Spry v. Norfolk & W. Ry. Co., 3136.

• Decision Date: 17 June 1931
• Docket Number: No. 3136.,3136.
• Citation: 50 F.2d 598
• Parties: SPRY v. NORFOLK & W. RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

50 F.2d 598 (1931)

SPRY v. NORFOLK & W. RY. CO.

No. 3136.

Circuit Court of Appeals, Fourth Circuit.

June 17, 1931.

W. H. D. Preece, of Williamson, W. Va., for appellant.

F. M. Rivinus, of Roanoke, Va., Goodykoontz & Slaven, of Williamson, W. Va., and Holt & Holt, of Huntington, W. Va., for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The administrator of Andrew Spry brought an action at law against the Norfolk & Western Railway Company in the circuit court of Mingo county, W. Va., alleging that the death of the deceased was caused by the wrongful act of the railway company in failing to provide a safe place for him to work while engaged as its employee in its colliery or mine in Mingo county, W. Va. It was charged that the roof of the mine was so carelessly supported that on February 4, 1928, it fell upon Spry and inflicted injuries from which he died. On motion of the defendant, the case was removed to the District Court of the United States for the Southern District of West Virginia on the ground of diverse citizenship. The plaintiff moved to remand the case, claiming that it was a suit based upon the Federal Employers' Liability Act (45 USCA §§ 51-59), and, under the terms of that statute (sections 1 and 6 45 USCA §§ 51, 56), could not be removed; but the District Court concluded that the decedent was not engaged in interstate commerce at the time of his accidental injury, and that the Federal Employers' Liability Act therefore had no application. Thereupon the defendant, in addition to a general issue plea, filed a special plea in which, amongst other things, it was alleged that the coal mined by the plaintiff was intended to be used by the railway company in its business of transportation in intrastate and interstate commerce. The plaintiff replied generally to this special plea, and, a jury trial being waived, the issue raised was submitted to the court upon a stipulation of fact.

Therein it appeared that, at the time of the fatal injury, the railway company was the owner and operator of the Howard Mine or Colliery, and that the tipple of the mine was connected with the main line of the railway by a spur track; that the railway company, through the employees of its fuel department, mined and loaded coal exclusively for its fuel purposes, and not for sale or transportation as an article of commerce; that the miners engaged in the mine were confined exclusively to mining coal, and had nothing to do with the work of transportation of the railway company; that Spry at the time of his death was an employee of the fuel department, engaged exclusively in loading coal into a mine car on tracks leading out of the mine to the tipple; and that, while so engaged, he met with the fatal injury described in the complaint.

The stipulation further showed that the railway company, through its fuel department, prior to the accident, had complied with the Workmen's Compensation Act of West Virginia (now codified in chapter 23 of the Official Code of West Virginia 1931 23-1-1 to 23-5-1) by paying into the Workmen's Compensation Fund of the state the premiums required by the act, and had also given notice to its employees, in the manner required by law, that it had taken advantage of the act; and that, subsequent to the...