Van Brimmer v. Texas & P. Ry. Co.

• Decision Date: 02 October 1911
• Citation: 190 F. 394
• Parties: VAN BRIMMER v. TEXAS & P. RY. CO.
• Court: U.S. District Court — Eastern District of Texas

190 F. 394

VAN BRIMMER v. TEXAS & P. RY. CO.

United States Circuit Court, E.D. Texas, Jefferson Division.

October 2, 1911

S. P Jones, for plaintiff.

F. H Prendergast, for defendant.

RUSSELL District Judge.

This cause is before me on a motion to remand to the state court. The plaintiff sues for damages on account of personal injuries alleged to have been received by him while in the service of the defendant as an employe, in December, 1910. He filed suit against the defendant in the district court of Harrison county Tex., in February, 1911.

The defendant in due time filed its petition and bond for removal upon the ground that it had the right of removal because it is a corporation chartered by an act of Congress. Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed 319.

The state court accepted the bond for removal and ordered the suit removed to the Circuit Court of the United States for the Eastern District of Texas. The plaintiff has filed a motion to remand the cause, alleging that he was engaged in interstate commerce when he was injured, and that he has brought his suit for those injuries under the act of Congress of April 22, 1908, and the amendment of April 5, 1910, known as the 'Employer's Liability Act.'

It is not disputed that the defendant has the right to remove the case to the United States court unless that right of removal was taken away by the sixth section of the act of April 5, 1910.

It is agreed that the injuries of which the plaintiff complains were received under the following circumstances: Plaintiff was a brakeman in the employ of the defendant company. On the occasion of his injuries he was engaged in the discharge of his duties as such brakeman on a freight train which was going from Big Springs, Tex., to El Paso, Tex. The train contained many cars, which were filled with merchandise from other states and were being so used to transport interstate shipments of freight. In the train was also a car filled with merchandise loaded at Dallas, Tex., and destined for Etholine, Tex.; the shipment being wholly intrastate in its character-- that is, the shipment in the case of this car began and was to end within the state of Texas. When the train reached Etholine, the employes of the defendant, including the plaintiff, undertook to 'set out' the said car destined for that place. In performing this work the engine and several cars, including the one destined for Etholine, were cut loose from the train, which was left standing on the main line, and the plaintiff and his coemployes proceeded to put the Etholine car on a side track. The conductor of the train ordered the train crew to make a 'flying switch' and in this way send the car on the side track at Etholine. The part of this service which the plaintiff was to perform was to ride on the car, which was to be side-tracked at Etholine, and while the train was in rapid motion to cut loose that car from the others. Immediately after this car was cut loose by the plaintiff, the engine and remaining cars were to be suddenly decreased in speed so as to produce the effect of sending the Etholine car upon one track at rapid speed, and then before the engine and balance of the cars could reach the switch it would be thrown by the switchman so as to send the engine and other cars upon another track. In attempting to perform the work in this manner, the engineer suddenly stopped his engine before the Etholine car was cut loose, and the plaintiff was thereby jerked off of that car, thrown to the ground, and injured.

The negligence relied upon by the plaintiff was the act of the conductor in ordering the 'flying switch' and of the engineer in stopping the engine too suddenly.

The decision of the motion to remand rests upon two propositions: Was the plaintiff at the time of the injury engaged in an act of furtherance of interstate commerce; and, second, does the act of April 5, 1910, deprive every defendant of the right to remove a suit which has been filed against him in the state court where the suit by the plaintiff is based upon the employer's liability act. I will take up these two propositions in the order in which I have stated them.

The original employer's liability act was the Act of June 11, 1906, c. 3073, 34 Stat. 232 (U.S. Comp. St. Supp. 1909, p. 1148). That act by its terms embraced 'every common carrier engaged in traffic or commerce in the District of Columbia, or in any territory of the United States or between the several states,' etc. The validity of the act was called in question upon the ground, among others, that it attempted to extend the regulating power of Congress to every one engaged in interstate commerce, even though a portion of his business might relate to intrastate commerce exclusively. The question reached the Supreme Court, and the act was held by that court to be unconstitutional. Employer's Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297. The present Chief Justice , and, while other objections to the law are discussed, it was held that the act was addressed to all common carriers engaged in interstate commerce without limitation or restriction as to the nature of the business at the time of the injury, and so, necessarily, includes subjects wholly outside of the power of Congress under the commerce clause of the Constitution. The court said:

'From the first section it is certain that the act extends to every individual or corporation who may engage in interstate commerce as a common carrier Its all-embracing words leave no room for any other conclusion. It may include, for example, steam railroads, telegraph lines, telephone lines, the express business, vessels of every kind, whether steam or sail, ferries, bridges, wagon lines, carriages, trolley lines, etc. Now, the rule which the statute establishes for the purpose of determining whether all the subjects to which it relates are to be controlled by its provisions is that any one who conducts such business be a '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,' etc. That is, the subjects stated all come within the statute when the individual or corporation is a common carrier who engages in trade or commerce between the states, etc. From this it follows that the statute deals with all the concerns of the individuals or corporations to which it relates if they engage as common carriers in trade or commerce between the states, etc., and does not confine itself to the interstate commerce business which may be done by such persons. Stated in another form, the statute is addressed to the individuals or corporations who are engaged in interstate commerce, and is not confined solely to regulating the interstate commerce business which persons may do; that is, it regulates the persons because they engage in

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