The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
These are two motions; one, by the defendant to dismiss the complaint, and the other, by the plaintiff for an order striking from defendant's answer the fifth defense and so much of the first defense as denies the allegations contained in paragraph "IV" of the complaint.
Paragraph "IV" of the complaint is as follows: "At the time and place plaintiff was injured, as hereinafter described, he was in the employ of the defendant, and both plaintiff and defendant were engaged in interstate transportation, and at said time and place, all or part of plaintiff's duties, as such employee of the defendant, were in furtherance of interstate or foreign commerce and directly or closely and substantially affected such commerce."
Both motions relate to the question as to whether or not the plaintiff was employed in interstate commerce.
The parties have entered into a written stipulation of all the facts relating to interstate commerce. It is as follows:
"It Is Hereby Stipulated, by and between the parties to the above entitled action, for the purposes of this action only:
"1. That the defendant has for many years owned and operated a railroad system as a common carrier of passengers and freight in both interstate and intrastate commerce; and that it was engaged in such transportation on its main line and on a part of its railroad system known as the Conemaugh Division.
"2. That said Conemaugh Division consists of one eastbound and one westbound track, which, between Blairsville, Pennsylvania, and its point of connection with the main line, were at all the times herein mentioned, used for the transportation of freight in both interstate and intrastate commerce.
"3. That a portion of the tracks of said Conemaugh Division had for many years run parallel to the Conemaugh River; that in order to shorten a portion of said tracks, to reduce grades and eliminate curves and slides thereon, and to effect more efficient transportation of freight in interstate and intrastate commerce on defendant's railroad, the defendant undertook about seven years prior to December 31, 1940, a project known as the East of Blairsville Revision of Track Alignment, which consisted of the construction of roadbed and track approximately 8,000 feet in length to be connected at both ends with the existing tracks of said Conemaugh Division and to replace a portion of such existing tracks.
"4. That said Track Alignment Revision was made at a cost of about $255,000, and, unless connected with the existing tracks of the Conemaugh Division for the operation of cars and trains thereon, and the transportation of freight in interstate and intrastate commerce on defendant's railroad, was of no use to the defendant.
"5. That said Track Alignment Revision resulted in the shortening of defendant's tracks by approximately 670 feet, in the elimination of five curves, in reduction of grade, and in avoidance of slides thereon.
"6. That the grading and fill of the roadbed of said Track Alignment Revision was done by an independent contractor and was finished by said contractor shortly prior to December 16, 1940; that thereupon and on or about December 16, 1940, it became necessary for the defendant by its own employees to place tracks upon said roadbed, consisting of rails, ties and ballast, which the defendant proceeded to do.
"7. That for about fifteen months prior to December 31, 1940, plaintiff had been in defendant's employ as a trackman or track laborer, and that for some months prior to December 16, 1940, he had worked as a trackman in the maintenance of defendant's tracks and roadbed, which were in use for the transportation of freight and passengers in interstate and intrastate commerce.
"8. That beginning about December 16, 1940, he commenced work in connection with the placing of rails, ties and ballast on said Track Alignment Revision, and he was engaged in such employment ...