Peek v. Boston & M.R.R.

• Decision Date: 17 May 1915
• Citation: 223 F. 448
• Parties: PEEK v. BOSTON & M.R.R.
• Court: U.S. District Court — Northern District of New York

223 F. 448

PEEK 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.

The plaintiff is a resident and citizen of the state of New York. The defendant is a foreign corporation, organized and existing under the laws of the commonwealth of Massachusetts but does business in the state of New York, into which state its tracks and railroad bed extend, and over which the defendant does business in interstate commerce by the transportation of freight and passengers. These tracks run from Mechanicville, Saratoga county, N.Y., through East Deerfield, Mass., to Boston, Mass. At the time the plaintiff received the injuries complained of he was employed by the defendant as a fireman on said railroad, and was engaged in the performance of his duties on a special freight train drawn by defendant's engine at East Deerfield, Mass., and which engine was at the time moving cars 'through defendant's yards at East Deerfield, Mass., bound for Greenfield, Mass., and containing freight and cars bound for points in New York. ' This is the language of the complaint, and I think is an allegation that the engine which was not bound for any point in New York, was moving a train of cars in defendant's yards at East Deerfield which cars were bound for Greenfield, Mass., and contained freight bound for points in New York, and that some of the cars in the train, whether loaded or empty, were also bound for points in New York. Assuming this to be so, the plaintiff was acting as fireman on the engine which was at the time moving cars forward on defendant's tracks to points in New York and other cars containing freight bound for points in New York. Assuming this to be so, the plaintiff was at the time engaged in interstate commerce, and the defendant was also engaged in interstate commerce.

In other places the complaint alleges that both the plaintiff and defendant were at the time engaged in interstate commerce. In stating the acts of negligence complained of, the complaint contains a statement that there was in force and effect in the commonwealth of Massachusetts a statute known as the Workmen's Compensation Act, and the complaint sets out certain provisions of section 1 of that act. This is not set forth as a separate or distinct cause of action, and on the trial the plaintiff would not be allowed to recover under the provisions of that statute of the commonwealth of Massachusetts. This court is of the opinion that no attempt is made in the complaint to set forth a cause of action under the statutes of the state of Massachusetts. The cause of action, if any, is founded on common-law negligence, of which the defendant was guilty while engaged in transporting freight in interstate commerce and moving cars in interstate commerce, and while the plaintiff was engaged in operating an engine moving the said cars, and who was therefore engaged in interstate commerce. forth.

In Lombardo v. Boston & Maine Railroad, 223 F. 427 this court hands down its decision herewith that a case or cause of action arising under the federal Employers' Liability Act...