Turpin v. Chicago, B. & Q. R. Co.

• Decision Date: 10 January 1966
• Docket Number: No. 51026,51026
• Citation: 403 S.W.2d 233
• Court: Missouri Supreme Court
• Parties: Everett L. TURPIN, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent.

Page 233

403 S.W.2d 233

Everett L. TURPIN, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent.

No. 51026.

Supreme Court of Missouri, En Banc.

Jan. 10, 1966.

Rehearing Denied Feb. 14, 1966.

Certiorari Denied June 20, 1966. See 86 S.Ct. 1925.

Dwight Roberts, Homer R. Hines, Kansas City, for plaintiff-appellant.

Clyde J. Linde, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for respondent.

EAGER, Judge.

This is a suit under the Federal Employers' Liability Act for personal injuries, filed by one claiming to be an employee of the Chicago, Burlington & Quincy Railroad Company. The jury found for plaintiff and awarded him $30,000. The trial court entered judgment for defendant pursuant to an after-trial motion on the ground that the evidence was insufficient to establish the fact that plaintiff was an employee of defendant; in the alternative it granted a new trial for error in giving Instructions 2 and 3 offered by plaintiff. Plaintiff appealed in due course. After the adoption of an opinion in Division One of this Court, the cause was transferred to the Court in Banc on the Court's own motion.

As already indicated, the issue here is whether or not plaintiff was an employee of the defendant at the time of his injury. We shall therefore direct our recital of the facts to that issue. The submissibility of the issue of negligence is not in question now. The plaintiff, approximately 42 years old at the time of his injury on March 11, 1961, had been a truck driver for Burlington Truck Lines, Inc., since August, 1957; as such, he belonged to the Teamsters' Union. Burlington Truck Lines, Inc., was incorporated in June, 1945; it acquired by purchase the assets and routes of a predecessor corporation, Burlington Transportation Company (organized in 1935) in so far as the transportation of freight was concerned, but did not take over its passenger or bus business. We shall often refer to it as 'Truck Lines,' but in the singular form. It acquired an ICC permit, and has since operated as a common carrier of freight, with approximately 9,000 miles of certificated routes in various midwestern and western states, serving the public generally, as does any other common carrier. At the time of plaintiff's injury it was operating approximately 2,100 pieces of equipment, including tractors, trailers and trucks, and it had approximately 1,500 employees. Its general office is in Galesburg, Illinois; the defendant Railroad owns all of its stock, but the Truck Lines operates as a wholly separate entity, with its own bank accounts, paying all its own taxes and expenses, hiring and firing its own employees, and keeping all its financial affairs separate from those of the defendant. Some members of its Board of Directors are officers of the Railroad. It rents terminal space at certain points, including Kansas City, in the freight houses or terminals of the Railroad, and it pays the Railroad a flat annual fee for furnishing claim and medical services and, to some extent, legal services. The Truck Lines negotiates its own labor contracts; it maintains approximately seven employees in its Kansas City Terminal office, including a dispatcher, and about 47 truck drivers and dockmen work for it out of that terminal.

We shall generally refer to the defendant as the 'Railroad.' It is a common carrier by rail operating over many of the midwestern and western states. About 1958 the so-called 'piggy-back' hauling of highway trailers, loaded and unloaded, on railway flatcars began to develop as an important element in the railroad business. The Railroad owns a rather large terminal and freight house in Kansas City, and others elsewhere. It owns some highway trailers, but no tractors or motive equipment. By an exchange of letters, recognized by the parties as a contract, it agreed with Burlington Truck Lines that it would pay to the latter a unit cost of $10.05 for the loading or unloading of each loaded trailer, which figure included the Truck Lines' then estimated cost, plus ten percent; this unit payment was later reduced somewhat in varying amounts, but after plaintiff's injury. The Truck Lines was paid at an hourly rate for handling by truck less than carload lots of the railroad freight either to or from the terminal; in other words, the Truck Lines was paid at specific rates for all services it performed for the Railroad. It acquired and maintained special tractors with hydraulic fifth wheels and other special equipment for use in the loading and unloading of trailers on the railroad cars.

At a time several years before plaintiff's injury defendant had constructed ramps on two adjoining tracks in its yards so that flatcars could be backed into position and trailers loaded on the cars by running them up to ramps. The details of these ramps are not well shown in our record. Between these two tracks defendant also constructed a 'catwalk,' elevated some 39 inches above the ties, 23 inches wide, and leaving a space of approximately 21 inches between the edge of the walk and the edge of the flatcar. (Plaintiff said it was somewhat more.) An exhibit in evidence shows that it was 54 inches from the top of the ties to the floor of a flatcar; some cars of a series on which plaintiff said he was working were approximately 12--14 inches higher. The railroad cars with special equipment for accommodating trailers were sometimes called 'piggy-back' cars. When a loaded trailer was placed on a car the tractor was disconnected and, in lieu of the support of the tractor, the front end of the trailer was placed on a 'stand' or 'stanchion' (constructed as a part of the car) which could be lowered and raised, to which it was firmly fixed. The rear wheels of the trailer were then secured by chains which were run through the wheels or over the wheels and locked to the side rail or bottom of the car. The work on the chains was supposedly performed from the 'catwalk' so far as possible, but plaintiff testified that it was often necessary for him to squat on the edge of the car in order to fasten or unfasten the chains and that he was doing so when injured. The loading and unloading of the trailers required a two-man crew. When the Railroad had trailers to be unloaded or loaded it notified the Truck Lines by a teletype maintained by the latter.

March 11, 1961, was Saturday; plaintiff and one other man (White) were the only ones on duty at the Truck Terminal, except possibly the dispatcher or foreman; for the first four hours plaintiff worked around the terminal or made deliveries with a truck. After lunch he and White received a teletype message that there were trailers to be unloaded, and they proceeded to the 'piggy-back' ramp, presumably to unload cars on a certain track. White drove the tractor; plaintiff handled the 'running down' of the stands and the removal of the chains. While engaged in removing a chain which he said had become lodged between dual wheels, standing or squatting on the side of the car, and reaching in between the wheels or over or through a wheel (it is not entirely clear), he fell backwards, struck the edge of the catwalk and thence fell to the ground. White went on and finished the job with such assistance as plaintiff could give. When they quit plaintiff reported his injury to the Truck Lines' official then in the office. Plaintiff's injuries are not in issue here, but we note that he returned to work in May, 1961, thereafter was off for periods of two weeks and one week, and has lost very little time since. He worked on the same job for about a year and a half and then 'bid in' the job of driving a truck and handling freight solely for Montogomery Ward. He drew Workmen's Compensation as an employee of Truck Lines for 14--15 weeks after his injury until his counsel asked that the claim be 'suspended'; thus, he never received a final disability rating. The negligence claimed was that the catwalk, constructed by defendant, was too low and too far from the sides of the cars, requiring plaintiff to stand on the edges of the cars instead of working from the catwalk. Plaintiff had worked at this 'piggy-back' job 'on and off' for about three years, but not regularly.

Since the question of employment is our sole issue, it will be necessary to relate in some detail the testimony which plaintiff adduced in his attempt to show such control or right of control by the defendant of the 'piggy-back' operations as would make him its employee. We shall first relate the substance of the testimony and rule upon its effect later. In so doing, we combine the substance of the testimony of plaintiff and of certain of his witnesses, Truck Lines employees, as follows. At times railroad car inspectors would come around and examine the cars, loaded or unloaded; while plaintiff said at one point that these men gave 'instructions,' he explained on cross-examination that what he meant was that the Inspectors told them if a car was 'bad ordered' and could not be loaded or moved. Switch crews of the Railroad frequently came around and checked the loaded cars to see if the trailers were securely chained down, if the 'stand' under the front end of the trailer was secured and locked, and if all 'bridges' between cars had been raised and secured; the bridges were metal plates which were drawn between cars to permit the passage of tractors and trailers. If any of these things needed correction, the switch crews so told the men on the job, and they did not move the cars into a train until the necessary correction was made. On several occasions the repair track foreman (referred to as 'rip' track foreman) came around to complain that the Truck Lines men had been using heavy hammers to loosen the pins which locked the 'stand' in place and that they were putting 'burrs' on the ends which made it difficult to use the pins again. The 'stand' was a built-in part of the railroad car, and any damage to a car was normally referred to the...