Roush v. Baltimore & O. R. Co.

• Decision Date: 19 May 1917
• Docket Number: 9472.
• Parties: ROUSH v. BALTIMORE & O.R. CO.
• Court: U.S. District Court — Northern District of Ohio

243 F. 712

ROUSH v. BALTIMORE & O.R. CO.

No. 9472.

United States District Court, N.D. Ohio, Eastern Division.

May 19, 1917

Payer Winch, Rogers & Minshall, of Cleveland, Ohio, for plaintiff.

Tolles Hogsett, Ginn & Morley, of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

This action was removed to this court from the court of common pleas, Cuyahoga county, on the ground of diversity of citizenship, and plaintiff now moves to remand on the ground that the cause of action stated in the petition is one arising under the federal Employers' Liability Act relating to injuries sustained by employes of interstate carriers while engaged in interstate commerce, and therefore not removable under section 6 of the amendment to said act approved April 5, 1910 (36 Stat. 291, c. 143, Sec. 1 (Comp St. 1916, Sec. 8662)).

From the petition it appears that the defendant was operating a system of steam railroads running through Cuyahoga county, Summit county, and Wayne county, Ohio, and other counties and states of the United States; that one of its lines runs from the city of Pittsburg to the city of Chicago, through Warwick, in Summit and Wayne counties; that in connection with the line of railroad defendant owns and operates engines, cars, roundhouses, workshops and water tanks, and particularly a certain water tank, reservoir, and pumphouse near said village of Warwick, on said line of railroad; that said water tank, reservoir, and pumphouse was for the purpose of supplying water to its locomotives, operating on said line, and other purposes pertaining to the business of a common carrier engaged in interstate commerce; and that the defendant was at all times mentioned engaged in the business of interstate commerce, and plaintiff was likewise employed and engaged at the time he sustained the injuries described and complained of. The petition gives a description of this pumphouse, showing its use in furnishing and supplying water for locomotives, and then states that it became necessary for the plaintiff, in the performance of his duties, to ascertain the depth of water in a cistern (which was a part of the pumping station), and that, on removing the hatch of said cistern, and while attempting to make an inspection of the state of the water therein, he was injured by an explosion of gas, which had accumulated in the cistern.

The foregoing are all the allegations tending to show that the defendant was engaged in interstate business, and that plaintiff was, at the time he received his injuries, aiding or participating in an act of interstate commerce. If, upon these facts, the plaintiff was engaged or participating in the interstate business of the defendant, the motion to remand should be granted. If, on the other hand, it was not properly interstate business, then the removal on the ground of diversity of citizenship was proper, and the motion should be denied.

The solution of this inquiry depends on whether or not an employe engaged in operating a pumping station, which furnishes water to be used indiscriminately and contemporaneously for interstate and intrastate business, is within the federal Employers' Liability Act. The test is whether the plaintiff, at the time of the accident, was engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof. The several state courts of last resort, and the federal courts inferior to the United States Supreme Court, have differed widely in similar cases, and authority may be found supporting either side of the question. In view of this conflict, I rest my decision upon what I believe to be the rule practically settled by the decisions of the Supreme Court of the United States. Those most nearly in point are the following: Walsh v. New York, etc., R.R. Co., 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44; Pedersen v. Delaware, etc., R.R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; St. Louis, etc., Ry. Co. v. Seale, 229 U.S. 156, 33 Sup.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156; Illinois Central R.R. Co. v. Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Delaware, etc., R.R. Co. v. Yurkonis, 238 U.S. 439, 35 Sup.Ct. 902, 59 L.Ed. 1397; Shanks v. Delaware, etc., R.R. Co., 239 U.S. 556, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797; Chicago, etc., R.R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941; Minneapolis, etc., R.R. Co. v. Winters, 242 U.S. 353, 37 Sup.Ct. 170, 61 L.Ed. 358.

In my opinion, the Pedersen Case is controlling. In it the injured employe was an iron worker employed by an interstate employer in the reconstruction, or alteration and repair, of railway bridges. He was engaged in carrying from a tool car to one of these bridges some bolts or rivets, which were to be used that night or early the next morning in repairing a bridge. The repairs consisted in taking out an existing girder and inserting a new one. This bridge was being regularly used in both interstate and intrastate commerce. It was held that he was within the terms of the act; in other words, that his work was so closely related to interstate transportation as to be practically a part thereof. Mr. Justice Van Devanter, delivering the opinion, says:

'Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference, so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct 'any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce. But, independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined, regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in

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