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January 13, 1954


The opinion of the court was delivered by: FORMAN

On February 20, 1952, plaintiff, Nicholas Scrinko, filed a complaint in this court alleging, among other things, that he, a resident of Perth Amboy, New Jersey, was a 'coal trimmer and railroad employee' of the defendant, Reading Company, a corporation engaged in the operation of a railroad in interstate commerce; that on September 28, 1950 a barge moored at a pier of the defendant at Port Reading, New Jersey, was being loaded with coal by the defendant; that in the course of his employment plaintiff was required to go aboard the barge and while in the exercise of his duties a hatch cover fell upon the plaintiff and he was injured due to the alleged negligence upon the part of the defendant. On March 17, 1952, defendant answered the complaint for the most part denying the allegations and setting up separate defenses that the injuries, if any, sustained by the plaintiff, occurred on navigable waters and that his right to recover for such injuries is governed by the Act of Congress of the United States known as the Longshoremen's and Harbor Workers' Compensation Act *fn1" and in the alternative that the plaintiff failed to use reasonable care for his own safety and was guilty of negligence causing or contributing to his injury.

On December 9, 1952 counsel for the parties stipulated that the complaint of the plaintiff should be amended by the addition of an allegation that the action arose under

 'the Act of Congress, April 22, 1908, c. 149; 35 Stat. 65, and amendments thereto, U.S.C., Title 45, sec. 51 et seq., and further amended by the Act of Congress approved by the President of the United States on August 11, 1939, Chapter 685-1st Session of the 76th Congress, known and cited as 'The Federal Employers' Liability Act', and the 'Safety Appliance Act' (45 U.S.C.A. § 1 et seq.).'

 The stipulation further provided that the defendant denied the amended allegations except that the address of the plaintiff was admitted.

 In October of 1953 the plaintiff moved for a jury trial urging the following grounds:

 '(a) The plaintiff did not waive a jury trial; (b) negligence under the Federal Employers' Liability Act is for the jury to determine; (c) the rule precluding a jury trial to this plaintiff is unconstitutional as it denies to this plaintiff a right inviolate preserved to him; and (d) the right of the court to make the rule was granted with the express proviso that the right to a trial by jury shall be preserved inviolate to the parties, including the plaintiff.'

 Rule 38(d) of the Federal Rules of Civil Procedure, 28 U.S.C., provides:

 'The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. * * *'

 No valid demand was made for a jury in this case. In fact it was not until the case was placed on a trial calendar that plaintiff's present counsel, on October 8, 1953, made an informal ex parte application for a jury trial. There is nothing before the court now to prove that former counsel had inadvertently waived a jury trial. Present counsel merely voices it as his opinion that his predecessor erred or was negligent in so doing. The relevant Federal Rules of Civil Procedure have now been in effect approximately 15 years and it can be reasonably expected that counsel are familiar with them. While circumstances are readily conceivable which might move a court to permit a demand for jury trial where, as in this case, it has been waived by operation of the rules there should be a showing thereof to the level that they logically induce such action by the court. To require less is to countenance the rendering of the rules into impotency and an undermining of the very orderly procedures they are designed to effect. 5 Moore's Federal Practice (2d ed.) page 715 and cases therein cited. Nor is the inference that the rules in any event cannot deprive plaintiff of his fundamental right to a jury trial, as sought by his attorney to be established, an acceptable one. Jury trial in this case was waived by failure of the plaintiff, of course through his lawyer, to act in conformity with rules governing the subject and no substantial reason has been advanced why that waiver should now be vacated and a jury granted. The motion for the same will be denied.

 Upon the argument of the foregoing motion, however, a shaft was aimed much more closely to the very heart of this lawsuit. In resisting the motion the defendant gave as one of its reasons the proposition that in no event would a jury be necessary in this case for there was no question of fact, but only one of law, which the defendant would rest upon at the trial of the case. It reiterated the special defense set up in its answer, namely that plaintiff was not entitled to sue under the Federal Employers' Liability Act and the Safety Appliance Act upon which he had predicated his complaint, but, that he was relegated to his remedy under the Longshoremen's and Harbor Workers' Act.

 Recognizing that this was a defense that the parties would have to come to grips with sooner or later counsel dispensed with the formalities of noticing a new motion to raise the question and agreed to then and there meet the issue. The attorney of the defendant conceded that the barge in question in this case was not the property of the defendant and the attorney of the plaintiff conceded that it was in excess of 18 tons net, that when plaintiff had his accident thereon it was lying in navigable waters and that the defendant along with its railroad business engaged in some maritime operations.

 Therefore the present application will be treated as if it were a motion by defendant for judgment on the pleadings dismissing the complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.

 The single question raised is whether the plaintiff may maintain his complaint in this case under the Federal Employers' Liability Act, for it is quite clear that no state of facts is alleged to ...

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