Neiswonger v. Goodyear Tire & Rubber Co.

• Decision Date: 22 February 1929
• Docket Number: No. 15560.,15560.
• Citation: 35 F.2d 761
• Parties: NEISWONGER v. GOODYEAR TIRE & RUBBER CO. et al.
• Court: U.S. District Court — Northern District of Ohio

35 F.2d 761 (1929)

NEISWONGER v. GOODYEAR TIRE & RUBBER CO. et al.

No. 15560.

District Court, N. D. Ohio, E. D.

February 22, 1929.

Bair & Roach, of Alliance, Ohio, for plaintiff.

Baker, Hostetler & Sidlo, of Cleveland, Ohio, for defendants.

WEST, District Judge.

It is difficult to say whether the petition intends to aver that the airship was making an interstate or intrastate flight when the accident happened. If interstate, the court feels that the petition sufficiently states plaintiff's claim as one arising under the laws of the United States, to give this court jurisdiction. He makes other claims of negligence; but one element in his case is alleged violation of that section of the Air Commerce Act of 1926 which forbids the navigation of aircraft contrary to the air traffic rules established by the Secretary of Commerce. Sections 173 and 181, tit. 49, U. S. C. (49 USCA §§ 173, 181). I am of opinion that plaintiff is in the class of persons intended to be within the benefits of the 500-foot altitude rule, and that his right to recover damages for its violation, though not expressed, is implied. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 36 S. Ct. 482, 60 L. Ed. 874.

In their briefs, counsel for defendants cite the headnote in Western Union Telegraph Co. v. Railroad Co., 178 U. S. 239, 20 S. Ct. 867, 44 L. Ed. 1052. But in McGoon v. Railway Co. (D. C.) 204 F. 998, 1001, it is pointed out that cases which use the expressions so relied on do not assert a right created by the federal law; and Judge Amidon states the affirmative rule thus: "Whenever federal law grants a right of property or of action, and a suit is brought to enforce that right, such a suit arises under the law creating the right, within the meaning of statutes defining the jurisdiction of federal courts." Earnhart v. Switzler (C. C. A.) 179 F. 832, also cited, is not in point, as it involved no right created by federal law. Isaac Kubie Co. v. Lehigh Valley R. R. Co. (D. C.) 261 F. 806, was a case that had been removed for diversity of citizenship and because arising under federal laws regulating commerce. It was decided on a question of venue. The court held that the fact that the case involved violations of regulations of the Interstate Commerce Commission did not make the jurisdiction of the federal courts exclusive. In the case at bar, the question is as to the existence and not the exclusiveness of this court's jurisdiction.

If the defendants, or either of them, were engaged in an intrastate flight when the plaintiff was injured, the application of the air traffic rule does not necessarily follow. The Air Commerce Act was passed under the power of Congress to regulate interstate and foreign commerce. If the circumstances and conditions under which air commerce is carried on are such that it is necessary for the altitude rule to apply to and regulate intrastate flights in order to protect interstate movements, then it will so apply, the same as to an interstate flight. Railroad Commission of Wis. v. Ry. Co., 257 U. S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A. L. R. 1086; New York v. U. S., 257 U. S. 591, 42 S. Ct. 239, 66 L. Ed. 385; Texas & Pacific Ry. Co. v. Rigsby, supra; Zollman's Law of the Air, § 58.

It was evidently the thought of Congress that navigation of the air would be generally if not entirely subject to the federal act. This is shown by the text of the law and by the omission of any expression confining its operation to...