210 F. 92 | D. Or. | 1913
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.
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.