Mildred A. Pickney, Personal Representative of Joe Pickney, Deceased v. Oro Dam Constructors, Etc.

Appellants are here complaining of the judgment of the trial court dismissing the complaint following a preliminary hearing pursuant to Rule 12(d), Rules of Civil Procedure. The trial court dismissed on finding lack of jurisdiction of the Federal District Court.

Appellants, plaintiffs below, filed an action invoking federal jurisdiction by alleging a claim for wrongful death under Federal Employer’s Liability Act, 45 U.S.C.A. § 51 . The defendants denied applicability of F.E.L.A. The purpose of the preliminary hearing was to determine the applicability of F.E.L.A. The husband-father of plaintiffs had been killed in a head-on train collision while he was operating a railroad engine pulling a trainload of earth material for defendant Oro Dam Constructors. Decedent’s engine was struck by a train of empty cars which was returning from a similar haul.

There is no conflict in the evidence that decedent was employed by defendant Oro Dam Constructors, that Oro Dam Constructors was a construction combine or joint venture engaged in building Oroville Dam across the Feather River near Oroville, California, that defendant Western Pacific Railroad had no supervision or control or direction…