Southern Pac. Co. v. Libbey

• Decision Date: 01 October 1952
• Docket Number: No. 13078.,13078.
• Citation: 199 F.2d 341
• Parties: SOUTHERN PAC. CO. v. LIBBEY.
• Court: U.S. Court of Appeals — Ninth Circuit

199 F.2d 341 (1952)

SOUTHERN PAC. CO. v. LIBBEY.

No. 13078.

United States Court of Appeals Ninth Circuit.

October 1, 1952.

Arthur B. Dunne, Dunne, Dunne & Phelps, San Francisco, Cal., for appellant.

Daniel V. Ryan, Thomas C. Ryan, Ryan & Ryan, San Francisco, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

Libbey brought this action against the Southern Pacific Company to recover damages for injuries received by him at a time when he claimed that he was an employee of the Company and entitled to the benefits of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.¹ The appeal is from a judgment in his favor.

At the time in question Libbey was in the Company's roundhouse at Roseville, California. Two days previously he had become a student fireman with the understanding that he would be a student for two weeks, after which, if he qualified, he would go on regular pay. As soon as he was given his first instructions at the superintendent's office, which included a lecture on rules and regulations and the use of care, he was told to report to the master mechanic who sent him to the roundhouse foreman. At the latter's direction, he followed employees who were lighting fires in locomotives. The first day Libbey did nothing but follow these firelighters and lighted no fires himself. On the next day he followed the same firelighters about the roundhouse and he himself lighted fires on two different locomotives. On this day, before Libbey's shift had terminated, the firelighters had finished lighting all the fires that were required and one of them told Libbey "just to stand around and watch and pick up whatever you can learn, can't help you anymore; we have lit all the fires and the engines are ready." Libbey was then standing in a corner looking around when one Petersen, an engine hostler, came by and told Libbey that he, Petersen, was going to move an engine. According to Libbey, Petersen asked him if he would like to go with him. Libbey climbed into the cab of the engine with Petersen and took his place on the fireman's side of the cab while Petersen sat on the engineer's seat. Libbey said he was merely watching Petersen to see what he could learn. When Petersen started to back the locomotive there was a flashback of fire into the cab, which was due to the fact that the fire box door had been left open and the draft which followed the moving of the throttle drove the fire into the cab. It is conceded that the leaving of the door open was negligence chargeable to the company. The fire cut off Libbey's opportunity to escape. He was in danger of being burned and he jumped out of the cab window to the concrete floor some 12 feet below and in doing so fractured the femur of his right leg, thus receiving the injuries for which he sought recovery in this action.

Appellant's specifications of error fall into two groups. In one category are the contentions, first, that as a matter of law Libbey was not, at the time of his injuries, an employee within the meaning of the Federal Employers' Liability Act, and second, that in any event, he was not engaged in interstate commerce within the meaning of the Act. If appellant were to prevail upon either of these two contentions, it would be entitled not only to a reversal but to a dismissal of the action. Specifications in the other category relate to alleged errors in the exclusion of evidence offered, and in the refusal of proposed instructions, as well as a specification relating to the size of the verdict.

The court submitted to the jury the question of whether, under the instructions, Libbey was an employee of the Company. Appellant asserts that it was error to leave this to the jury, that there was no evidence to show that the relation of master and servant existed.

When Libbey was sent to the roundhouse foreman he was handed two sheets of paper which were printed forms to be signed at the end of each sheet. These forms were headed "Authority to pass and instruct student". One of them, bearing date of Libbey's first day as a student, was introduced in evidence and was apparently executed and signed on that day by the roundhouse foreman. On the first line is inserted Libbey's name, the statement that the occupation referred to is that of fireman, and the date. Below this, in print is the following: "Please see that student is thoroughly instructed in the duties of the position named, and impress upon him the importance of thoroughly acquainting himself not only with the duties of that position but of any other with which he may be intrusted, or to which he may aspire. The necessity for carefulness, courtesy, reliability, loyalty and honesty should be pointed out, as well as the advantages that will accrue from his getting along pleasantly with his fellow-workers. At conclusion of student's trips with you, please fill out and sign the following report and forward it to my office. (Place for signature) Title ......." Following this are inserted with pen and ink the date, the shift, (3 to 11 p. m.), the word "firelighter", and under the printed words "Opinion for fitness for position", the word "learning". When Libbey came to the foreman the latter instructed him to keep his eyes and ears open and "learn everything I could about being a fireman". It was then that he was told to follow the firelighters.

It was argued that under these circumstances Libbey could not be held to be an employee. It is said this result follows not only because he was not instructed to perform any services, but also because his being in the cab of the locomotive was no part of what he had been instructed to do.

We think that it cannot be said that as a matter of law there was insufficient evidence to warrant the jury in finding that Libbey was in fact an employee of the company at the time of his injuries. The case of Watkins v. Thompson, D.C., 72 F. Supp. 953, reviews substantially all of the cases relating to the question of when a person in the position of student fireman, or student brakeman, or other similar student position, is an employee within the meaning of the Employers' Liability Act. Both parties have cited that case with approval and are in agreement that it correctly summarizes the tests to be applied in such cases. Measured by the rules there set forth, the evidence here was sufficient to establish the fact of employment and the relationship of master and servant within the meaning of the Act.²

Appellant contends that of the cases cited in the Watkins case, those in which the plaintiff was held an employee were cases in which the student was actually performing some work. Here, appellant says, although it appears that Libbey did light some fires, he was not told to do so, and hence he must be deemed to have done that as a volunteer and as an experiment for his own benefit. We think that it would be improper to take so strict a view of this evidence. The jury could properly infer from the evidence that the work of lighting the fires was not only the natural and normal thing for a learner to do, but that it was done with the consent and approval of those in whose charge he had been placed.

As for the contention that the employment had ceased when the fires had all been lighted on the day in question, it is to be noted that Libbey's shift had not then been terminated. He was not wholly unwarranted in assuming that a part of what he was supposed to do was to watch what was going on and see what he could learn by observation. This would be a fair interpretation of the statement in the form quoted above to the effect that Libbey was to thoroughly acquaint himself with the duties of the position of fireman. The roundhouse foreman had also told him "to keep my eyes and ears open and learn everything I could about being a fireman." The jury reasonably could believe that Libbey was in the cab in order to learn what he could "about being a fireman."

Appellee contends that the decisions upon this matter go so far as to hold that the student learning by observation only is performing work for the benefit of the railroad. Certainly something may be said for that view. While the obtaining of instruction is for the benefit of the student it is also something which is for the benefit of the railroad. In applying the test as to "whose work was being performed at the time of the injury", it could, perhaps, be said that the mere learning by observation was a part of the railroad's work. It is essential to the continuation of the company's business that it provide instruction and training for new employees.

We find it unnecessary in this case to go so far. Here, as in the other cases cited in the Watkins case, supra, Libbey had on the day in question actually done some work in that he had lighted fires himself. The fact that he did not replace any of the regular firelighters is of no significance. If, as we think cannot be questioned, Libbey was actually an employee while he was going about after the firelighters and lighting fires, it must follow that he was still an employee when, after the lighting was terminated he stood and looked about him. Once it has been shown that a claimant under the Act has become an employee, he does not lose his character as such when he leaves his precise place of work and does other acts which are incidental to his employment, even although the latter acts may not involve pulling levers, swinging picks, or lighting fires. Thus it has been held that a fireman did not cease to be an employee when he left his engine, which he had just prepared to depart for a run, and walked across the tracks in order to go to his boarding house. North Carolina R. R. v. Zachary, 232 U.S. 248, 260, 34 S.Ct. 305, 309, 58 L.Ed. 591.³ In Chicago, M., St. P. & P. R. Co. v. Kane, 9 Cir., 33 F.2d 866, 868, this court held that a newly employed track workman who had "not yet lifted a pick or stuck a shovel into the ground", who before...