Shenker v. Baltimore and Ohio Railroad Company

• Citation: 83 S.Ct. 1667,374 U.S. 1,10 L.Ed.2d 709
• Decision Date: 10 June 1963
• Docket Number: No. 414,414
• Parties: Michael SHENKER, Petitioner, v. The BALTIMORE AND OHIO RAILROAD COMPANY
• Court: United States Supreme Court

374 U.S. 1

83 S.Ct. 1667

10 L.Ed.2d 709

Michael SHENKER, Petitioner,

v The BALTIMORE AND OHIO RAILROAD COMPANY.

No. 414.

Argued April 17, 1963.

Decided June 10, 1963.

- Charles Alan Wright, Austin, Tex., for petitioner.

Alexander H. Hadden, Cleveland, Ohio, for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

The petitioner brought an action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51—60, in the Federal District Court for the Western District of Pennsylvania to recover for injuries caused by the alleged negligence of the respondent Baltimore & Ohio Railroad (B&O) and the Pittsburgh & Lake Erie Railroad (P E). At the close of the evidence, the District Court directed a verdict in favor of the P E on the ground that the evidence failed to establish that the petitioner was an employee of that company as required by § 1 of the Act (45 U.S.C. § 51). The case against the B&O, however, was submitted to the jury which returned a verdict of $40,000 for the petitioner. The District Court denied a motion for judgment n.o.v. and entered judgment as found by the jury. On appeal, the Third Circuit Court of Appeals, one judge dissenting, reversed, holding that the petitioner failed to establish negligence on the part of the B&O. 303 F.2d 596. A rehearing en banc was denied. We granted certiorari, 371 U.S. 908, 83 S.Ct. 255, 9 L.Ed.2d 169.

The petitioner was employed by the B&O at its Mahoningtown station in New Castle, Pennsylvania. The railroad complex at Mahoningtown consisted of four sets of tracks, two owned and operated by the B&O and two by the P E. On the B& O side, the B&O maintained a station and station facilities. Although the P E maintained a station, it kept no employees, all necessary services for the two stations being provided by B&O employees. The B&O ticket agent issued tickets in the B&O station for the P E trains. The petitioner provided janitor work for both stations and assisted the loading and unloading of mail cars for the trains of both railroads. The petitioner was paid by the B&O and was under the sole supervision of the B&O ticket agent.

On the date of the accident, October 15, 1956, the petitioner handled the mail for the P E train scheduled to depart Mahoningtown at 12:25 a.m. The petitioner loaded 20 to 25 bags of mail on a B&O wagon at the B&O station. He crossed the B&O and P E tracks to the P E platform and, when the P E train pulled up, brought the wagon alongside the mail car door. On this occasion, in spite of the efforts of the petitioner and the P E baggageman, one Beck, the sliding door on the P E car would not open more than 18 or 20 inches. According to the petitioner, Beck commented that he had reported the defective door to the P E which had yet to fix it and that they would have to get the mail on and off as best they could. The petitioner standing on the wagon, had no difficulty throwing the smaller bags in the restricted opening. The larger ones, however, weighing from 80 to 100 pounds, required the petitioner 'to twist around,' and 'to keep pushing and forcing them' to get them in the opening. In the process of this unusual exertion, the petitioner felt something snap in his back. He reported the injury immediately to the B&O ticket agent. Treatment of the injury eventually required the removal of a ruptured intervertebral disc and resulted in the petitioner's permanent disability. On the basis of this evidence, the jury found for the petitioner.

Before considering the merits of the decision below, the petitioner raises a procedural point, claiming that he was denied a rehearing en banc in the Third Circuit Court of Appeals in violation of his rights under 28 U.S.C. § 46(c). At the time the petitioner filed his motion for rehearing en banc there were eight active judges serving on the Third Circuit. Four judges voted to grant the rehearing, two voted to deny, and two abstained. The rehearing was denied. The petitioner claims that to grant a rehearing en banc, the statute requires only a majority of those present. The Third Circuit requires an absolute majority of the active members of the court. Section 46(c) provides:

'Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.'

The Court had occasion to consider this section at length in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986. It there said:

'In our view, § 46(c) is not addressed to litigants. It is addressed to the Court of Appeals. It is a grant of power. It vests in the court the power to order hearings en banc. It goes no further. It neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc. The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.' 345 U.S., at 250, 73 S.Ct., at 658.

The Court went on to say that the rights of the litigant go no further than the right to know the administrative machinery that will be followed and the right to suggest that the en banc procedure be set in motion in his case. The practice of the Third Circuit has been fully revealed by Judge Maris in Hearing And Rehearing Cases In Banc, 14 F.R.D. 91, which was referred to with approval by this Court in United States v. American-Foreign S.S. Corp., 363 U.S. 685, 688, n. 5, 80 S.Ct. 1336, 1338, 4 L.Ed.2d 1491. Although every petition for rehearing is submitted to every member of the court, a judge is not required to enter a formal vote on the petition. Such a procedure is clearly within the scope of the court's discretion as we spoke of it in Western Pacific. For this Court to hold otherwise would involve it unnecessarily in the internal administration of the Courts of Appeals.

Turning to the merits, there can be no question that the petitioner is an employee of the B&O as required by § 1 of the F.E.L.A. Although the B&O suggests that the petitioner may have been the employee of the P E within the meaning of the common law loaned-servant doctrine, Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Linstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 32—34, 48 S.Ct. 241, 242—243, 72 L.Ed. 453, there is no evidence in the record to support such a conclusion. In describing the loaned-servant doctrine, the Court in Anderson stated that when the nominal employer furnishes a third party 'with men to do the work, and places them under his exclusive control in the performance of it, (then) those men become pro hac vice the servants of him to whom they are furnished.' 212 U.S. at 221, 29 S.Ct. at 254. The Court concluded that under the common law loaned-servant doctrine immediate control and supervision is critical in determining for whom the servants are performing services. In the present case, the undisputed facts show that the petitioner was at all times paid by the B&O and under the sole supervision of B&O employees.¹ The intimations of the B&O that the petitioner might have been given directions by the P E baggageman is at most an example of the minimum cooperation necessary to carry out a coordinated undertaking, and, as noted in Anderson, cannot amount to control or supervision. 212 U.S., at 226, 29 S.Ct., at 256. The whole tenor of the services the B&O provides for the P E speaks of an agreement by the B&O to manage and operate the P E station at Mahoningtown. On such evidence, the petitioner is clearly an employee of the B&O even under the common law loaned-servant doctrine, and we therefore need not consider the extent to which that doctrine applies to cases under the F.E.L.A. See Linstead v. Chesapeake & Ohio R. Co., supra; compare Sinkler v. Missouri Pac. R. Co., 356 U.S. 326, 329—330, 78 S.Ct. 758, 761—762, 2 L.Ed.2d 799.

The only remaining issue is the negligence, if any, of the respondent B&O. The trial judge instructed the jury that

'* * * a railroad is under a duty to exercise ordinary prudence, caution and care to inspect and to furnish its employees with cars on which they work equipped with reasonably safe doors, even though the cars are owned by another railroad. A failure of the B&O Railroad to do so is negligence, providing that the railroad can foresee that one of its employees may be injured in performing his work in connection with that car and its equipment which are not reasonably safe.'

No exception was taken to this charge. In his opinion denying the B&O's motion for judgment n.o.v., the trial judge relied on a series of court of appeals decisions standing for the more broad proposition that a railroad has the nondelegable duty to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control. See Kooker v. Pittsburgh & Lake Erie R. Co., 6 Cir., 258 F.2d 876; Chicago Great Western R. Co. v. Casura, 8 Cir., 234 F.2d 441; Beattie v. Elgin, J. & E.R. Co., 7 Cir., 217 F.2d 863. These decisions are in accord with the opinions of this Court in Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Harris v. Pennsylvania R. Co., 361 U.S. 15, 80 S.Ct. 22, 4 L.Ed.2d 1, reversing 168 Ohio St. 582, 156 N.E.2d 822. The present case has been argued to us on the basis of these same decisions and the safe-place-to-work doctrine. The respondent admits the general statements of the doctrine in these cases. It bases its defense solely on the proposition that because the P E train had just pulled into the station, the B&O did not have sufficient opportunity to obtain actual or constructice notice of the defective mail...