County, Pennsylvania. This equipment is used to transport material and equipment from one place to another within the plant and to other plants of defendant located in the same area over leased rights of way. All inbound railroad cars containing material and equipment Are delivered by the Bessemer & Lake Erie Railroad, a common carrier by railroad, to a track within the defendant's plant, and are then moved from place to place within the defendant's plant by use of the Defendant's locomotives. All outbound railroad cars containing material and equipment are moved from places within defendant's plant by use of its locomotives to a track within defendant's plant and are then moved to places outside the plant by the Bessemer & Lake Erie Railroad. None of such inbound or outbound railroad car or the locomotives pulling such cars are owned by defendant.
The railroad equipment owned and operated by Armco has not been used to transport goods of others, nor has Armco offered their use to the public. Thus, it appears to a certainty that there is no genuine issue as to any material fact in this case. Defendant asserts, and the Court agrees, that defendant although operating in interstate commerce is not a common carrier by railroad. In fact the complaint does not aver that it is a common carrier by railroad. The averment is that plaintiff's decedent was '* * * in the furtherance of interstate commerce * * *' at the time he was injured. The basis of the Court's jurisdiction, however, under Section 1 of the Federal Employers' Liability Act is that the defendant must be a common carrier by railroad as well as being engaged in interstate commerce. Section 1 of that Act says:
'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * *'. See also Kelly v. General Electric Co., 110 F.Supp. 4 (E.D.Pa.1953), aff'd. 204 F.2d 692 (1953), cert. den. 346 U.S. 886, 74 S. Ct. 137, 98 L. Ed. 390 (1953); Tilson v. Ford Motor Company, 130 F.Supp. 676 (E.D.Mich.S.D.1955).
The defendant is entitled to judgment.
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