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DUFFY v. ARMCO STEEL CORP.
January 29, 1964
Alberta F. DUFFY, Administratrix of the Estate of Joseph P. Duffy, Deceased, Plaintiff,
ARMCO STEEL CORPORATION, A Corporation, Defendant
The opinion of the court was delivered by: WILLSON
This action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, by Alberta F. Duffy as administratrix of the estate of her deceased husband, Joseph P. Duffy. The case is before the Court on a motion by defendant, Armco Steel Corporation, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The complaint alleges that defendant is engaged in the business of operating a railroad in interstate commerce and that this Court has jurisdiction by virtue of the provisions of the Federal Employers' Liability Act and related Acts of Congress. It further alleges that plaintiff's decedent was working as a brakeman on one of defendant's train crews when an accident took place because of the negligence of defendant's employees which resulted in the death of plaintiff's decedent. In Paragraph 6 it is alleged that at the time of the accident plaintiff's decedent was employed by the defendant in the furtherance of interstate commerce or in activities which in some way directly or closely and substantially affect interstate commerce.
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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