116 Ky. 253 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
Appellant filed tbis suit against the Maysville & Big' Randy Railroad Company, a Kentucky corporation, and the Chesapeake & Ohio Railway Company, a Virginia cor
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. Tlie lease made by the Maysville & Big Sandy Railroad Company to the Chesapeake & Ohio Railway Company, and the authority under which it was made, are set out in the ca'se of McCabe’s Adm’x v. Maysville & Big Sandy Railroad Co., 112 Ky., 861, 23 R., 2328, 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.
‘ When the Legislature authorized the Maysville & Big Sandy Railroad Company to lease its road, it necessarily contemplated that the lessee should have servants to run it; for the lessee could not otherwise operate it. And to hold the lessor responsible to these servants would not be to give fair effect to the legislative action. The question is fully discussed, also, in Virginia Midland Railroad Co. v. Washington, 86 Va., 629, 10 S. E., 927, 7 L. R. A., 344, and in that opinion other authorities are collected. It seems to us that the distinction made is sound, and there seems to be little or no conflict of authority on the subject.
The former opinion herein (see Swice’s Adm’x v. Maysville & Big Sandy Railroad Co., 24 R., 1142, 70 S. W., 1117) is withdrawn, and the judgment appealed from is affirmed.