After oral argument we have permitted attorneys for Plaintiff in Error to file an extraordinary petition for rehearing, which we have considered.
It appears to us that the Plaintiff in Error has not clearly differentiated the status of one suing claiming the benefits under the Federal Employers' Liability Act and one maintaining a suit not under the Federal Employers' Liability Act, but to recover damages for injury sustained by reason of the defendant railroad not complying with the Federal Safety Appliance Act.
The Federal Employers' Liability Act creates liability and one seeking to recover under the provisions of that Act must show by allegations in his declaration that he comes within the purview of the Act. The Federal Safety Appliance Act fixes a standard of safety appliances and provides that failure to comply with that standard by railroads engaged in interstate commerce shall constitute negligence.
In the opinion filed herein on October 21, 1938, we held that it was not necessary for the Plaintiff to allege that the negligence complained of was in the failure of the railroad company to comply with the Federal Safety Appliance Act. We held that the allegations of the declaration were sufficient to warrant recovery by the Plaintiff; that he was only required to plead ultimate facts.
It is not necessary for us to repeat here what was said in that opinion.
If what we said there requires any further authority to sustain it, we refer to the case of Moore v. Chesapeake *Page 510 Ohio Ry. Co., 78 Law Ed. 755, 291 U.S. 205, wherein the Supreme Court of the United States, speaking through Mr. Chief Justice HUGHES, said:
"The Safety Appliance Acts having prescribed the duty in this fashion, the right to recover damages sustained by the injured employee through the breach of duty sprang from the principle of the common law (Texas P.R. Co. v. Rigsby, supra, 241 U.S. 39, 40, 60, L. Ed. 877, 878, 36 S. Ct. 482) and was left to be enforced accordingly, or, in case of the death of the injured employee, according to the applicable statute. St. Louis I.M. S.R. Co. v. Taylor, supra, (210 U.S. 285, 52 L. Td. 1064, 28 S. Ct. 616); Minneapolis, St. P. S. Ste. M.R. Co. v. Popplar,237 U.S. 369, 59 L. Ed. 1000, 35 S. Ct. 609, supra. When the Federal Employers' Liability Act was enacted, it drew to itself the right of action for injuries or death of the employees within its purview who were engaged in interstate commerce, including those cases in which injuries were due to a violation of the Safety Appliance Acts. Such an action must be brought as prescribed in the Federal Employers' Liability Act and if brought in the state court it cannot be removed to the Federal Court, although violation of the Safety Appliance Act is involved. See St. Joseph G.I.R. Co. v. Moore, 243 U.S. 311, 61 L. Ed. 741, 37 S. Ct. 278. With respect to injuries sustained in intrastate commerce nothing in the Safety Appliance Acts precluded the State from incorporating in its legislation applicable to local transportation the paramount duty which the Safety Appliance Acts impose as to the equipment of cars used on interstate railroads. As this Court said in Minneapolis St. P. S. Ste. M.R. Co. v. Popplar, supra, as to an action for injuries sustained in intrastate commerce; `The action fell within the familiar category of cases involving the duty of a master to his servant. This duty is defined by the *Page 511 common law, except as it may be modified by legislation. The Federal statute in the present case touched the duty of the master at a single point and, save as provided in the statute, the right of the plaintiff to recover was left to be determined by the law of the State.'"
In Minneapolis, St. P. St. Ste. Marie Ry. Co. v. Popplar,237 U.S. 369, 59 Law Ed. 1000, 35 S. Ct. 609, it was held:
"The question whether the right to recover for the negligent killing of a railway brakeman, based upon the company's non-compliance with the safety appliance Acts of March 2, 1893, (27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, No. 8605) and March 2, 1903 (32 Stat. at L. 943, chap. 976, Comp. Stat. 1913, No. 8613), was barred as a matter of law because the brakeman, after unsuccessfully trying to work an automatic coupler, had attempted to effect the uncoupling by hand, contrary to a rule of the railway company, forbidding him to step between moving cars, is not Federal in character but is a question outside the Federal Statutes, which cannot be considered by the Federal Supreme Court on a writ of error sued out under the Judicial Code, No. 237, to a state court."
And in the body of the opinion in that case it was said, in addition to what was quoted in the opinion by Mr. Chief Justice HUGHES above referred to:
"It cannot be said, from any point of view, that any right or immunity granted by the act was denied to the plaintiff in error."
The same may be said of the instant case.
The declaration alleged that the defendant was engaged in the business of railroading. It would have been surplusage to add to the allegation "in interstate commerce" because it is now well settled as a matter of law that all corporations *Page 512 engaged in the business of railroading are engaged in interstate commerce. It was alleged that the accident occurred in the switching yard at a certain station on the railroad and it was unnecessary to add the allegation that the tracks in the switching yard constituted a part of the line of railroad engaged in interstate commerce because it is settled as a matter of law that such switching yards, sidetracks, Ys, etc., constitute a part of the highway used in interstate commerce. See U.S. v. Chesapeake, etc., R.R. Co., 213 Fed. 748. Nothing is shown to the contrary. 130 C.C.A. 262; U.S. v. Pere Marquett R. Co., 211 Fed. 220.
The judgment entered October 21, 1938, will be modified and amended to read as follows:
"Therefore, the judgment shall stand reversed and a new trial shall be had on the question of damages only which shall include the issue as to the causal connection between the alleged negligence, that is between the defective condition of the safety appliance, and the alleged injury; the extent of the injury, if any, and the damages, if any, sustained by the plaintiff by reason of, or proximately resulting from, the alleged injury."
Our opinion and judgment above referred to, so modified and amended is adhered to and the extraordinary petition for rehearing is denied.
So ordered.
WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.
TERRELL, C.J., adheres to the original opinion.
THOMAS, J., not participating. *Page 513