Ullrich v. New York, N.H. & H.R. Co.

• Decision Date: 17 February 1912
• Citation: 193 F. 768
• Parties: ULLRICH v. NEW YORK, N.H. & H.R. CO.
• Court: U.S. District Court — Southern District of New York

193 F. 768

ULLRICH v. NEW YORK, N.H. & H.R. CO.

United States District Court, S.D. New York.

February 17, 1912

The above-entitled action was commenced on the 5th day of January, 1912, by a summons and complaint in the Supreme Court of the state of New York for the county of Westchester. On petition of the defendant it was removed to this court on January 25, 1912. The defendant thereafter filed an answer on the 25th day of January, 1912. The plaintiff now moves for remand of the case, on the ground that under section 6 of the United States employer's liability act, passed April 5 1910 (36 Stat. 291, c. 143), the case should not have been removed. That section is as follows:

'Under this act an action may be brought in a Circuit Court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.' The complaint or declaration of the plaintiff is as follows:

'The plaintiff, complaining of the defendant, alleges:

'(1) That at all the times hereinafter mentioned the defendant was, and it now is, a foreign Connecticut state corporation, and as such operates, owns, and maintains a railroad in New York and Westchester counties, and in the yards known as the 'Westchester Yards,' and on October 20, 1911, plaintiff's intestate, John F Ullrich, was injured while in defendant's employ, while said defendant and said intestate were then and there engaged in interstate commerce between the different states of the United States, and intestate was run over by defendant's train, which was then and there carrying and transporting interstate commerce, and the employes working in connection therewith were engaged in interstate commerce; and thereafter and on or about December 29, 1911, this plaintiff was appointed administratrix of the goods, chattels, and credits of the said John F. Ullrich, deceased, by the surrogate of the county of Westchester, New York, in which said county the said deceased resided at the time of his death; and thereafter and on or about January 2, 1912, plaintiff caused to be served upon the defendant a notice, setting forth the time, place, and cause of plaintiff's intestate said injury and death while in defendant's employ on October 20, 1911.

'(2) That on October 20, 1911, while the plaintiff's intestate was in defendant's employ as a brakeman in defendant's Westchester Yards, New York, he was struck and run over by defendant's freight train and sustained injuries which caused his death, and this was caused by the negligent manner in which the defendant's employes having the then control of the engines, cars, and signals at said point conducted themselves in the management of said cars, engines, and signals, and was also caused by the negligence of the defendant's officers, servants, and employes, and by the defendant's defects in defendant's ways, works, machinery, appliances, plant, cars, engines, tracks, roadbed, and signals at said place, and by the defendant's neglect in failing to formulate, promulgate, and enforce proper rules and regulations for the safety of the intestate and his coemployes, in that defendant conducted its work by unsafe and dangerous methods, and did have an improper signal system, and conducted its work by insufficient signals, material, and men, in that defendant, charged with superintendence, control, and command over the plaintiff's intestate and his coemployes, negligently and carelessly conducted itself in and in connection with said acts, control, and command, as a result of all of which, plaintiff's intestate was struck and run over by said train, and sustained injuries which caused his death, all being caused without any negligence on the part of the plaintiff's intestate in any wise contributing thereto.

'(3) That said deceased left him surviving, as his heirs at law and next of kin, this plaintiff, his widow, Frederick, John, William, and Ferdinand, his sons, all of whom have been damaged by his death in the sum of fifty thousand dollars ($50,000).

'Wherefore plaintiff demands judgment against the defendant for the sum of fifty thousand dollars ($50,000), and the costs and disbursements of this action.'

Thomas J. O'Neill, for plaintiff.

Nath. S. Corwin, for defendant.

HAND, District Judge (after stating the facts as above).

The first point is whether the act of April 5, 1910, meant to prohibit removal, in spite of the fact that the defendant was a citizen of a different state from the plaintiff. I think it did, though the matter is not perfectly clear. The language of the act is:

'No case arising under this act and brought in any state court of competent jurisdiction shall be removed.' One would have rather expected the words to be substantially:

'The defendant shall not be entitled to remove because the plaintiff relies upon any rights created hereby'

-- if Congress meant removal to be still possible in such cases when there was diversity of citizenship. That would have prevented the removal merely by virtue of the fact that the suit arose under a law of the United States--Judiciary Code (Act March 3, 1911, c. 231) Sec. 28, 36 Stat. 1094-- but would still have allowed a nonresident defendant to remove. The words used prohibit absolutely any...