This was an action against a railway company to recover for personal injuries. The right of action was predicated upon the Federal employers' liability act of April 22, 1908, 35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322, as amended April 5, 1910, 36 Stat. at L. 291, chap. 143, U. S. Comp. Stat. Supp. 1911, p. 1324, and it was alleged that the injuries were sustained while the defendant was engaged, and while the plaintiff was employed by it, in interstate commerce. There was a plea of not guilty, and a trial resulted in a judgment of compulsory nonsuit. The case is here upon a direct writ of error based upon a certificate that the court's decision was given upon a jurisdictional ground; namely, that 'the evidence produced at the trial of the case did not disclose that plaintiff, at the time of the happening of the accident by which he received the injuries complained of, was engaged in interstate commerce.'

Although counsel have presented the case as if it were properly here, it is manifest that it is not. The clause in § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 228], providing for a direct writ of error 'in any case in which the jurisdiction of the court is in issue,' refers, as we have repeatedly held, to cases in which the power of the court, as a Federal court, to hear and determine the cause, is in controversy. Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175, 178, 55 L. ed. 163, 164, 31 Sup. Ct. Rep. 185; United States v. Congress Constr. Co. 222 U. S. 199, 56 L. ed. 163, 32 Sup. Ct. Rep. 44; R. J. Darnell v. Illinois C. R. Co. 225 U. S. 243, 56 L. ed. 1072, 32 Sup. Ct. Rep. 760. No such issue is here disclosed. The power of the court, as a Federal court, to hear and determine the case, was not questioned. Nor did the court hold that it was without jurisdiction in that sense. On the contrary, it proceeded to a hearing and decided that the plaintiff could not recover under the Federal act because one element of his asserted cause of action was without any evidence to sustain it. Had the action been brought in a state court, as it could have been, the same question would have arisen; and had the evidence been similarly insufficient, a like decision must have ensued. We say the action could have been brought in a state court, because § 6 of the Federal act declares: 'The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.' And we say the result must have been the same in a state court upon similar evidence, because the right of recovery given by the act (§ 1) is restricted to injuries suffered while the employee is employed in interstate commerce.

It follows that there was no basis for the direct writ of error. If a review of the decision was desired it should have been sought in the Circuit Court of Appeals.

Writ of error dismissed.