Case 19 — Action by Andrew Swice's Admx. against the Mays-ville & Big Sandy By. Co., a Kentucky Corporation, and the Chesapeake *&*Ohio By. Co., a Virginia Corporation, to Be-cover Damages rob the Death of Plaintiff’s Intestate.—

June 20.

#### Swice’s Admx. v. Maysville & B. S. Ry. Co., &c.

APPEAL FROM MASON CIRCUIT COURT.

•On Behearing. Behf.aring Granted, Former Opinion Withdrawn and Judgment Affirmed.

Bailroads — 'Lease of Lines — Liability of Lessor — Servant’s Injuries.

Held: Where a railroad company, under valid legislative authority, leases its lines to another road, it is not liable) ais an employed for injuries caused to employes of the lessee through the lessee’s negligence.

A. E. COLE & SON, ATTORNEYS FOR APPELLANT.

The contention of appellees is thait section 6, Kentucky Statutes, does not give a joint cause of action, but was enacted solely for the purpose of enlarging the clas's of persons who may recover at common law, that when plaintiff’s intestate accepted employment he forfeited his rights as a member of tibe public, ■and therefore the only duty owed him was that growing out of bis contract of employment with the Chesapeake &' -0. By. Co., to which contract the Maysville & B. S. By. Co., not being privy, it is therefore not liable for the tort.

This contention being supported in part by the case of Hukill v. Maysville & B. S. By. ICo., a decision of the United States Circuit Court of Appeals, by Judge Taft, not construing a statute involved in the case at bar, the lower court preferred' to follow it, and refused to follow the. ease of McCabe’s Admx v. Maysville & B. S. By. Co., 68 S. W., 1054; Illinois Central B. Co. v. Winston’s Admr., 23 B., 1233, and the casa of Cin., N. O. *&*T. P. By. Co. v. Cook's Admr, 23 B., 2411, and therefore •ordered the case to he sent to the Federal court. The Mason Circuit Court being an integral part of the judicial machinery o.f this State, and-bound by the decisions of its highest tribunal, we submit in all fairness that such- subservience to the deci*254sions of the Federal court is violative of the constitutional rights of the citizens of this State, and in the derogation of the State’s sovereignty.

Wherefore a reversal is respectfully asked.

AUTHORITIES CITED.

Ky. Stats., see. 841; L. & N. R. Co. v. Louisville Trust Co., 174 U. S., 566; Orient Ins. Co. v. Daggs, 172 U. S., 557; Hooper v. California, 155 U. S., 648; N. N. & -M. V. íCo. v. McDohald Brick Co.’s Assignee, 59 S. W., 334; Cam. v. M. & O. R. Co., 23 R., 788; Stout v. R. R. Co., 8 Fed. Rep., 794; Louisville Trust Co. v. Louisville, &c., Ry. Co., 75 Fed. Reip., 437; Am. & Eng. Ency. of Law, vol. 13 (2d. ed.), p. 84; T'ullis v. Lake' Erie-R. Co., 175 U. S., 348; Mo. K. *&*T. R. Co. v. McCann, 174 U. . S., 580.

E. L. WORTHINGTON and W. H. WADSWORTH, for appellees.

POINTS AND AUTHORITIES'.

1. A r'ailroad company which has leased its road to .another company is not liable to the servants of its lessee for the lessee’s-negligence. McCabe v. -Maysville R. Co., 23 Ky. Law Rep., 2328; Freeman’s note to Lee v. Southern Pac. R. Co., 58 Am. St. Rep., 152; Hukill v. Maysville R. Co., 72 Fed. Rep., 745; East Lin-e Ry. Co. v. Culberson, 13 Am. S't. Rep., 805; s. c., 72'. Texas, 375; Baltimore & Ohio Ry. Co. v. Paul, 143 Ind., 23; Virginia Ry. Co. v. Washington, S6 Va., 629; Lee v. Southern Pac. R., Co., 58 Am. St. Rep., 140.

2. A compliance by a foreign corporation with 'the requirements of ©ection 841, Kentucky Statutes, does rn'ot make it a citizen of Kentucky in the meaning of the Federal Constitution conferring jurisdiction on thei Federal courts in comtro'versies between citizens of different States. A corporait-ion is-not a citizen at all within the meaning of the Federal Constitution. St. Louis Ry. Co. v. Jaimes, 161 U. S., 545; Louisville R. Co. v. Louisville Trust Co., 174 U. S., 552; Taylor v. Illinois Central R. Co., 89 Fed. Rep., 119; Walters-v. Chicago -R. Co., 104 Fed. Rep., 377; Westheider v. Wabash R. Co., 115 Fed. Rep., 840; Hollingsworth v/Southern Ry. Co., 86 Fed. Rep., 353.

Opinion of the court by

JUDGE HOBSON

Affirming.

Appellant filed tbis suit against the Maysville & Big' Randy Railroad Company, a Kentucky corporation, and the Chesapeake & Ohio Railway Company, a Virginia cor*255poration, 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. 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.

*256In Lee v. Southern Pacific Railroad Co., 116 Cal., 97, 47 Pac., 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 employe under such circumstances is a false claim and quantity. It does, not exist. The responsibility of tha lessor company, when it attaches, does not spring from this relationship,, but arises from a failure of tha lessor company to perform its duty to the public, of which public the employe of the operating company may be regarded as one.. Thus, in those cases’ where the injury has resulted to an employe of the operating company by reason of the, negligence of a fellow servant, or want of skill and care in the-lessor company in managing the road, or in negligence in furnishing suitable appliances,, these and kindred matters, being entirely and exclusively within the control of the lessee company, for injury which may result the lessor' is in no way responsible.” In a note to this case in 58 Am. St. Rep., 155, after a review of many cases, it is said: “As. to employes of a lessee corporation, the weight of authority, whether the lease is authorized or not, is to the effect that they can not recover for injuries received through the negligence of such lessee or its servants or agents. Virginia, etc., Ry. Co. v. Washington, 86 Va., 629 [10 S. E., 927, 7 L. R. A., 344]; Hukill v. Maysville, etc., R. R. Co. (C. C.), 72 Fed., 745. The duties which are owed by a railroad company to its servant are not duties owed to him in common with the public, but grow out of the contract of service. He assumes the relation of servant to his employer voluntarily, and out of it arises the reciprocal obligations from *257one to the other.- It seems to us that the relation of the servant of the company operating the road to the owner is very different from his relation to his employer, and that the relation of the owner of the road to him is different ,from its relation to the general public. His contract is mot with the company owning the road; and it may be asked, does the latter owe him the duty of a master to his servant, or guaranty that the master with whom he has voluntarily contracted will perform its obligation to him? It may be that if the injury had occurred by reason of a defect in the roadbed or track, and not by reason of a defect in the engine, the company charged with the duty of keeping up the road would be liable. But if it were true that the injury was caused entirely by another company operating the owner’s roadbed, and was inflicted upon one of its own employes by reason of a defect in machinery entirely under its control, it is difficult to see upon what principle of policy or justice the lessor would be held liable merely because it owned the road. East Line, etc., Ry. Co., v. Culberson, 72 Tex., 375 [10 S. W., 706, 3 L. R. A., 567], 13 Am. St. Rep., 805.”

‘ 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.

*258The other questions discussed were disposed of in Davis’ Adm’r v. Chesapeake & Ohio Ry. Co. (decided at this term), 25 R., 342, 75 S. W., 275.

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.