140 F. 777 | U.S. Circuit Court for the Eastern District of Illinois | 1905
This is an action on the case by the plaintiff against the defendants for personal injuries, while employed as a-
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 & 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 switch-men 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 company had no control, unless this court decides that its ownership of the track and right of way by operation of law conferred such control upon it. It does not appear that it is claimed or charged that the track or right of way was in fault in contributing to the plaintiff’s injury, and it is conceded the lease between the two corporations was duly authorized by the laws of Illinois. No stipulation contained in the case is shown by which the lessor company assumed liability for the negligence of the lessee, nor does it appear there is any requirement of that nature in the statutes of the state by which the leasing is authorized.
The question for decision, therefore, is whether the mere leasing of the right of way, track, turnouts, and stations to be used and operated exclusively by another ipso facto reserves or creates a liability against the lessor for the negligence of the lessee in its own exclusive use of operating appliances owned and controlled by it upon the track and right of way possessed and used under the terms of the lease. The Supreme Court of Illinois has decided (Railway Co. v. Hart, 209 Ill. 414, 70 N. E. 654, 66 L. R. A. 75) that both lessor and lessee companies are liable for such negligence, and that a joint action may be maintained against them for damages. The weight of federal decisions establish
The motion of the plaintiff to remand the cause to the state court is overruled.