Eng v. Southern Pac. Co. , 210 F. 92 ( 1913 )

BEAN, District Judge.

This action was commenced in the state court by an employé of the defendant company to recover damages for an injury alleged to have been received by him while engaged in framing up a new office in a freight shed belonging to the defendant and in sawing boards and nailing them in place on the wall. It appears from the complaint that the defendant is engaged in both intrastate and interstate commerce, and that the freight shed in question was owned, controlled, and operated by it in furtherance of and in carrying on such business for both interstate and intrastate shipments of freight. The action was removed to this court on the ground of diversity of citizenship, and the plaintiff now moves to remand, for the reason that it is one arising under the federal Employers’ Liability Act, and is not removable.

[1] The federal statute (35 Stats, at Large,.65) makes every common carrier, while engaged in interstate commerce, liable in damages for the injury to or death of any person while he is employed by such carrier in such commerce, and gives courts of the United States and the state courts jurisdiction of actions arising thereunder. It is also provided that no case arising under the act, brought in a state court of competent jurisdiction, shall be removed to any court of the United States, and the uniform holding is that such an action is not removable, although it would otherwise be removable on the ground of diversity o.f citizenship. Burnett v. S., P. & S. Ry. Co., 210 Fed. 94, decided by this court October 13, 1913, and Patton v. Cincinnati, N. O. & T. P. Ry. (D. C.) 208 Fed. 29, and authorities there cited.

[2] When a carrier is engaged in both intrastate and interstate commerce, using the same instrumentalities, appliances, and employés im both classes of commerce, it is difficult to draw the line of demarcation between the two classes of employment; but the result of the decisions up to this time seems to be that, when the work in which the employé was engaged at the time of his injury is so closely connected with interstate commerce as to be a part thereof, it comes within the statute. It has been so held in the case of persons engaged in repairing tracks, bridges and cars used in both state and interstate commerce (Pederson v. D., L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, decided by the Supreme Court May 26, 1913; Zikos v. Oregon R. & Navigation Co. [C. C.] 179 Fed. 893; Northern Pac. Ry. Co. v. Maerkl, 198 Fed. 1, 117 C. C. A. 237; Stafford v. Norfolk & W. Ry. Co. [D. C.] 202 Fed. 605), and in coupling cars so used while standing on a switch (Johnson v. Great Northern Ry. Co., 178 Fed. 643, 102 C. C. A. 89).

[3, 4] The principle seems to be that one employed at the time of his injury in the use of or maintaining in proper condition any instrumentality or appliance used by the carrier in interstate commerce comes within the statute, although such instrumentality or appliance may also be used for intrastate business. Now, freight sheds, depots, and warehouses or other facilities provided and used by a carrier for receiving, handling, and discharging interstate freight are, I take it, instrumentalities used in interstate commerce under the doctrine of the cases, and are so closely connected therewith as to be a part thereof for the purposes of the federal Employers’ Liability Act.

Claim is made that, since plaintiff at the time of his injury was at work in framing a new office in the freight shed, he is in the position of one employed to construct buildings, tracks, engines, or cars, which have not yet become instrumentalities of commerce. But the freight shed in question was being so used by the defendant in its interstate business. The work in which the plaintiff was engaged, as appears from the complaint, was in the nature of the repair of an instrumentality so used, and not the construction of new work.

I conclude, therefore, that the motion -to remand should be allowed.