Stafford v. Norfolk & W. Ry. Co.

• Decision Date: 10 February 1913
• Citation: 202 F. 605
• Parties: STAFFORD v. NORFOLK & W. RY. CO.
• Court: U.S. District Court — Eastern District of Kentucky

202 F. 605

STAFFORD v. NORFOLK & W. RY. CO.

United States District Court, E.D. Kentucky.

February 10, 1913

Willis Staton, George Pinson, Jr., and Roscoe Vanover, all of Pikeville, Ky., for plaintiff.

Holt Duncan & Holt, of Huntington, W. Va., for defendant.

COCHRAN District Judge.

This case is before me on motion to remand. It is a suit to recover damages for the death of plaintiff's intestate alleged to have been wrongfully caused by the defendant. He was run down and killed by one of its trains whilst he was employed by it in repairing its railway tracks near Rose Siding, in Mingo county, W.Va. The suit was brought in the circuit court of Pike county, in this state, and has been duly removed from thence here.

The plaintiff's petition alleged that the defendant is a common carrier engaged in interstate commerce, and that the repairing of its track by the decedent, in which he was engaged at the time of his death, 'was necessary and an essential part of carrying on the interstate commerce herein set out, and that it was entirely impossible for defendant to have carried on said interstate commerce as herein set out without the aid of track repairers, and that the work of repairing said tracks was a necessary and essential part of carrying on the interstate commerce between said states by the defendant herein. ' It did not allege whether the train that killed decedent was an interstate or intrastate train. It set forth in terms the West Virginia wrongful death statute, and prayed recovery of $3,000 damages. By an amended petition, filed before the petition for removal, the amount of recovery sought was raised to $10,000, and it was alleged as follows, to wit:

'That plaintiff bases this action on what is known as the Employer's Liability Act, being an act of the Congress of the United States of America the title to said act being 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)), with an amendment thereto approved April 5, 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 (U.S. Comp. St. Supp. 1911, p. 1324)).'

The removability of the case depends upon the question whether it is one arising under that act. If it is not it was removable, for the petition for removal alleges diversity of citizenship between the parties; the plaintiff being alleged to be a citizen of the state of Kentucky and the defendant a West Virginia corporation. If it is the amendment prohibits its removal.

Counsel treat the question as to whether the case is one so arising as depending solely upon the question whether, on the facts alleged in the petition, the plaintiff is entitled to recover under the Employer's Liability Act. To recover under that act it is essential that the employe should at the time of his injury be employed by the carrier in interstate commerce. It is contended on behalf of the plaintiff that according to the facts alleged in the petition the decedent was so engaged when run down by defendant's train. Such being the claim, the ultimate fact that he was so employed should have been distinctly alleged. This contention is disputed by the defendant. There is thus raised the question whether a track repairer of a common carrier engaged in both interstate and intrastate commerce is employed by such carrier in interstate commerce within the meaning of the act.

In support of the position that he is, the plaintiff's counsel cite Thornton on Federal Employer's Liability and Safety Appliance Acts, pp. 56, 58, 59, 60; Interstate Com. Com. v. I.C.R.R. Co., 215 U.S. 452, 30 Sup.Ct. 155 54 L.Ed. 280; Employer's Liability Cases, 207 U.S. 495, 28 Sup.Ct. 141, 52 L.Ed. 297; Zikos v. Oregon R. Co. (C.C.) 179 F. 893; Colasurdo v....