Thomas v. Boston & M.R.R.

• Decision Date: 15 January 1915
• Docket Number: 1099.
• Citation: 219 F. 180
• Parties: THOMAS v. BOSTON & M.R.R.
• Court: U.S. Court of Appeals — First Circuit

219 F. 180

THOMAS v. BOSTON & M.R.R.

No. 1099.

United States Court of Appeals, First Circuit.

January 15, 1915

Louis E. Wyman, of Manchester, N. H. (David A. Taggart and Taggart Burroughs, Wyman & McLane, all of Manchester, N.H., on the brief), for plaintiff in error.

Oliver E. Branch, of Manchester, N.H. (Branch & Branch, of Manchester, N.H., on the brief), for defendant in error.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE Circuit Judge.

The error assigned by the plaintiff is the sustaining of a demurrer to his declaration, in which he has described both himself and the defendant as citizens of New Hampshire, and has expressly based his suit upon the federal Employers' Liability Act.

According to his declaration, the plaintiff was in the defendant's continuous employ as a carpenter, and was injured by the falling of a timber, while engaged in work upon a roundhouse owned and operated by the defendant. The injury is charged to have been in consequence of negligence on the part of the defendant, its agents, or servants.

The question raised by the demurrer is whether or not the plaintiff's allegations sufficiently show him to have been employed in interstate commerce within the meaning of the act, at the time of his injury. The declaration sets forth that, at and before that time, the roundhouse referred to constituted a part of the appliances or equipment used by the defendant while engaging in such commerce, 'for the purpose of housing and storing * * * the engines used by it in such interstate commerce.'

The District Court understood the declaration as follows:

'According to the declaration, the plaintiff was engaged in tearing down a roundhouse, or that part of it, which had been rendered useless by the fire, and was injured, not by an instrumentality being actively used in interstate commerce but by a falling timber.

'The active function of the roundhouse as an instrumentality in interstate business has ceased to exist, and the employment, therefore, was in connection with the removal of a useless structure, to the end that a new one might be created for railroad purposes, and very likely for uses in connection with interstate commerce.'

The plaintiff denies that his allegations warrant the statement that the roundhouse had ceased to exist as an instrumentality in interstate business, or the statement that his employment was in removing a useless structure to...