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OWENS v. NEW YORK CENTRAL RAILROAD COMPANY

May 19, 1967

CHARLES M. OWENS, PLAINTIFF,
v.
THE NEW YORK CENTRAL RAILROAD COMPANY, A CORPORATION, TRAILER TRAIN CORPORATION, A CORPORATION, GENERAL AMERICAN TRANSPORTATION CORPORATION, A CORPORATION, AND MOORE-MCCORMICK LINES, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Juergens, Chief Judge.

MEMORANDUM AND ORDER

Plaintiff Charles M. Owens instituted this suit in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, against defendants New York Central Railroad Company, Trailer Train Corporation, General American Transportation Corporation and Moore-McCormick Lines, Inc.

Generally stated, the complaint alleges that plaintiff on the 23rd day of April, 1966, was employed as a truck driver for the New York Central Transportation Company; that in such capacity from time to time he worked as a member of a two-man crew and on the date specified was directed by his employer to work on company property in East St. Louis, Illinois, for the purpose of loading semi-trailers on railroad cars by use of what is commonly referred to as the piggy-back ramp; that a piggy-back railroad car owned by defendant Trailer Train Corporation (the car having been placed at the piggy-back ramp by defendant The New York Central Railroad Company) was in a dangerous and defective condition; that defendants owed a duty to the plaintiff and his fellow employees to provide facilities which were in a reasonably safe condition to use for the purpose intended, namely, to drive a tractor and trailer on top of the railroad cars for the purpose of loading semi-trailers for transportation; that in order for plaintiff and the other member of his team to load the semi-trailer, owned by Moore-McCormick Lines, Inc., on the railroad car, it was necessary for the semi-trailer to be attached to a tractor and backed up on the piggy-back ramp and onto and across four other railroad cars to the railroad car upon which the trailer was to be loaded; that the railroad car upon which the trailer was to be loaded was the fifth car from the ramp and that it was necessary, after the trailer had been backed onto the railroad car. to place his body beneath the trailer and attach a steel connecting bar to the rear axle of the tractor and attach a Tie-Down Hitch, manufactured by defendant General American Transportation Corporation, for the purpose of allowing the tractor to be pulled forward in order to pull the hitch from a horizontal to a vertical position for the purpose of holding the front end of the semi-trailer; that after the tractor had been pulled forward and raised by the hitch to a vertical position, it was necessary for plaintiff to again place his body beneath the front end of the semi-trailer to remove the connecting bar from the hitch; that while the plaintiff was in the position underneath the front of the semi-trailer, the hitch which was in an unsafe and dangerous condition collapsed causing the front end of the semi-trailer to strike plaintiff, causing injuries to plaintiff.

Counts I, III, V, VI and VII are bottomed on general negligence and breach of warranty. Counts II and IV allege that at the time and place aforesaid there was in effect an act of the Congress of the United States, namely, Chapter 45, U.S.C.A., Section 2, which reads as follows:

  "It shall be unlawful for any common carrier engaged
  in interstate commerce by railroad to haul or permit
  to be hauled or used on its line any car used in
  moving interstate traffic not equipped with couplers
  coupling automatically by impact, and which can be
  uncoupled without the necessity of men going beneath
  the ends of the cars."

that notwithstanding the absolute duty of the defendants, they failed to provide a railroad car which was safe to operate in the service to which it was intended and to provide a railroad car with an automatic coupler which would couple on impact, in violation of Section 2 aforesaid; that as a direct and proximate result of the negligence of the defendants, plaintiff sustained injuries for which he prays damages.

Defendant The New York Central Railroad Company removed the cause to this court, alleging that the action was founded on a claim or right arising under the laws of the United States in that plaintiff's charge in Count II of his complaint against the petitioner is based upon an act of Congress of the United States, namely, the Safety Appliances and Equipment on Railroad Engines and Cars and Protection of Employees and Travelers Act, Title 45 U.S.C.A., Sections 1 to 16, inclusive (hereinafter referred to as the Safety Appliance Act), and particularly Section 2.

Plaintiff moves to remand, alleging that the cause of action set forth in Count II is not a claim or right arising under the Constitution or laws of the United States within the meaning of the removal statute and therefore is not removable.

It has long been firmly established that whether a case is one involving a "Federal question" as a case arising under the Constitution, laws, or treaties of the United States is to be determined from plaintiff's statement of his own cause of action in his original pleading. The rule is fundamental that the asserted federal question must appear on the face of the complaint, jurisdiction depending on the allegations therein made showing that plaintiff's statement of his own cause of action is based on the Constitution, laws, or treaties of the United States. And the rule is also well settled, by the more modern decisions, that to bring a case within the jurisdiction statutes, the right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff's cause of action. 12 A.L.R.2d 41-45.

The fact that a federal law may or will be drawn into consideration during the course of the litigation is not alone sufficient to support jurisdiction in a federal court. Cities Service Gas Company v. Skelly Oil Company, 165 F. Supp. 31, 34 (U.S.D.C.D.Del., 1958).

A question of federal law is often "lurking in the background of every case;" however, in order to invoke the jurisdiction of a federal court, there must be "a substantial claim founded `directly' upon federal law." Johnston v. Byrd, 354 F.2d 982, 984 (5th Cir., 1965).

A question somewhat akin to that here presented was before the United States District Court for the Eastern District of Tennessee, Northern Division, in Dennis v. Southeastern Aviation, Inc., 176 F. Supp. 542. Dennis involved an action for the wrongful death of an airline passenger. The case was removed from the state to the federal court on the basis of an allegation that the defendant had violated federal rules and regulations promulgated under the Federal Civil Aeronautics Act and therefore a right arising under the federal laws was present. Upon motion the cause was remanded to the state court. In determining that the case was improperly removed, the Court stated:

    "Bearing in mind that the allegation as to
  violation of the federal regulation simply tendered
  another issue of negligence, and involved no question
  of the validity or interpretation of the regulation,
  and bearing in mind further that all doubts should be
  resolved in favor of remand, * * *, the Court is of
  the opinion that remand should be granted."

In Boncek v. Pennsylvania R. Co., 105 F. Supp. 700 (D.C.N.J.), one of the charges of negligence was a failure to comply with federal regulations. The Court found that the action for negligence was premised on the law of the state and that the allegation of negligence under the federal law simply tendered an issue of fact whether the train was operated without brakes being in an operative condition. The Court stated that no right was alleged which would be supported if the ...


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