Taylor v. Southern Ry. Co.

• Decision Date: 23 April 1910
• Citation: 178 F. 380
• Parties: TAYLOR v. SOUTHERN RY. CO.
• Court: U.S. District Court — Northern District of Georgia

178 F. 380

TAYLOR v. SOUTHERN RY. CO.

United States Circuit Court, N.D. Georgia.

April 23, 1910

Lawton Nalley, for petitioner.

F. A Cantrell and Maddox, McCamy & Shumate, for defendant.

NEWMAN District Judge.

This is a motion to remand a case removed from the superior court of Gordon county to the United States Circuit Court for the Northern District of Georgia.

The declaration in the case contains two counts. In the first count the railway company and the individual, Avery, are sued jointly under the employer's liability act of Congress (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St Supp. 1909, p. 1171)).

The removal is on the ground that there is a separable controversy, inasmuch as Avery, the individual defendant could not be sued under this act of Congress.

It is perfectly manifest that Avery is not liable under this act as the act applies only, by its terms, to 'common carriers by railroad while engaged in commerce between any of the several states,' etc.

The plaintiff was a member of a bridge gang, engaged in repairing bridges. The allegation in the declaration is this:

'On August 17, 1908, plaintiff was in the employ of the Southern Railway Company as one of a bridge gang. The foreman of said bridge gang was the defendant S. L. Avery.

'About one week prior to said date, said bridge gang had been doing repair work on the Southern Railway Company's bridge over the Oostanaula river, in said county, during which time petitioner was absent.

'Said bridge was on the through line of the defendant from Atlanta, Georgia, to Chattanooga, Tennessee, and its use was necessary for the interstate commerce of the Southern Railway Company. Petitioner in his bridge work worked on the lines of the defendant Southern Railway Company, both in Georgia and in other states.

'The Southern Railway Company used said bridge at the time plaintiff was injured in carrying on its interstate commerce.

'For the reasons set forth in the preceding paragraphs, petitioner was an employe of the Southern Railway Company, employed by it in interstate commerce.'

The complainant claims that he was injured by reason of a plank being loose, which formed a part of the scaffold used in doing repair work on the bridge.

I do not know how far this employer's liability act will be extended as to the class of employes held to be engaged in interstate commerce; but it seems reasonably clear to me that a man engaged in repairing bridges and doing bridge work generally, even though he worked in different states for the railroad company, is not engaged in interstate commerce within the meaning of this act.

The only case I have seen of a person employed in the same capacity as the plaintiff in this case is Snead v. Central of Georgia Railway Company (C.C.) 151 F. 608, decided by Judge Speer of the Southern District of Georgia. The demurrer to the declaration in that case was overruled, which, apparently, sustained the right of the plaintiff to recover. That case, however, was under the first employer's liability act, approved June 11, 1906 (34 Stat. 232, c. 3073 U.S. Comp. St. Supp. 1909, p. 1148)) the language of which was essentially different from that of the present act, passed and approved in 1908. The language of the first act was that:

'Every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another, or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employees,' etc.

The present act provides:

'That every common carrier by railroad, while engaged in commerce between any of the several states, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,' etc. (Act April 22, 1908, c. 149, Sec. 1, 35 Stat. 65 (U.S. Comp. St. Supp. 1909, p. 1172))

-- making a very material difference in this: That under the first act common carriers engaged in interstate commerce were made liable to any of their employes, while by the last act they are liable in damages to persons employed by such...