motion to remand the case to the state court on the ground that it was not one arising under the Constitution or laws of the United States and that it was not removable. The court denied the motion to remand, and after judgment for plaintiff both parties appealed. The Court of Appeals for the Tenth Circuit reversed and ordered the case remanded to the state court. The court first discussed the general test enunciated in the Gully case and then added:
'The primary Congressional purpose in the enactment of the Safety Appliance Act was to protect employees and passengers, but the act imposes upon carriers duties with respect to brakes which are broad enough to bring within their purview protection of travelers at crossings. (Cases cited.) While it prescribes absolute duties and creates correlative rights in favor of injured persons, it does not attempt to lay down rules governing actions for enforcing such rights. Instead, it leaves the nature, incidents, and regulation of the remedy to the law of the states. An action by a traveler on the highway for damages growing out of the failure of a carrier to comply with the provisions of the Act does not take its origin in the laws of the United States. An action of that kind has its genesis and regulation in the law of the state, either statutory or common law. * *
'The allegations in the complaint charging as an element of negligence failure on the part of the defendant to comply with the exactions of the Safety Appliance Act merely tendered the issue of fact whether the train was operated without brakes being in operative condition as required by the Act. * * * It does not set forth any right or immunity which would be supported if the Act be given one construction or effect and defeated if given another. While the pertinent provisions of the Act lurked in the background as creating a duty the breach of which constituted negligence, the right of action available and the incidence of such right of action sprang from the law of Utah. It did not arise under the laws of the United States.' 169 F.2d at pages 330, 331. (Italics added.)
Judge Smith of this court in dismissing an action for lack of jurisdiction in Bullock v. U.S., D.C., 72 F.Supp. 445, 446, as one not arising under "a law regulating interstate and foreign commerce" made this apposite statement:
'It clearly appears from the specific allegations of the complaint that this is the ordinary tort action in which the local law is determinative of both the rights of the plaintiffs and the liability of the defendant. The Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., Part II of the Interstate Commerce Act, upon which the plaintiffs predicate the jurisdictional allegation, vests no right of action in plaintiffs and imposes no liability upon the defendant, except the usual obligation to comply with its provisions and the regulations promulgated thereunder. This is, therefore, not an action arising under either a law of the United States or a law regulating commerce. Gully v. First National Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70; Hull v. Burr, 234 U.S. 712, 34 S. Ct. 892, 58 LEd. 1587; Shulthis v. McDougal, 225 U.S. 561, 32 S. Ct. 704, 56 L. Ed. 1205; Toledo, P. & W.R.R. v. Brotherhood of R.R. Trainmen, etc., 7 Cir., 132 F.2d 265; Viles v. Symes, 10 Cir., 129 F.2d 265; Viles v. Symes, 10 Cir., 129 F.2d 828; Gardner v. Schaffer, 8 Cir., 120 F.2d 840; Isaac Kubie Co. v. Lehigh Valley R. Co., D.C., 261 F. 806.' 72 F.Supp.at page 446.
In support of their position, defendants cite the case of Actiesselskabet Ingrid v. Central R. Co. of N.J., 2 Cir., 1914, 216 F. 72, 82, L.R.A. 1916B, 716, for the proposition that the federal law exclusively controls shipments of explosives in interstate commerce. However, the statement in the case to that effect was not made with reference to the jurisdiction of the federal court, the suit being in admiralty, but pertains merely to the question of whether the failure to comply with the requirement of the law of the State of New Jersey and with municipal regulations in respect to the storage of explosives, constituted an incidence of negligence, the libel having been dismissed by the district court for failure to prove that the respondents committed any wrongful act which caused the explosion.
Defendants also cite Neiswonger v. Goodyear Tire & Rubber Co., D.C.N.D. Ohio, 1929, 35 F.2d 761 for its holding that the federal court had jurisdiction of a suit as arising under the laws of the United States where damages were sustained when plaintiffs' horses were frightened by a low flying dirigible which was operated in violation of air traffic rules established under the Air Commerce Act of 1926, 49 U.S.C.A. § 171 et seq. Although the opinion of that court would indicate that its holding was not conditioned upon any peculiarities that might be inherent in air navigation, it suffices to say that it represents a minority view and it preceded the holdings in the Gully case and Puerto Rico v. Russell & Co., 1938, 288 U.S. 476, 53 S. Ct. 447, 450, 77 L. Ed. 903, which declared that 'the federal nature of the right of the authority to establish it.' See Annotation, 12 A.L.R.2D, 39-41.
In their arguments and briefs supporting their motions to remand, plaintiffs raised several other points,
which it will not be necessary to discuss in view of the above holdings that these cases must be remanded to the State courts.
Orders to remand all cases should be submitted.