Pennsylvania R. Co. v. Barlion, 10695.
| Decision Date | 08 February 1949 |
| Docket Number | No. 10695.,10695. |
| Citation | 172 F.2d 710 |
| Parties | PENNSYLVANIA R. CO. v. BARLION. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James C. Davis, of Cleveland, Ohio (James C. Davis and John J. Adams, Jr., both of Cleveland, Ohio, on the brief; Squire, Sanders & Dempsey, of Cleveland, Ohio, of counsel), for appellant.
Craig Spangenberg, of Cleveland, Ohio (Craig Spangenberg and Marvin C. Harrison, both of Cleveland, Ohio, on the brief; Harrison, Thomas, Spangenberg & Hull, of Cleveland, Ohio, of counsel), for appellee.
Before ALLEN, McALLISTER, and MILLER, Circuit Judges.
On May 31, 1946, appellee Barlion was injured while engaged in loading and blocking operations of railroad cars in the freight storage yard of the Pennsylvania Railroad Company at Crestline, Ohio. The storage yard had been built and placed in operation by the railroad company pursuant to a contract with the United States Government. The yard consisted of numerous parallel side tracks connected by a direct track to the main line of the railroad company, and was used for open-air storage of carload freight.
Appellee had been working in a gondola car, which, with several others, was being switched in the yard. The cars had been shoved along the tracks by a "bulldozer." They then ran by gravity for a distance and collided with other standing cars, when a defective hand-brake failed to work. On the impact, the load in the gondola car shifted and crushed appellee's thigh.
At the time of the accident, appellee was working for Art Schreck, Inc., a contractor, employed by the railroad to unload cars, to stencil, mark, and store inbound shipments, to re-mark and reload outbound shipments, as required by the Government, and to do other incidental work required by the railroad.1 The contract between the railroad and Government provided for the shipment of war materiel consigned to the freight agent of the Pennsylvania Railroad Company at the storage yard. The railroad company, as consignee, was to unload and store the freight in carload lots. On later order, it was to reload and reship the freight to a final destination.
Barlion sued the railroad, claiming that he was its employee and thereby entitled to the benefits of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The railroad contended that appellee was an employee of Art Schreck, Inc.; that the latter was an independent contractor; and that, accordingly, there was no liability on the part of the railroad for appellee's injuries.
The district court held as a matter of law that appellee was an employee of the railroad. The case was tried before a jury, which returned a verdict in favor of appellee, upon which judgment was entered. The issue before us is whether appellee was an employee of the railroad company or an employee of Art Schreck, Inc., an independent contractor.
We are of the opinion that decision in this case is controlled by our holding in Pennsylvania R. Co. v. Roth, 163 F.2d 161. In that case, appellee Roth suffered personal injuries from the negligence of the railroad in the same storage yards in which appellee in the instant case was injured. The yards were being provided by the railroad for the United States Government. At the time of the accident, Roth was working for a company which was employed by the railroad to do the same work that Art Schreck, Inc. was employed to do in this case. The contract provisions concerning the work to be done were identical in the two cases. There were, of course, some differences in the facts. In the Roth case, the railroad paid the contracting company on a cost-plus-fixed-fee basis, based on monthly statements submitted to and certified by the division engineer of the railroad company. In the instant case, Art Schreck, Inc. was paid for its services in lump sum payments. In the Roth case, a car inspector who was an employee of the railroad was present during the loading of a crane on a flat car, and showed the workmen who were loading it a diagram displaying how the loading would have to be effected to comply with the loading requirements of the Association of American Railroads. He also made suggestions from time to time as to how the crane should be fastened, and eventually declared it to be secure. In the instant case, among other circumstances...
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