Tralich v. Chicago, M. & St. P. Ry. Co.
Decision Date | 04 November 1914 |
Docket Number | 2856. |
Court | U.S. District Court — Western District of Washington |
Parties | TRALICH v. CHICAGO, M. & ST. P. RY. CO. |
Ryan & Desmond, of Seattle, Wash., for plaintiff.
George W. Korte, of Seattle, Wash., for defendant.
This action was commenced in the state court and removed to this court on petition of the defendant.
Motion to remand has been made on the part of the plaintiff. The complaint (paragraph 2) alleges:
'That defendant in the carrying on of interstate commerce employed the plaintiff as a common laborer to work upon a construction gang in the repair and maintenance of the tracks and roadbed of the said defendant company, which were employed for the transportation and movement of defendant's trains in the conduct of its business.'
And in paragraph 3 that:
-- injuring the plaintiff. The plaintiff further, in paragraph 4, recites:
It is contended on the part of the plaintiff that this action is prosecuted under Employers' Liability Act April 22, 1908, 35 Stat. 65, to recover for personal injuries sustained by plaintiff, and that, under the provisions of Act March 3, 1911, 36 Stat. 1094, the action, having been brought in a state court of competent jurisdiction, cannot be removed to the United States court.
The defendant contends that the complaint states a cause of action at common law, and not one embraced within the federal Employers' Liability Act; that the language employed in the complaint shows that plaintiff was a common laborer on a 'construction gang,' and was working on a steam shovel used in 'the removal of earth and rubbish alongside the roadbed,' and was not at the time performing a service in interstate commerce; that the test to determine whether an injury to an employe is within the protection of the act is its effect on the course and current of interstate commerce. Was the employe's relation to traffic so close and direct that his injury tended to stop or delay the movement of a train engaged in interstate commerce?
A reading of the complaint, I think, will require an affirmative answer. The language, 'while * * * employed * * * operating a steam shovel * * * in the removal of...
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