Moore v. Chesapeake & O. Ry. Co.

• Decision Date: 15 July 1980
• Docket Number: Civ. A. No. 77-3056.
• Citation: 493 F. Supp. 1252
• Parties: Sandra G. MOORE, Plaintiff, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Third-Party Defendant.
• Court: U.S. District Court — Southern District of West Virginia

493 F. Supp. 1252

Sandra G. MOORE, Plaintiff, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. ROLLYSON'S CATERING SERVICE, INC., a corporation, Third-Party Defendant.

Civ. A. No. 77-3056.

United States District Court, S. D. West Virginia, Huntington Division.

July 15, 1980.

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Donald L. Rudquist, Minneapolis, Minn., Lawrence J. Lewis, Huntington, W. Va., for plaintiff.

Fred Adkins, Huntington, W. Va., for defendant and third-party plaintiff.

Norman K. Fenstermaker, Huntington, W. Va., for third-party defendant.

MEMORANDUM OPINION

STAKER, District Judge.

Plaintiff, Sandra G. Moore, filed her complaint against defendant, The Chesapeake and Ohio Railroad Company (C&O), under Title 45 U.S.C. § 51, et seq. (FELA), alleging that on January 19, 1977, while she was a C&O employee and was acting in furtherance of C&O's business of interstate commerce and transportation, she was injured as the result of the negligence of C&O in failing to provide her with a safe place to work and failing to adopt safe customs and practices and "other acts of negligence," all of which C&O and Rollyson, the third-party defendant hereafter named, denied in their answers to the complaint, except C&O admitted that plaintiff was in its employ at the time of the alleged injuries.

C&O in turn filed its third-party complaint against Rollyson's Catering Service, Inc. (Rollyson), and attached thereto, as "Exhibit C," an agreement between C&O and Rollyson dated August 20, 1974 (Agreement), and therein alleged that plaintiff's complaint alleged a claim against C&O for injuries sustained by her while she was preparing to have lunch in a cafeteria operated by Rollyson under that Agreement at which time Rollyson was in exclusive control thereof; that such injuries were caused solely by Rollyson's negligence; that pursuant to paragraph 17 of the Agreement, C&O gave Rollyson written notice of plaintiff's action herein against C&O and tendered defense thereof to Rollyson (the receipt of that notice having been admitted by Rollyson in its answer to the third-party complaint); that under the terms of paragraph 16 of the Agreement Rollyson agreed to indemnify C&O from any liability, claim, etc., for injury to persons arising out of or incident to the use of the cafeteria; and that if C&O should be compelled to pay damages to plaintiff herein, then under the terms of the Agreement C&O was entitled to recover over against Rollyson the amount thereof as well as C&O's expenses in defending the same, including reasonable attorney fees.

In its answer to the third-party complaint, Rollyson substantially denied the allegations thereof, except for admitting the receipt of the aforesaid notice from C&O, and asserted therein that the indemnification provisions of the Agreement did not apply to require Rollyson to indemnify C&O for any damages recovered by plaintiff against C&O.

Trial of the action had in this court March 10-13, 1980, resulted in a jury verdict in plaintiff's favor and against C&O for $150,000. In addition to that verdict, the jury rendered answers in writing to certain written questions propounded to it by the court, more about which below.

Following trial, each of C&O and Rollyson filed their separate motions for judgment notwithstanding the verdict, or in the alternative, for a new trial, and C&O also filed its motion for judgment against Rollyson.

It is the issues raised by these three motions which are addressed and disposed of herein.

The Evidence

A brief resume of pertinent portions of the evidence presented at the trial is essential to a discussion and treatment of the motions:

The evidence showed that on the date of her injuries, plaintiff was employed by C&O in a clerical position at an office in C&O's office building in Huntington, West Virginia, which also housed the cafeteria then being operated by Rollyson pursuant to the Agreement; that during her lunch hour on that date plaintiff went to the cafeteria to have her lunch, and while there stepped on a "pat" of butter on the cafeteria floor and slid and injured her back; that C&O did not require plaintiff nor any of its employees to have lunch at that cafeteria, and they patronized it at their option, plaintiff often having her lunch at various restaurants located off C&O's premises, though patronizing the cafeteria and thereby avoiding leaving the building to eat was, particularly in inclement weather, convenient for plaintiff and other of C&O's employees who worked in the building and the vicinity thereof; and that the cafeteria was intended to, and the Agreement provided that it would, admit and serve only C&O's employees and their guests, though on very infrequent occasions persons who were not C&O's employees nor their guest may have visited C&O's office building on business and patronized the cafeteria.

The evidence bearing upon the relationship between C&O and Rollyson was not conflicting. In the main it consisted of the written Agreement, which both Rollyson and C&O agreed contained the terms of their contract, obligations, etc., and testimony relating to the manner of Rollyson's performance thereunder.

Rollyson's and C&O's Motions for Judgment Notwithstanding the Verdict, and in the Alternative, for a New Trial

Various grounds and points of error are assigned in support of these two motions, many of which are common to each. For the reasons following, each of the motions is overruled:

Both prior to and during trial, Rollyson and C&O have conceded that the provisions of 45 U.S.C. § 51 create liability on the part of a carrier such as C&O for injury to its employee caused by the negligence of such carrier's "agent," but have contended, and reiterate in their motions, in substance, that as a matter of law, in Rollyson's operation of the cafeteria under the Agreement with C&O, Rollyson was acting as an independent contractor of C&O, was performing a non-operational or non-regular function or activity for C&O, and was not acting as C&O's agent, by reason of which Rollyson's negligence, if any, was not imputable to C&O under the so called "operational activity" doctrine enunciated in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958), and its progeny and related cases.

In Sinkler, the petitioner brought action under FELA for injuries sustained while employed as a cook on the private car furnished by respondent railroad to its general manager when that car struck another while being switched by the Belt Railway, a carrier theretofore organized by respondent's predecessor and other railroads to perform their switching operations under contract at a terminal used by all of them. Respondent contended that the Belt Railway was an independent contractor, was not its agent, and that the provisions of 45 U.S.C. § 51 thus did not apply to subject respondent to liability. The Court held the Belt Railway to be a constructive agent of the respondent railroad notwithstanding its independent contractor status. In so doing, it pointed out the broad purpose of FELA to be the promotion of the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden; that an accommodating scope must be given to the word "agents" to give vitality to the standard governing the liability of carriers to their workers injured on the job; that it was manifest that the Belt Railway's freedom from detailed supervision of its operations by respondent was irrelevant inasmuch as the switching crew of the Belt Railway at the moment of the collision in the station was engaged in furthering the operational activities of respondent; and laid down the rule that when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are "agents" of the employer within the meaning of 45 U.S.C. § 51.

The Court in Sinkler thus spoke not only of "performing operational activities" but also of "furthering operational activities" by one, under contract, for a railroad.

In Smith v. Norfolk & Western Ry. Co., 407 F.2d 501 (4th Cir. 1969), the court recognized that Sinkler merely engrafted upon the law of agency the "operational activity" doctrine, which is uniquely applicable to FELA actions, and as a matter of law operates such that one who performs, under contract with a carrier, an operational activity of that carrier becomes the carrier's constructive agent, and thus its agent within the provisions of 45 U.S.C. § 51, regardless of whether such one is or is not, as a matter of fact and law, an independent contractor as to that carrier; but that in thus engrafting the same thereon, the court in Sinkler left otherwise undisturbed and viable the traditional agency tests which remain alternatively and equally as applicable to the facts of FELA actions for the purpose of determining whether one performing activities for a carrier is an actual, as distinct from a constructive, agent of such carrier within the provisions of FELA.¹

Thus, (1) if Rollyson was performing or furthering an operational activity for C&O by operating the cafeteria under the terms of the Agreement, then under the "operational activity" doctrine of Sinkler Rollyson was the constructive agent of C&O in so doing and Rollyson's negligence was imputable to C&O notwithstanding that Rollyson also may have been an independent contractor as to C&O under the Agreement in so doing, and (2) if Rollyson was not performing or furthering an operational activity for C&O in so doing, then (a) if Rollyson was an independent contractor of C&O under the law and the facts, Rollyson's negligence was not imputable to C&O, but (b) conversely, if Rollyson was an actual agent of C&O, as determined by the...