Co., Inc., solely on the basis of the Federal Employers' Liability Act, accordingly its motion to dismiss is granted.
As to the remaining defendants, the allegations are sufficient, for the purposes of these motions, to constitute such defendants 'common carriers by railroad.' The fact that the distance across the bridge may be short would not prevent The Delaware River Joint Commission from being such a common carrier.
However, for jurisdiction to attach, more is required. The mere fact that such defendants are common carriers is not enough. The plaintiff must have been injured while employed by such defendant or defendants. Under a proper state of facts an employee of an agent of a 'carrier' may be an employee of the carrier and covered by the provisions of the Federal Employers' Liability Act.
Apropos here is the court's statement in Cimorelli v. New York Cent. R. Co., supra, as follows (148 F.2d 577): 'The words used in this section are to be construed in the natural sense and describe the conventional relationship of employer and employee. Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 40 S. Ct. 358, 64 L. Ed. 670. And so the first question here is whether appellee, for whom the work was being done, had given up its proprietorship of the particular business to the Duffy Construction Company and had thus divested itself of the right of control, to the extent that it had no longer a legal right to terminate the work or to direct it. If appellee had done nothing to limit its rights with regard to the business which was being done for its benefit, but had retained its proprietorship of it, each person working for the Duffy Construction Company was legally subject to appellee's control while so engaged and was the employee of appellee. Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S. Ct. 175, 33 L. Ed. 440; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480.'
The only allegation of employer-employee relationship in the complaint now before us is that Kelly was employed by the painting contractor, J. I. Hass Co., Inc. There is no allegation of any relationship between J. I. Hass Co., Inc., and either of the two defendants alleged to be 'common carriers' except that they were all 'jointly' engaged. There is no allegation that there was any employer-employee relationship between plaintiff and either of the two 'common carrier' defendants. No suit can be entertained against the 'common carrier' if the injury is sustained by an employee of an independent contractor.
We have therefore a failure to state a claim within the jurisdiction of this Court under the provisions of the Federal Employers' Liability Act. Plaintiff has not sought to amend his complaint.
The motions to dismiss filed on behalf of The Delaware River Joint Commission, a corporation, and Philadelphia Transportation Company, a corporation, must therefore be granted. The complaint is dismissed as to all three of the defendants.