Cook v. Southern Ry. Co.

96 S.E. 148, 109 S.C. 377, 1918 S.C. LEXIS 242

• Court: Supreme Court of South Carolina
• Decided: April 12, 1918
• Docket: 9953
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Cage.

Appeal from an order of the Circuit Court which directed the removal of the cause to the Federal Court. The action is by the administratrix of an employee of the defendant company for a tort to the person of the deceased alleged to have resulted from an unsafe place to work and unsafe appliances to work with. The employee, it is alleged in the complaint, was a car repairer, and at the instant was mounted on a ladder, working upon a passenger coach, when the ladder fell, and precipitated the .workman to his death on a cement floor.

The counsel for defendant, stated at the bar that if the complaint had set out a cause of action under the act of Congress, then in that event there would have been no motion for a removal, but the 'motion would have been a nonsuit on failure of proof. The same counsel admitted that if the complaint sets out a case under the act of Congress, it is not removable. And the same counsel further said, there is nothing in the complaint to exclude the idea that car would be used in State as well as interstate commence; and if the car was to be used in commerce of both sorts, then the cause is not removable;.

1 So the only issue to be decided is, Has the complaint alleged circumstances which, if true, show that the work man at the instant of his hurt was engaged in commerce betwixt the States? Ret the complaint be reported. The second paragraph alleged that the defendant was at the time in question engaged in the business of a common carrier both of passengers and freight in interstate and intrastate commerce.

The fourth paragraph alleges that the workman was a car repairer, and at the time in question was at work on a passenger coach in defendant’s division shops in Richland county, South Carolina.

The sixth paragraph alleges that the car referred to was used in commerce of both sorts, and was brought to the shops for repairs a short time before the accident, with a view to its being returned and continued in such interstate and intrastate commerce. If that be true, and for the purposes of the motion it is assumed to be so, then the case is the same as if the car had been stopped on the railroad highway for repair, in which event there will be no question but that in such an instance the repair was being done while the car was in interstate service.

2, 3 It matters not that the allegations are that the car had been and was to be used in both services; the plaintiff could not know in which; the defendant’s liability, under the act of Congress or under the statute of the State, would follow the proof as to that matter. If it turns out by the testimony that the car was to be forthwith turned to State service, then the State law fixes the rights and duties of the litigants. If it turns out that the car was to be forthwith turned to interstate service, then the act of Congress fixes the rights and duties of the parties, and upon the judicial ascertainment of that fact the State Court shall proceed to the trial of the cause as is specially provided by the act of Congress.

The judgment is reversed.