Plaintiff, an injured employee of an interstate common carrier
by rail, sued for personal injury, alleging that he was employed in
interstate commerce, and stating a good cause of action under the
Federal Employers' Liability Act, if so employed, and, if not,
under the state law; the defendant asked for an instruction that
the proof did not show that the injury occurred in interstate
commerce, which the court gave, and then, over defendant's
objection, treated the allegation to that effect as eliminated from
the declaration and submitted the case to the jury as one under the
state law, and plaintiff
Page 234 U. S. 87
had a verdict. Held
that defendant, having asked for
the instruction that the case could not be maintained under the
federal act, was bound thereby, and therefore was denied no right
under the federal law by the action of the state court, and the
writ of error must be dismissed.
Where the state court treats a mistaken allegation that the
injury occurred in interstate commerce as eliminated, it merely
gives effect to a rule of local practice, and does not deprive
defendant of any federal right.
as to what the effect would be if the shift from
a claim under the federal act to one under the state law cut the
defendant off from presenting a defense open under the latter or
deprived him of a right of removal.
Writ of error to review 180 Ill.App. 511, dismissed.
The facts, which involve the jurisdiction of this Court to
review a judgment of the state court in an action by a railroad
employee for personal injuries which did not occur in interstate
commerce, are stated in the opinion.
Page 234 U. S. 88
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action against a railroad company to recover for a
personal injury sustained by the plaintiff through the negligence
of the company while he was employed as a switchman in its railroad
yard in Cook County, Illinois. The action was brought in the
superior court of that county, and a trial to the court and a jury
resulted in a verdict and judgment for the plaintiff. The judgment
was affirmed by the appellate court for that district (180 Ill.App.
511), which was the highest court of the state in which a decision
of the case could be had, and this writ of error was then sued out
by the company. By a motion to dismiss the writ, our jurisdiction
to review the judgment is challenged. Shortly stated, the facts
bearing upon the disposition of the motion are these:
The plaintiff's declaration alleged that the injury occurred
while the defendant was engaged, and while the plaintiff was
employed by it, in interstate commerce. The
Page 234 U. S. 89
other allegations were such that, with that one, they stated a
good cause of action under the Federal Employers' Liability Act,
April 22, 1908, 35 Stat. 65, c. 149, and, without it, they stated a
good cause of action under the common law prevailing in the state.
There was a plea of not guilty, and upon the trial, the proof
failing to show that the injury occurred in interstate commerce,
the court, at the defendant's request, instructed the jury that the
Federal Employers' Liability Act had no application to the case.
Then, over the defendant's objection, the court treated the
allegation respecting interstate commerce as eliminated, and
submitted the case to the jury as one controlled by the common law
prevailing in the state. The plaintiff recovered under that law. In
the appellate court, the defendant contended that, even though the
allegation that the injury occurred in interstate commerce proved
unwarranted, the declaration could not be treated, consistently
with the federal act, as affording any basis for a recovery under
the law of the state, common or statutory. But the court held
otherwise, and sustained the recovery under the state law. Whether
that ruling operated as a denial of a right or immunity to which
the defendant was entitled under the federal act is the question,
and the only question, sought to be presented by the assignments of
Had the injury occurred in interstate commerce, as was alleged,
the federal act undoubtedly would have been controlling, and a
recovery could not have been had under the common or statute law of
the state; in other words, the federal act would have been
exclusive in its operation, not merely cumulative. Mondou v.
New York, New Haven & Hartford Railroad Co., 223 U. S.
, 223 U. S. 53
St. Louis &c. Railway Co. v. Seale, 229 U.
, 229 U. S. 158
North Carolina Railroad Co. v. Zachary, 232 U.
, 232 U. S. 256
Seaboard Air Line Railway v. Horton, 233 U.
. On the other hand, if the injury occurred
outside of interstate
Page 234 U. S. 90
commerce, the federal act was without application, and the law
of the state was controlling. Illinois Central Railroad Co. v.
Behrens, 233 U. S. 473
That the injury did occur outside of interstate commerce was
declared in the court's instruction to the jury, and the defendant,
having requested the instruction, is bound by it. It therefore must
be taken as settled that the right of recovery arose under the
The plaintiff asserted only one right to recover for the injury,
and, in the nature of things, he could have but one. Whether it
arose under the federal act or under the state law, it was equally
cognizable in the state court, and had it been presented in an
alternative way in separate counts, one containing and another
omitting the allegation that the injury occurred in interstate
commerce, the propriety of proceeding to a judgment under the
latter count, after it appeared that the first could not be
sustained, doubtless would have been freely conceded. Certainly
nothing in the federal act would have been in the way.
Instead of presenting his case in an alternative way, the
plaintiff so stated it as to indicate that he was claiming only
under the federal act. And when the proofs demonstrated that the
injury arose outside of interstate commerce, and therefore that no
recovery could be had under the federal act, the court was
confronted with the question whether the declaration could be
amended, or regarded as amended, to conform to the proofs. Holding
that this could be done, the court treated the mistaken allegation
that the injury occurred in interstate commerce as eliminated.
Therein the court merely gave effect to a rule of local practice,
the application of which was not in anywise in contravention of the
federal act. See Mondou v. New York, New Haven & Hartford
Railroad Co., supra,
pp. 223 U. S.
It follows that the contention that the defendant was denied a
right or immunity to which it was entitled under
Page 234 U. S. 91
the federal act is not only untenable, but so devoid of color as
to furnish no basis for this writ of error. See Sawyer v.
Piper, 189 U. S. 154
As it is not claimed that, by reason of the shifting from one
law to the other, the defendant was cut off from presenting any
defense which was open only under the latter, or that the course
taken by the plaintiff deprived the defendant of a right of removal
otherwise existing, we intimate no opinion in either
Writ of error dismissed.