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205

Opinion of the Court.

either count. 64 F. (2d) 472. This Court granted certiorari.

Distinct questions are presented with respect to each count and they will be considered separately.

First. By the first paragraph, the jurisdiction of the Federal court was rested upon the sole ground that the injury had been sustained during petitioner's employment in interstate commerce and that the cause of action arose under the pertinent Federal legislation. To support the jurisdiction of the District Court for the Northern District of Indiana, the complaint alleged that respondent was engaged in business in that district at the time of the commencement of the action. Respondent's challenge to the jurisdiction was upon the grounds (1) that at the time of the injuries petitioner was not employed in interstate commerce and hence the action would not lie under the Federal Employers' Liability Act, and (2) that respondent was a corporation organized under the laws of Virginia and an inhabitant of the Eastern District of Virginia, and hence, so far as the action rested upon the Safety Appliance Acts of Congress, and the rules and orders of the Interstate Commerce Commission, it could not be brought in a Federal court in any district other than the Eastern District of Virginia. Jud. Code, § 51; 28 U.S.C. § 112.

Petitioner's demurrer to the plea in abatement as to the first cause of action was sustained by the trial court. That court pointed out that the plea did not deny that respondent was doing business within the Northern District of Indiana and that the pleading, in substance, went to the merits. The Circuit Court of Appeals took a different view, holding that so far as petitioner relied upon a violation of the Safety Appliance Acts, the action must be brought in the district of respondent's residence. In reversing the judgment, the Circuit Court of Appeals re

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Opinion of the Court.

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manded the cause with instructions to grant permission to petitioner to amend his first paragraph to conform exclusively to the theory of a violation of the Federal Employers' Liability Act.

This ruling of the appellate court cannot be sustained. The jurisdiction of the District Court is to be determined by the allegations of the complaint. Mosher v. Phoenix, 287 U.S. 29, 30; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105. These allegations clearly set forth, in the first paragraph, a cause of action under the Federal Employers' Liability Act. Every essential ingredient of such a cause of action was appropriately alleged. The Federal Employers' Liability Act expressly recognized that in an action brought under its provisions the question of a violation of the Safety Appliance Acts might be presented and determined. This is the unmistakable effect of the provisions that, in such an action, the employee shall not be held " to have been guilty of contributory negligence,” or “to have assumed the risks of his employ

, ment” in any case" where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” Act of April 22, 1908, SS 3, 4, 45 U.S.C. SS 53, 54. By the phrase “any statute enacted for the safety of employees ” the Congress evidently intended to embrace its Safety Appliance Acts. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503. This Court has said that the statutes are in pari materia and that “where the Employers' Liability Act refers to any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of the Safety Appliance Act as 'negligence '—what is sometimes called negligence per se.” San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U.S. 476, 484. Where an employee of an interstate carrier sustains injuries while employed in the interstate commerce of the carrier, his action

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may thus be brought under the Federal Employers' Liability Act in connection with the Safety Appliance Acts 5

Under the Federal Employers' Liability Act an action may be brought“ in a District Court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.” 45 U.S.C. $ 56. It follows that, upon the allegations of the complaint, the action on the claim set forth in the first paragraph was properly brought in the District Court for the Northern District of Indiana where respondent was doing business when the action was begun.

Second. In the second paragraph of the complaint, which treated the injuries as received in intrastate commerce, diversity of citizenship was alleged; that petitioner was a citizen of Indiana, and a resident of the city of Fort Wayne in that State, and that respondent was a citizen of Virginia doing business in Indiana. The plea in abatement, admitting respondent's citizenship in Virginia, denied that petitioner was a resident of Fort Wayne or of the Northern District of Indiana, or was a citizen of that State, and alleged that as the cause of action set forth in the second paragraph arose under the Federal Safety Appliance Acts, the action could not be brought

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See Southern Ry. Co. v. Crockett, 234 U.S. 725, 727; St. Louis & San Francisco R. Co. v. Conarty, 238 U.S. 243, 248; Great Northern Ry. Co. v. Otos, 239 U.S. 349, 350; San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U.S. 476, 484; Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497, 498; Atlantic City R. Co. v. Parker, 242 U.S. 56, 58; St. Joseph & G. I. Ry. Co. v. Moore, 243 U.S. 311, 312; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121, 124; Davis v. Wolje, 263 U.S. 239, 240; Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521, 528; Chicago Great Western R. Co. v. Schendel, 267 U.S. 287, 289; Minneapolis, St. P. & S. S. M. Ry. Co. v. Goneau, 269 U.S. 406, 407.

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in any district other than the Eastern District of Virginia. The District Court took evidence on the issue of fact, found that the petitioner was a citizen of Indiana and a resident of Fort Wayne, and overruled the plea. The Circuit Court of Appeals held that the District Court of the Northern District of Indiana was without jurisdiction, in the view that the second count attempted to set forth a cause of action " under the Federal Safety Appliance Act as well as under the statutes of Kentucky' and hence that jurisdiction did not rest solely on diversity of citizenship. Jud. Code, $ 51, 28 U.S.C. § 112. In remanding the cause, the Circuit Court of Appeals directed that petitioner be allowed to amend the second paragraph of his complaint so as to conform exclusively to the theory of a violation of the Kentucky statute.

a While invoking, in the second count, the Safety Appliance Acts, petitioner fully set forth and relied upon the laws of the State of Kentucky where the cause of action

In relation to injuries received in that State in intrastate commerce, aside from the particular bearing of the Federal Safety Appliance Acts, the liability of respondent was determined by the laws of Kentucky. Slater v. Mexican National R. Co., 194 U.S. 120, 126; Cuba R. Co. v. Crosby, 222 U.S. 473, 478; Young v. Masci, 289 U.S. 253, 258; Ormsby v. Chase, 290 U.S. 387. The statute of Kentucky, in prescribing the liability of common carriers for negligence causing injuries to employees while engaged in intrastate commerce, reproduced in substance, and with almost literal exactness, the corresponding provisions of the Federal Employers' Liability Act as to injuries received in interstate commerce. Ky. Acts, 1918, c. 52, $$ 1-3, p. 153; Carroll's Ky. Statutes, 1930, $$ 820 b–1, 820 b–2, 820 b–3. The Kentucky Act provided that no employee should be held" to have been guilty of contributory negligence” or “to have assumed the risk of his employment" in any case" where the violation by

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Opinion of the Court.

such common carrier of any statute, state or federal, enacted for the safety of employees contributed to the injury or death of such employee.Id. The Kentucky legislature read into its statute the provisions of statutes both state and federal which were enacted for the safety of employees, and the Federal Safety Appliance Acts were manifestly embraced in this description. Louisville & Nashville R. Co. v. Layton, 243 U.S. 617, 619. Thus, the second count of the complaint, in invoking the Federal Safety Appliance Acts, while declaring on the Kentucky Employers' Liability Act, cannot be regarded as setting up a claim which lay outside the purview of the state statute. As in the analogous case under the Federal Employers' Liability Act, a violation of the acts for the safety of employees was to constitute negligence per se in applying the state statute and was to furnish the ground for precluding the defense of contributory negligence as well as that of assumption of risk.

The Circuit Court of Appeals took the view that if it were assumed that the second count was based exclusively upon the Kentucky statute, that statute and the federal requirements could not be considered as being in pari materia because the latter applied only to interstate commerce, and that, if the petitioner were permitted to establish the negligence required by the state statute by showing the violation of the federal requirements the court would thereby be placed " in the anomalous position of extending the benefits of the Safety Appliance Act to intrastate commerce."

This is an erroneous view. The original Safety Appliance Act of March 2, 1893, 27 Stat. 531, did not embrace all cars on the lines of interstate carriers but only those engaged in interstate commerce. Brinkmeier v. Missouri Pacific Ry. Co., 224 U.S. 268. By the amending Act of March 2, 1903, 32 Stat. 943, the scope of the statute was enlarged so as to include all cars "used on any railroad

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