adm'r, v. Chesapeake & Ohio Ry. Co., 116 Ky. 144, 75 S.W. 275, Judge Paynter said:

'The averment that she was killed 'at or near' the private crossing should be construed that she was killed at a place on the track other than the crossing, because pleadings are to be construed most strongly against the pleader.'

And again:

'But, under the rule that a pleading must be construed most strongly against the pleader, the averment that she was killed 'at or near' the crossing is equivalent to the averment that she was not killed on it, but near the crossing; hence she was a trespasser.'

This being so, there was no duty on the part of the nonresident and removing defendant, the lessee, to be on the lookout for him so as to be able to give him any warning of its train's approach or to exercise any care as to him until his presence was discovered. Chesapeake & Ohio Ry. Co. v. See (Ky.) 79 S.W. 252; Chesapeake & Ohio Ry. Co. v. Nipp, 125 Ky. 49, 100 S.W. 246. The negligence charged is failure to discover his presence and to give him suitable warning of the train's approach, and excessive speed. The allegation is that the 'employes saw, or by the exercise of reasonable diligence could have seen,' the decedent. This was the same as if it had been alleged that decedent was not seen in time to avoid striking him. In the case of King v. Creekmore, 117 Ky. 172, 77 S.W. 689, Judge Paynter said:

'The amended petition supplements the original petition with the averment that the defendant knew of the defective and dangerous condition of the boiler, or by the exercise of ordinary care could have known of it at the time it was leased. It will be observed that it is not averred that defendant knew (without the alternative statement that by the exercise of ordinary care he could have known) of the defective and dangerous condition of the boiler when leased to Warren; therefore, there is no charge that he was guilty of acting in bad faith. Taking the alternative averment, in the light of the rule that a pleading must be construed strongly against the pleader, the only charge is that defendant was guilty of negligence in failing to exercise ordinary care to discover the defect in the boiler.'

It follows, therefore, that plaintiff fails to state a cause of action against the nonresident and removing defendant, the lessee. And none being stated against it, none was stated against the resident and nonremoving defendant, the lessor. For if the former was not liable for the death of plaintiff's intestate, the latter certainly was not. It is only through and because of the lessee's liability that it is possible for the lessor to be liable in such a case.

But for the time being, I pass this phase of the case and proceed to determine the removability of the case on the assumption that a cause of action is stated against the nonresident and removing defendant, the lessee, e.g., that it is alleged that decedent's presence was discovered in time to avoid striking him and it wantonly ran him down. In that case would the cause have been removable? This depends on two subordinate questions. One is whether it results therefrom, i.e., from such a cause of action being stated against the nonresident and removing defendant, the lessee, that one is stated against the resident and nonremoving defendant, the lessor. The other is whether if it does not so result, and there is therefore no cause of action stated against the latter, this circumstance, in and of itself, is sufficient to render the cause removable.

The determination of the first of these two questions must be in accordance with the law as laid down by the Court of Appeals of Kentucky. For it is now well settled by the Supreme Court of the United States that, when a suit is brought in a state court by a nonresident against two defendants, one a nonresident and the other a resident, between the latter of whom and the plaintiff, therefore, there is no diversity of citizenship, in determining whether there is liability on the part of the resident and nonremoving defendant and that jointly with the other defendant, which, if so, will render the cause nonremovable, the law of the state where the suit is brought governs. This was so recognized and held in the Sheegog and Willard Cases, supra, in each of which there was a suit against the lessee and lessor of a railroad to recover damages for a personal injury caused by the negligence of the lessee.

What we are concerned with, then, is the law of this state, as so laid down, as to the liability of a lessor of a railroad for an injury caused by the negligence of the lessee where there is a valid lease. For, as heretofore stated, such is the case we have here. Three cases have arisen and been decided by the Court of Appeals of Kentucky involving this question. They are the cases of McCabe v. M. & B.S.R.R. Co., supra; Swice v. M. & B.S.R.R. Co., 116 Ky. 253, 75 S.W. 278; Illinois Central R.R. Co. v. Sheegog, 126 Ky. 252, 103 S.W. 323. The first two were suits against the two defendants here. It is certain from these decisions that the lessor is not liable from the mere fact that the lessee is liable. This is so, because, though in two of these three cases, to wit, the McCabe and Sheegog Cases, it was held that the lessor was liable, in the other, to wit, the Swice Case, it was held that he was not. The thing to be ascertained from them is the line of demarcation between cases where the lessor is liable and those where he is not. In the McCabe Case plaintiff's intestate was a highway traveler and was struck by a passenger train operated by the lessee. The ground of the decision was that the duty of caring for highway travelers was imposed on the lessor by its charter, and the grant of power to lease should not be construed as including a grant of absolution from that duty in case of a lease. Judge Hobson said:

'The obligation to fence the track for the protection of stock or to receive passengers or freight or carry them safely is no more a duty of the lessor imposed upon it by its charter than its duty to avoid injury to the traveling public in the discharge of its functions, as in this case. By its acceptance of the franchises conferred by the state, the corporation assumed the corresponding burdens thereby imposed. These franchises it could not transfer to another without distinct legislative authority. The grant of power to lease the property is one thing; the grant of absolution from its responsibility is another, and is not to be inferred from a mere power to lease the road, where the corporation still retains its existence and the enjoyment of its franchises in the rents.'

In the Swice Case the plaintiff's intestate was a servant of the lessee, in its employ at one of its coal docks, and he lost his life by its negligence in relation to an elevated platform on which he had to walk in the performance of his...

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    ... ... the permission is granted. And it is as to this holding he ... says that the weight of authority supports it. McAllister ... v. Chesapeake & O. R. Co. , 198 F. 660, holds no more ... than that, under the law of Kentucky, a lessor railroad ... company is not liable ... ...
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