Flood v. Wheeling & Lake Erie Ry. Co. ( 1950 )

JONES, Chief Judge.

This is an action for damages for personal injury brought pursuant to the terms of Sections 51-60, 45 U.S.C.A. Joined as defendants are the Wheeling and Lake Erie Railway Company and the New York, Chicago & St. Louis Railroad Company. The former was the employer of the plaintiff at the time of the accident and the latter since the accident has allegedly acquired all assets and liabilities of the Wheeling. N

The New York, Chicago & St. Louis Railroad Company moves to dismiss this action as to it because it was not the employer of the plaintiff at the time of the accident. It cites several Ohio cases which hold that the lessor of a railroad is not liable for injuries to the employees of the lessee. From this it is concluded that the lessee is not liable for the injuries of the employees of the lessor.

Assuming it to be true, as alleged by plaintiff, that the New York, Chicago & St. Louis Railroad Company has assumed the liabilities of the Wheeling and Lake Erie Railway Company, it would appear that the plaintiff has stated a cause of action against the New York, Chicago & St. Louis Railroad Company. In effect the complaint sets forth grounds for alternate relief against the defendants. Plaintiff may, by the provisions of Fed.Rules Civ. Proc. rule 20, 28 U.S.C.A. join these defendants if he so wishes.

The motion will be denied.