Terminal R. Ass'n of St. Louis v. Fitzjohn

• Decision Date: 17 February 1948
• Docket Number: No. 13580.,13580.
• Citation: 1 ALR 2d 290,165 F.2d 473
• Parties: TERMINAL R. ASS'N OF ST. LOUIS v. FITZJOHN.
• Court: U.S. Court of Appeals — Eighth Circuit

1 ALR 2d 290, 165 F.2d 473 (1948)

TERMINAL R. ASS'N OF ST. LOUIS v. FITZJOHN.

No. 13580.

Circuit Court of Appeals, Eighth Circuit.

January 7, 1948.

As Modified on Denial of Rehearing February 17, 1948.

Arnot L. Sheppard, of St. Louis, Mo. (George P. Mueller, of St. Louis, Mo., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Joseph B. McGlynn, of E. St. Louis, Ill., on the brief), for appellee.

Before SANBORN, WOODROUGH, and COLLET, Circuit Judges.

COLLET, Circuit Judge.

In an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the plaintiff recovered a judgment for personal injuries. From that judgment this appeal is prosecuted. The parties will be referred to as they were designated in the trial court.

Plaintiff was seriously injured on the night of June 10, 1943, while he was in the performance of his duties as foreman of a switch crew engaged in switching railroad cars at the Ordnance Plant operated by the United States Government near St. Louis, Missouri. The accident occurred about 9:20 P.M. The switch engine had coupled to a string of fourteen cars standing on a sidetrack which was parallel and adjacent to a loading ramp preparatory to pulling the cars away from the ramp. The side of the ramp next to the track upon which the cars were standing consisted of a concrete wall. In this wall had been placed several iron pipes or standards on the top of which electric lights were mounted. These standards were only about six inches from the side of a box car standing on or moving along the adjacent track. It is conceded by all that the clearance between the side of a box car on this track and these standards was wholly inadequate to permit a person riding on the side ladder of the box car to pass the standards without being knocked off or crushed between the side of the car and one of the standards. On the night of the accident plaintiff had walked along the top of the ramp from the engine to the end of the string of cars to see that no one was in the cars before they were moved. He then gave the signal with his lantern for the engine to pull the cars out and immediately started to climb up the side ladder near the end of the last car from the engine to get on top to supervise from there the remainder of the movement. He had nearly reached the top of the car when he was knocked off by one of the standards and, as stated, severely injured. The negligence charged was failure on the part of defendant to exercise reasonable care to furnish plaintiff a reasonably safe place in which to work. The defenses relied on at the trial and here are that plaintiff was a "lent servant" to the United States at the time of his injury, working upon premises owned and controlled by the United States and hence defendant owed him no obligation concerning the safety of the premises in question. It was and is further contended that plaintiff's injuries resulted entirely from his own negligence.

On the question of whether plaintiff was the servant of defendant or the United States at the time of his injury the facts are substantially undisputed. It appears from the record that the defendant operates two main line tracks north and south between the "Warehouse" portion of the Ordnance Plant on the west of the tracks and the Motor Pool section of the Ordnance Plant on the east. Both sections of the Plant were enclosed by fences. Several switch tracks had been constructed and were being maintained by the Government within the plant. These switch tracks were owned by the Government, as was everything else in the plant including the ramp mentioned above. The switches were connected with the defendant's main line tracks and it was impossible to move cars from the Warehouse Section to the Motor Pool or vice versa without passing over the defendant's main line tracks. From about the time of the establishment of the plant until April 5, 1943, defendant had been sending an engine and switch crew from its Carrie Avenue Yard into the plant to do all the necessary switching. There was no charge made for the original placing of cars or taking loaded cars out, but for each additional movement of cars within the Plant a charge of $3.47 was made. This arrangement was not satisfactory to the plant officials since it frequently occurred that the defendant's engine and crew would not be in the plant when needed and much time would be lost in waiting for it to come from defendant's yard. In addition to the inconvenience, the expense of $3.47 for each movement within the yard was considered undesirable. The Commanding Officer and the Transportation Officer of the plant worked out an arrangement with defendant and the Railroad Brotherhoods for both inter and intra plant switching by which the Government furnished a light switch engine which remained in the plant available at all times for switching in the plant and the movement of empty and loaded cars to and from the plant and defendant's yards. The defendant furnished the crew to man the engine. This crew was carried on the defendant's pay roll and paid by it. The members of the crew belonged to the Brotherhood which had the usual union contract with the defendant. By that contract no one other than an employee of the defendant could operate equipment on defendant's tracks. The switch crew reported for work at the plant each day the plant operated. At the beginning of each day's work the crew got instructions from the plant officials as to what cars were to be moved. During the day frequently plant employees directed the crew to move cars from one place to another in the plant. When it was necessary to go from one section of the plant to the other, necessitating the use of the defendant's main line tracks the crew was required to get permission from the defendant's yard before using the main line tracks. A telephone was installed in the plant connected with the defendant's yard office for that purpose. On Sundays and other days when the plant was not in operation the members of the switch crew were required to report to work at the defendant's yard for assignment to other work by defendant. If they did not report for work or ask for a "lay off" they were treated as discharged. When the arrangement by which the Government furnished the switch engine was put into effect on April 5, 1943, defendant "posted" that job on its bulletin board. That "posting" amounted to a notice to its employees that this job or assignment was open to be "bid in" or chosen by the employees requesting it who had the highest seniority. Plaintiff was one of the successful bidders for a place on the switch crew. It was generally understood that all employees who might be assigned to this job would have all their rights and benefits as employees of defendant preserved. The switch crew were subject to the rules and working conditions applicable to defendant's other employees. At the end of each day each member of the crew turned in his time to a clerk at the plant. The plant then turned the crew's time cards in to the defendant and, as heretofore stated, defendant paid the crew in the same manner as they had been paid prior to April 5, 1943. At regular intervals the Government paid defendant the amount of wages defendant had paid the crew plus 3% thereof to cover Railroad Unemployment Insurance, 3¼% for Carriers Taxing Act charges (pension) and 10% for accounting. The defendant admitted in its answer that plaintiff was in its general employment but asserted that he was in the special service of the United States and under the "lent servant" doctrine was not a servant of defendant at the time of his injury. The testimony of plaintiff that at no time was he ever advised that there had been any change in the nature of his employment by defendant from that which existed prior to April 5, 1943, and that he had never agreed to any such change, was not disputed. There was testimony by defendant's General Superintendent, likewise undisputed, that during the preliminary discussion preceding the arrangement of April 5th, the plant officials stated that they must have complete authority over the switching crew. There is no intimation in the record that plaintiff knew anything about that other than such inferences as he may have drawn from the actual practice followed in the giving of daily instructions by plant officials in carrying out the switching work in the plant.

On the foregoing state of facts the Trial Court instructed the jury that plaintiff was an employee of defendant within the meaning of that term as used in the Federal Employers' Liability Act. We find no error therein. The simple analysis of the arrangement under which defendant was operating at the time of plaintiff's injury is that the plant officials furnished the switch engine and paid the wages of the switch crew in lieu of paying the $3.47 charge for car movements and in order to obtain the advantage of constant availability of the crew. The conduct of the plant officials in directing the crew was the conduct which would necessarily be followed in any industry requiring switching by any railroad. For in no other way could the railroad's employees know what cars to move or where to move them. The switching of the cars by defendant's switch crew within the plant was preparatory to the line haul of the loaded cars by the defendant and connecting carriers. We think the variation from the usual practice of this work being done with defendant's own motive power, resorted to in this instance for the convenience of the government, did not, so far as plaintiff was concerned, make the work of doing the switching any less the work of the defendant than it was before the arrangement was made. Under the rule laid down in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, cited by both plaintiff and defendant, and other authorities cited, particularly the case of Marion Steam Shovel Co. v. Bertino, 8 Cir.,...