Lombardo v. Boston & M.R.R.

• Decision Date: 17 May 1915
• Citation: 223 F. 427
• Court: U.S. District Court — Northern District of New York
• Parties: LOMBARDO v. BOSTON & M.R.R.

223 F. 427

LOMBARDO v. BOSTON & M.R.R.

United States District Court, N.D. New York.

May 17, 1915

Leary &amp Fullerton, of Saratoga Springs, N.Y., for the motion.

Jarvis P. O'Brien, of Troy, N.Y., opposed.

RAY District Judge.

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 November, 1914, at Mechanicville, in the state of New York while he was engaged and working as a laborer in a track gang and engaged at the time in repairing defendant's tracks at Mechanicville in the yards of the West Virginia Pulp &amp Paper Company at said place. The sixth subdivision of the complaint reads as follows:

'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 Frank 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 the special purpose of running interstate trains or trains carrying interstate commerce.

Section 28 of the Judicial Code (Act of March 3, 1911) provides for the removal of causes from the state courts to the federal courts, and provides generally:

(1) That 'any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, * * * of which the District Courts of the United States are given original jurisdiction by this title (The Judiciary), which may now be pending or which may hereafter be 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 (The 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 the cause was improperly removed, and order the same to 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 District 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 employes in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shall 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 be 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...