Dushon v. United States, 14922.

• Decision Date: 18 June 1957
• Docket Number: No. 14922.,14922.
• Citation: 17 Alaska 245,243 F.2d 451
• Parties: George DUSHON, Harold Rathgeb, Hilton Duke, Peter J. Vallentine, Nels Pilskog, Joe Miszencin, and Thomas J. Golden, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

17 Alaska 245, 243 F.2d 451 (1957)

George DUSHON, Harold Rathgeb, Hilton Duke, Peter J. Vallentine, Nels Pilskog, Joe Miszencin, and Thomas J. Golden, Appellants, v. UNITED STATES of America, Appellee.

No. 14922.

United States Court of Appeals Ninth Circuit.

April 23, 1957.

Rehearing Denied June 18, 1957.

Harold J. Butcher and Geo. Grigsby, Anchorage, Alaska, for appellants.

William T. Plummer, U. S. Atty., Anchorage, Alaska, and Donald A. Burr, Asst. U. S. Atty., for appellee.

Before HEALY, POPE, and HAMLEY, Circuit Judges.

HEALY, Circuit Judge.

Appellants brought this suit under the Federal Tort Claims Act to recover damages for injuries caused by the negligence of one Harold D. Greene, assertedly an employee of the United States. The trial court found that Greene was an employee of an independent contractor and not of the United States, and accordingly denied recovery.¹ The sole question presented on appeal is whether or not this holding is error. We are satisfied that it is not.

Briefly summarized, the background facts are these: The Alaska Railroad, which is a single track road traversing the area between Seward and Fairbanks, Alaska, is an agency of the United States. In 1949 it entered into a contract with three heavy construction contractors,² one of which was the Morrisson-Knudsen Company, Inc., for the rehabilitation of a portion of its railroad tracks south of Anchorage, between the two stations known as Potter and Indian. The terrain necessitated that men, equipment and materials be moved over the Alaska Railroad tracks to the place of work. The right of access to the job was derived from the contract, but in order to obtain such access the contractor had to provide rail motor cars and unpowered track cars, or "man-haul" cars, for utilization of the tracks. Some of these cars were purchased by the joint contractors and some were rented from Morrison-Knudsen Company, which in turn had a previous rental agreement for them with the Alaska Railroad. This latter rental agreement did not pertain to the construction project.

The appellants, who were employees of the contractor, were injured while being transported in man-haul cars propelled by a rail motor car operated by Harold D. Greene, who was also an employee of the contractor. In rounding a curve, where the view was obstructed, the cars collided with a train of the Alaska Railroad. Concededly the collision and resultant injuries were due solely to Greene's negligence.

In permitting the contractor to operate on its tracks, the Alaska Railroad never hired nor sent any motor car operators anywhere for the contractor. However, the latter's employees who were to operate rail motor cars were required by the Railroad to conform to certain of its operating procedures, and the Railroad retained the right to approve any motor car operator selected by the contractor. In order to determine whether the contractor's employees whom the contractor had designated to operate the rail motor cars were qualified to do so, the Railroad required such operators to taken an examination as to the operating rules of the Railroad. Upon approval being given, a certificate of examination was delivered to that person. Such a certificate did not constitute a permit or license for that person to operate on the Railroad's tracks but was merely a means of identifying that such person appeared qualified to operate a rail motor car. In this instance Greene had been issued the requisite certificate after his examination.

Greene had been employed for something like a year by the Morrison-Knudsen Company, and he continued with that concern until taken over by the contractor to operate rail motor cars on the joint project. His salary was paid by the contractor. He was selected for the job by the project manager for the contractor, and all the directions and orders to perform work given to Greene were given by the contractor. There were no orders or other restrictions given to or placed upon Greene by the Alaska Railroad in the use of its track.

The various rules and regulations adopted by the Railroad, above noted, were enforced for the purpose of safeguarding and protecting the Railroad's property and passengers. In the event of an infraction of these rules, Greene was not subject to being penalized or discharged by the Alaska Railroad but was subject only to disqualification as a rail motor car operator for the contractor.

Part of the Railroad's operating procedure was to issue and transmit twice a day to its personnel involved information of contemplated movements taking place upon its tracks, which information was called a "line-up." As a rail motor car operator, Greene, in order to conform to the Railroad's rules and regulations, had to obtain such a "line-up." Safety precautions of the Railroad required that in rounding a curve (such as the one on which the collision occurred) where the view was obstructed, a flagman was required to be sent out to protect against any approaching train and it was the responsibility of the rail motor car operator to see that the track was clear.

The contractor's...