Tom E. Rodgers v. Baltimore & Ohio Railroad Co.

323 F.2d 996, 1963 U.S. App. LEXIS 3946

Opinion

323 F.2d 996

Tom E. RODGERS, Plaintiff-Appellant,
v.
BALTIMORE & OHIO RAILROAD CO., Defendant-Appellee.

No. 79.

Docket 28158.

United States Court of Appeals Second Circuit.

Argued October 18, 1963.

Decided October 18, 1963.

Jacob Rassner, New York City, for plaintiff-appellant.

Alexander & Green, New York City, (Donald M. Dunn, Alfred C. Moran, New York City, of counsel), for defendant-appellee.

Before WATERMAN, HAYS and MARSHALL, Circuit Judges.

PER CURIAM.

We affirm the judgment below in open court.

From the testimony of plaintiff in his deposition below it is clear that the accident suffered by him occurred under such circumstances that his sole and exclusive remedy was under the Longshoremen's and Harbor Workers' Compensation Act. The complaint below alleged jurisdiction by virtue of the Federal Employers' Liability Act. Thus, the motion for summary judgment was properly granted. Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1952).