223 F. 427 | N.D.N.Y. | 1915
This is an action to recover damages for personal injuries alleged to have been received by the plaintiff, Frank Lombardo, an employe of the defendant, on or about the 16th day of
“That on or about November 16, 1914, at about 8 a. m., while plaintiff was employed as a laborer in the track gang which was repairing defendant’s tracks in the yard of the West Virginia Pulp & Paper Company, and while plaintiff was engaged in the performance of his duties at the aforesaid time and place, shoveling dirt from between the ties under the rails of said tracks, said place where plaintiff was working being a short distance south of a place where a steel or iron joint which holds two rails together was being broken by-means of a large sledgehammer and a chisel, and while he was engaged in his duties aforesaid and in close proximity to where said joint was being broken, without fault or negligence on his part, but solely by reason of defendant’s negligence hereinafter set forth, said Prank Lombardo was struck on the right side of his head and near the right ear by a large piece of steel or other metal from said joint, rail, or hammer, and received the injuries herein complained of.”
Subdivisions 7 to 11, inclusive, set out acts of negligence in not providing a safe place for plaintiff in which to work, in failing to provide plaintiff with safe and proper tools and appliances, in failing to properly inspect the conditions surrounding the work in which plaintiff was engaged, in failing to make suitable rules and regulations, and in requiring plaintiff to engage and work in a dangerous occupation and failing to inform and instruct him as to the dangers of the employment. Mechanicville is many miles from the state line, and on the face of the complaint it appears that all alleged acts of negligence operating to produce the injury complained of were committed in the state'of New York, where the plaintiff was injured. The accident was not connected with the running or operation of any train or engine.
The plaintiff is a citizen and resident of the state of New York. The defendant is a corporation of the state of Massachusetts, and owns and operates a railroad running into the state of New York and-to Mechanicville, on and over which it carries freight and passengers in both interstate and intrastate commerce. It owns and maintains these tracks which so carry cars in both intrastate and interstate commerce, but the tracks which plaintiff was engaged in repairing were wholly in the state of New York, and here the negligence, if any, operated, and here the accident happened and the injuries were received.
The complaint alleges that the plaintiff, at the time he received his injuries, was engaged in interstate commerce; but the facts stated and alleged show that he was not so engaged unless it be that the employe of a railroad company which does both interstate and intrastate commerce, and which owns tracks extending into two or more states, over which it runs trains, is engaged in interstate commerce when engaged in repairing such tracks of such railroad company at a given point far from the state line, which repairs have no special reference to interstate commerce or business. The plaintiff was engaged in making repairs on the tracks of the defendant company, but there is nothing in the record to show that such repairs were being made for
(1) That “.any suit of a 'civil nature, at law or in. equity, arising under the Constitution or laws of the United States, * s: * of which the District Courts of the United States are given original jurisdiction by this title [The Judiciary], which may now he pending or which may hereafter he brought, in any state court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district;” and (2) “any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title LThe Judiciary], and which are now pending, or which may hereafter be brought, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state;” and (3) “where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the District Court of the United States for the proper district, at any time before the trial thereof, when it should be made to appear to said District Court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause,” etc.
Then follows in the same section the following provision:
“Whenever any cause shall be removed from any state court into any District Court of the United States, and the District Court shall decide that iho cause was improperly removed, and order the same Ao be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the Dis-. trict Court so remanding such cause shall be allowed: Provided, that no case arising under an act entitled ‘An act relating to the liability of common carriers by railroad to their employSs in certain eases,’ approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shatl be removed to any court of the United States."
Construed as it plainly reads, this proviso absolutely prohibits the removal of every cause arising under the act referred to, even when within the three classes of cases referred to- and made removable by the prior provisions of the section. Section 28. That is, such a case (one arising under the Employers’ Liability Act) cannot be removed into the United States court, even when the necessary diversity of citizenship and amount in controversy exists, or when these facts exist and it also- appears that from prejudice or local influence, or both, the defendant will not be able to obtain justice in the state court. In view of the alleged absurdity of such a provision and distinction, it has been and is urged that the provision, properly construed and applied, means that cases arising under the federal Employers’ Liability Act shall not he removed from the state court to- the United States District Court for trial for the sole reason that they arise under a law of the United States, diversity of citizenship and requisite amount in controversy not being found; hut that when diversity of citizenship and requisite amount in controversy exist, or when from prejitdice or local influ
“That no case arising under an act entitled * * * [a law of the United States] shall for that cause or reason be removed to any court of the United States.”
In Van Brimmer v. Texas, etc., R. Co., 190 Fed. 394 (C. C., E. Dist. of Texas), it was held that a case arising under this federal Employers’ Liability Act may be removed to the federal court if diversity of citizenship and requisite amount^ in controversy exist, or if on account of prejudice or local influence the defendant cannot obtain justice in the state court. Other cases hold that it was the purpose of Congress to forbid the removal of any case arising under the federal Employers’ Liability Act and take these cases absolutely and entirely from the operation of the removal statutes. It is urged that it was the purpose of Congress, plainly expressed, to prohibit the removal of all cases arising under the act referred to to the federal court for trial and thus limit federal jurisdiction and at the same time secure to the injured employé a trial in the court of his own selection.
Then arises the question: May a case brought under the act referred to- in a state court be removed into the District Court of the United States ? This right of removal, if it exists, must have been conferred by some act of Congress. This right of removal, if it exists at all, is conferred by section 28 of the Judicial Code, read and construed as a whole, and from which must be deduced the policy and intention of Congress. It seems to me that if Congress had intended to leave any case, arising under the act referred to, removable to the federal court, it would have expressed or indicated such intention in some way, and would not have used the broad and comprehensive language it did at the very end of the section providing for the removal of causes, and which
In Ex parte Roe, 234 U. S. 70, 34 Sup. Ct. 722, 58 L. Ed. 1217, the District Judge had followed Van Brimmer v. Texas Pac. R. Co., supra, and refused to remand the case. It was sought by mandamus to compel a remand. This was denied, the court holding that, if the ruling was erroneous, the place” to correct such error was on appeal from a final judgment in the case. The ruling in the Van Brimmer Case was referred to in stating the action of the court below, but the holding in that case was neither approved nor disapproved, and the court said;
“Wo are not here at liberty to consider the merits of the question involved in the District Court’s ruling.”
“One engaged in the work of maintaining tracks, bridges, engines, or cars in proper condition after they have become, and during their use as, instrumentalities of interstate commerce, is engaged in interstate commerce; and this, even if those instrumentalities are used in both interstate and intrastate commerce.”
This, of course, settles the proposition that this plaintiff was engaged in interstate commerce when he received his injuries, as he was repairing a track used by defendant to carry both kinds of commerce The defendant was also engaged in interstate commerce, as it was operating its road and using its tracks and having repairs made at the time. See, also, St. Louis, San Francisco & Texas R. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, and North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.
In Illinois Central Railroad Co. v. Behrens, Administrator, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, it
Having this case in view, the Circuit Court of Appeals in the Fifth Circuit, in Illinois Central R. R. Co. v. Rogers, 221 Fed. 52, 136 C. C. A. 530, held that an allegation in the petition that the railroad company was engaged in interstate commerce at the time of the a'ccident did not sufficiently show that the engine which struck and injured the employé was engaged in interstate commerce at the time of the accident, and hence that there was no sufficient allegation that the defendant itself was engaged in interstate commerce at the time the employé was injured. The injured employé, who- was injured and killed by being struck by an engine of the defendant, was at the time engaged in cleaning stencils which were used by the railroad company to mark cars owned and used by it in interstate commerce. The court held that this' employé was not engaged in interstate commerce.
If the employé of a railroad company, in carrying bolts to repair a bridge over which both interstate and intrastate trains run, is engaged in interstate commerce, for the reason he is repairing or aiding to repair an instrumentality of interstate commerce (see Pedersen Case), it is difficult for this court to understand how or why it is that an employé of a railroad company who is cleaning for use and to make fit for use an instrumentality used to designate a car which is owned by the company and used by it in-interstate commerce is not engaged in interstate commerce. In effect he is repairing an instrumentality used in interstate commerce, and, as the case shows, that instrumentality-upon which he was at work, to wit, the stencils, was used by the company in interstate commerce only.
However, in view of this decision of the Circuit Court of Appeals, and conceding it to be good law, this court is of the opinion that the Pedersen Case controls, and that a person engaged in repairing the tracks of a railroad company is engaged in interstate commerce, even though the repairs consist in shoveling the dirt from between the ties under the rails of the tracks used to carry interstate trains. A laborer so employed is as much engaged in interstate commerce as another employé would be when engaged in carrying bolts or spikes to fasten the
If this court had the power to amend the proviso to the removal statute, it would speedily do so, and establish the rule declared in the Van Brimmer Case, as it is of the opinion that such ought to be the law. It is a harsh rule to deprive carriers engaged in interstate commerce of the privilege of removing their cases to the federal courts for trial, when sued by an employé, when the necessary diversity of citizenship exists and the requisite amount is in controversy.
Construing the proviso quoted as my judgment tells me it should be and must be construed, and following the great weight of authority as to the construction to be given it, this court feels constrained, notwithstanding the Van Brimmer Case and the Rogers Case, .above cited, to grant the motion to remand.