Oliver Wendell Holmes, Jr.

“ The ground upon which the Kentucky court of appeals held the Kentucky railroad jointly liable with the Illinois Central for the injuries sustained is not very clear, in view of the fact that the opinion, in some parts of it, seems to make the liability depend upon the failure to construct a proper road, and in other parts seems to rest the responsibility upon the continuing duty of the lessor railroad company to furnish and maintain a safe roadbed in order to discharge the duties which it had undertaken by accepting the franchise which the state had conferred upon it. ”

“ It is true that where one has a cause of action of which both state and Federal courts have jurisdiction, his motive in bringing the action in the one jurisdiction or the other is immaterial, and he may sue in the state court because he preferred that jurisdiction to a Federal court to which he had an equal right to go. ”

“ 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 the employee of the operating company may be regarded as one. ”

“ Thus, in those cases where the injury has resulted to an employee of the operating company by reason of the negligence of a fellow servant, or of want of care of the lessee 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 the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect, and to sue the tort feasors jointly if he sees fit, no matter what his motive, and therefore an allegation that the joinder of one of the defendants was fraudulent, without other ground for the charge than that its only purpose was to prevent removal, would be bad on its face. ”

“ In this connection, the court of appeals of Kentucky, in the opinion in this case, 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 relationship of employer and employee under such circumstances is a false claim and quantity. It does not exist. ”

“ The negligence charged against the defendant railroad companies was that the roadbed, rails, track, cattle guards, ties, fences, and right of way of the railroad were allowed to be, and for a long time had been, in a weak, rotten, ruinous, and defective condition ”

“ Rep. 1030; Burlington C. R. & N. R. Co. v. Dunn and Crehore v. Ohio & M. R. Co. supra; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U.S. 298, 34 L. ed. 963, 11 Sup. Ct. Rep. 306; Madisonville Traction Co. v. St. Bernard Min. Co. supra. ”