over a public street must be presumed to be acting lawfully and must therefore be regarded as doing so as a common carrier.
The other cases cited by plaintiff afford him no comfort, they seem to support rather the position of the defendant and the conclusions which I have reached. For example, Crane Railroad Co. v. Central Railroad Co. of New Jersey, 248 Pa. 333, 93 A. 1076, was a case in which the Supreme Court of Pennsylvania, in arriving at the conclusion that Crane Railroad Company was a common carrier and not a plant facility, pointed out that it was chartered under the railroad laws of Pennsylvania, that it was controlled and operated by a management separate from the Crane Iron Works whose rail facilities it had taken over, that it exercised the right of eminent domain, that its tracks connected with tracks of other railroads, and in the exercise of its charter rights transported for hire freight not only from the plant of Crane Iron Works but from the several other manufacturing establishments adjacent to its line. Applying those tests defendant here cannot be regarded as a common carrier.
Plaintiff cites also U.S. v. California, 297 U.S. 175, 56 S. Ct. 421, 80 L. Ed. 567, as authority that the purposes of incorporation of the owner of rail facilities are not dispositive of the issue whether or not it is a common carrier. With that general principle I agree, but under the facts of that case it was clear that the State of California was operating as a common carrier. The State Belt Railroad, owned by the State, was a terminal facility servicing 175 industries and 45 piers and it served as a link in the through transportation of interstate shipments to and from points in San Francisco over connecting carriers. Its service was of a public character and for hire. It was pointed out in that case that all the essential elements of interstate rail transportation were present in the service rendered by the State Belt Railroad, i.e., the receipt and transportation for the public for hire of cars moving in interstate commerce.
With regard to plaintiff's contention that the defendant carries goods of others in that it ships its products F.O.B. plant, little need be said. I assume that the same situation obtains in the case of every plant facility. It is clear that General Electric Company moves only its own products and whether or not title has passed when General Electric moves those products over its own tracks to Pennsylvania Railroad's siding that service is rendered solely for the convenience of the defendant and no separate charge is made therefor. With respect to the movement of the goods of other consignees of less than carload shipments in cars containing partial shipments to or from General Electric Company, the only movements that are made by the defendant are those for its own convenience and benefit. They add nothing to the service rendered by the common carrier to the other consignees and no charge is made for those movements by General Electric Company. Certainly it could not be contended that the other consignees of less than carload shipments have a right to demand that General Electric Company perform those services. It would appear beyond question that the defendant could refuse to move such cars and could unload its consignments of freight from the Pennsylvania Railroad's siding without moving the cars containing less than carload shipments.
For the reasons set forth above, the conclusion is inescapable that the defendant General Electric Company is not a common carrier by railroad engaged in commerce between the states, that plaintiff has no right of action against it under the Federal Employers' Liability Act and, therefore, defendant is entitled to judgment in its favor. An order will be entered accordingly.
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