Illinois Cent. R. Co. v. Rogers

• Decision Date: 08 March 1915
• Docket Number: 2717.
• Parties: ILLINOIS CENT. R. CO. v. ROGERS.
• Court: U.S. Court of Appeals — Fifth Circuit

221 F. 52

ILLINOIS CENT. R. CO. v. ROGERS.

No. 2717.

United States Court of Appeals, Fifth Circuit.

March 8, 1915

Rehearing Denied April 5, 1915.

Hunter C. Leake and Gustave Lemle, both of New Orleans, La., and R V. Fletcher and Blewett Lee, both of Chicago, Ill., for plaintiff in error.

Armand Romain, of New Orleans, La., for defendant in error.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

MAXEY District Judge.

In the disposition of this case the ruling of the trial court on the exceptions of the railroad company, raising the question of jurisdiction, will be first considered. The question involved was whether the case made by the petition of the plaintiff came within the provisions of the Employers' Liability Act. The court has no jurisdiction otherwise, since the parties are citizens of states other than Louisiana; and the exceptions presented the sole question as to the applicability of the statute to the facts alleged in the petition.

These facts being apparent on the face of the pleadings and the question involved being one of law, if error was committed it was one apparent of record, and need not have been presented by a bill of exceptions. Moline Plow Co. v Webb, 141 U.S. 616, 12 Sup.Ct. 100, 35 L.Ed. 879. The objection, therefore, of counsel for the defendant in error to the consideration of the question, is not well taken. To sustain his contention counsel relies on the following allegations of his petition:

'That the general and usual employment of said Frank Rogers was to maintain in good order the paint house or shops referred to, to take care of all the paints, oils, varnishes, ladders, and other materials owned and used by the said defendant in painting, manufacturing, and repairing the cars, engines, and other equipment owned and used by the said defendant in its business as a common carrier by railroad between the state of Louisiana and other states of the Union, etc., and to keep in order and good condition the signs or stencils or other instruments used by said defendant in the manufacture and repair of the cars and other equipment owned and used by said defendant in its said interstate business. * * * While petitioner's said son was at work, at a point next to the entrance of said paint shop, and while he was stationed near the said railroad track, in the act of cleaning certain stencils used by said defendant to mark the cars owned and used by said defendant in its interstate business aforesaid, he was suddenly, negligently, and unlawfully run into, knocked down, and run over by engine No. 562, owned by the said defendant herein, and operated by one of the hostlers in the employ of the said defendant. * * * That at the time of said accident the said railroad company was a common carrier by railroad, engaged in interstate commerce between the state of Louisiana and the other states of the Union, and used the said yards at Harahan for the purposes hereinabove set forth of building and repairing its cars, engines, and equipment used by it in its interstate business.'

The court made the following order upon the exceptions interposed by the railroad company:

'Whereupon, and on due consideration thereof, the court being of the opinion that the allegations in plaintiff's petition state a case arising under the Employers' Liability Act, it is ordered by the court that the venue be maintained, and that the exceptions be and the same are hereby overruled.'

In thus holding we think the trial court was in error. So far as we are advised the latest expression of the Supreme Court upon the particular questions here involved will be found in the case of Illinois...