Swice's Adm'x v. Maysville & B.S.R. Co.

• Decision Date: 20 June 1903
• Citation: 75 S.W. 278,116 Ky. 253
• Parties: SWICE'S ADM'X v. MAYSVILLE & B. S. R. CO. et al.
• Court: Kentucky Court of Appeals

75 S.W. 278

116 Ky. 253

SWICE'S ADM'X v. MAYSVILLE & B. S. R. CO. et al.

Court of Appeals of Kentucky.

June 20, 1903

"To be officially reported."

On rehearing. Rehearing granted, judgment affirmed, and former opinion withdrawn.

HOBSON J.

Appellant filed this suit against the Maysville & Big Sandy Railroad Company, a Kentucky corporation, and the Chesapeake & Ohio Railway Company, a Virginia corporation, to recover for the death of her intestate. The Chesapeake & Ohio Railway Company filed its petition to remove the case to the Circuit Court of the United States for the Eastern District of Kentucky. The court ordered the removal, and the plaintiff appeals.

The Chesapeake & Ohio Railway Company is the lessee of the Maysville & Big Sandy Railroad Company. The intestate was a laborer in the service of the Chesapeake & Ohio Railway Company on a coal dock in a coal yard near the city of Maysville, and while walking on a narrow elevated platform adjoining the coal dock, he fell therefrom, by reason, as alleged, of its not being sufficiently secured. The order of the circuit court removing the case rests on the idea that no cause of action was stated against the Maysville & Big Sandy Railroad Company, and the fact that it was made a defendant to the petition did not affect the right of the real defendant to a removal of the case. The lease made by the Maysville & Big Sandy Railroad Company to the Chesapeake &amp Ohio Railway Company, and the authority under which it was made, are set out in the case of McCabe's Adm'x v. Maysville & Big Sandy Railroad Co., 66 S.W. 1054. It was there held that the lessor company continued liable to the public for the discharge of the obligation imposed on it by law; but whether it would be liable to the servants of the lessee for injuries received by reason of its negligence was a question not decided. The cases holding that the lessor is not liable for injuries to the servants of the lessee from its negligence are referred to in the opinion, and distinguished from the case before the court. The case now presented requires a determination of this question, as Swice was in the employment of the lessee, and was injured, as alleged, by reason of its negligence.

In Lee v. Southern Pacific Railroad Co., 116 Cal. 97, 47 P 932, 38 L.R.A. 71, 58 Am.St.Rep. 140, the court, in passing on the question, said: "In all cases where a valid lease is found (or, as in this discussion, where it is assumed) the lessor company owes no duty whatsoever as an employer to the operatives of the lessee company. The claim of the relationship of employer and employé under such circumstances is a false claim and quantity. It does not exist. The responsibility of the lessor company, when it attaches, does not spring from this relationship, but arises from a failure of the lessor company to perform its duty to the public, of which public...