Zientek v. Reading Co., Civ. A. No. 9662.

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: WELSH
• Citation: Zientek v. Reading Co., 93 F.Supp. 875 (E.D. Pa. 1950)
• Decision Date: 28 September 1950
• Docket Number: Civ. A. No. 9662.
• Parties: ZIENTEK v. READING CO.

93 F. Supp. 875

ZIENTEK v. READING CO.

Civ. A. No. 9662.

United States District Court E. D. Pennsylvania.

September 28, 1950.

B. Nathaniel Richter (of Richter, Lord & Farage), Philadelphia, Pa., for plaintiff.

John R. McConnell, Philadelphia, Pa., for defendant.

WELSH, District Judge.

The argument advanced by the defendant is that since plaintiff was injured aboard a car float on a navigable river of the United States the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C.A. § 901 et seq., is applicable, and since the remedies provided for under that Act are sole and exclusive the action insofar as it relates to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., must be dismissed.

1. The general scheme of the Longshoremen's and Harbor Workers' Compensation Act was to provide compensation for workers engaged in maritime work who are injured while on navigable waters. A careful review of the legislation reveals that the protection of persons working on or about vessels and commonly known as longshoremen and stevedores was intended and accordingly the applicability of the Act was limited to those persons. Protection for those persons was deemed necessary because prior to the passage of the Act no remedy was provided for in the case of injuries to such persons, since Workmen's Compensation Statutes did not apply to them. As a matter of fact, Congress in furtherance of its overall intent expressly provided for the inapplicability of the Act where recovery for the worker's disability or death can be had through workmen's compensation proceedings under a valid State law, 33 U.S.C.A. § 903. In addition, Congress further limited the scope of the Act by excepting from its provisions masters and members of a crew, as those persons had the protection of statutes already in force, 33 U.S.C.A. § 903.

2. The facts in the record clearly establish that the plaintiff in the instant case is not a longshoreman or a stevedore and that he is a railroad worker in the occupational sense. He was employed by the defendant railroad as a brakeman and his duties consisted of coupling and uncoupling cars, setting and releasing brakes, checking the equipment and passing signals. He performed 90 per cent of his work on land and the remaining 10 per cent aboard a car float in navigable waters. However, whether he worked on land or on navigable waters his work was always that of a "railroader" (as described above) and never that of a longshoreman or stevedore.

3. It is the opinion of the Court that plaintiff as a railroad employee is entitled to the benefits of the Federal Employers' Liability Act. The argument of the defendant is that since plaintiff's injuries were sustained on navigable waters of the United States he brought himself without the scope of that Act and within the scope of the Longshoremen's and Harbor Workers' Compensation Act. In support of the argument the defendant cites Nogueira v. New York, New Haven and Hartford Railroad Company, 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754, and other cases following the rule laid down in that case. Buren v. Southern Pacific Company, 9 Cir., 50 F.2d 407; Gussie v. Pennsylvania Railroad Company, 1 N.J.Super. 293, 64 A.2d 244; Job v. Erie Railroad Company, D.C., 79 F.Supp. 698. In the Nogueira case, supra, the Supreme Court of the United States held a freight handler employed by a railroad company injured aboard a car float in navigable waters was subject to the Longshoremen's and Harbor Workers' Compensation Act and not the Federal Employers' Liability Act.

4. The effect of the Nogueira case, we feel, was nullified by the 1939 Amendment to the Federal Employers' Liability Act and the decision in Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246. See Central Engineering Company v. Bassett, D.C., 42 F.Supp. 750; Moores' Case, 323 Mass. 462, 80 N.E.2d 478. In Davis v. Department of Labor, the Court had before it the question of whether the State Workmen's Compensation Act or the Longshoremen's and Harbor Workers' Compensation Act was applicable to a structural steel worker injured aboard a barge in navigable waters. It decided that upon the facts and circumstances of the case the State Workmen's Compensation Act was applicable. In enunciating the rule of the case, the Court, 317 U.S. at page 256, 63 S.Ct. at page 229, 87 L. Ed. 246, said: "There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements." It will be observed that the Court in Davis v. Department of Labor, supra, decided a case involving a dispute between State and Federal jurisdiction. In the present case we are confronted with a dispute between two Federal statutes. However, we feel the distinction is not material and accordingly follow the rule laid down in said case. Upon the facts and circumstances of the instant case we conclude that the plaintiff is subject to the provisions of the Federal Employers' Liability Act. The plaintiff, it has already been seen, was a "railroader" in the operational sense. He performed only railroad work and he performed said railroad work 90 per cent of the time on land and 10 per cent of the time on a car float in navigable waters. As a "railroader" plaintiff falls within the scope of the Federal Employers' Liability Act and is entitled to the benefits of said Act. Suffice it to say, without enumerating them, plaintiff's benefits under said Act are substantial, and to deprive plaintiff of the substantial rights secured to him under said Act merely because at the time of his injuries he happened to be aboard a car float in navigable waters would, we think, be recognizing the shadow and ignoring the substance of remedial social legislation.

5. In 1908 Congress passed the Federal Employers' Liability Act. Immediately Courts experienced difficulty in determining whether or not the provisions of the Act applied to a given railroad employee. If the facts and circumstances of a...