One who is not an employee of an interstate carrier, but an
independent contractor, cannot recover, nor can his representative,
under the Employers' Liability Act, even if killed or injured while
engaged in services in interstate commerce.
Although a certain direction or information may be given by the
carrier to one contracting with it, if, as in this case, the
contract is not the engagement of a servant submitting to
subordination and subject momentarily to superintendence, but of
one capable of independent action to be judged by its results, and
the person so contracting controls the manner of the work done by
himself and those employed by him, he is a contractor with, and not
an employ of, the carrier within the meaning of the Employers'
A contract to shovel coal on a per ton basis, and with
provisions assuming all risk and liability for injury to, or for
death of, himself and persons employed by him, between an
interstate carrier and an independent employer of labor who had
other contracts for work with the same carrier and with other
not to be an evasion of the provision of §
5 of the Employers' Liability Act, that any contract or device for
exemption of the carrier's liability under the act shall be
The facts, which involve the application and construction of the
Federal Employers' Liability Act and the validity of a judgment in
an action thereunder, are stated in the opinion.
Page 240 U. S. 450
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action for damages caused by the railway company by the killing
of the deceased, William L. Turner, through the negligence, it is
alleged, of the company. It was brought in the District Court of
Garfield County, Oklahoma, and invoked the benefits of the
Employers' Liability Act of Congress of April 22, 1908 (35 Stat.
65, c. 149), as amended April 5, 1910 (36 Stat. 291, c. 143). The
case was removed on petition of the railway company to the United
States District Court for the Western District of Oklahoma, and
remanded by that court to the state court. There, an amended
petition was filed by plaintiff in the action, to which an answer
After answer, the case was tried to a jury, which returned a
verdict for the sum of $7,583, distributed in certain proportions
among those dependent upon the deceased. Judgment was entered upon
the verdict and sustained by the supreme court of the state.
The case went to the jury upon the effect of certain contracts
between deceased and the company, whether he was the company's
servant or a contractor with it, and whether, if he was the servant
of the company, it was guilty of negligence, or whether he was
guilty of contributory negligence.
The facts are not much in dispute. The company is an interstate
common carrier, and its line runs through the limits of the city of
Enid, Garfield County, State of Oklahoma. Within the city there are
six parallel tracks which run nearly from the north to the south,
bearing as they proceed a little to the west. At the south end,
near their termination, are located coal chutes, into the pockets
or tipples of which coal is shoveled from cars set on the chutes
for the use of all engines, local and interstate. The City of Enid
has the power to establish and
Page 240 U. S. 451
did establish by ordinance a speed limit of ten miles an hour
for all trains within its limits, beyond which it was unlawful to
The relation of Turner to the railroad company was under two
contracts, one dated November 1, 1910, the other October 1, 1911.
In the first contract, the railroad company is party of the first
part and Turner party of the second part, and is called
"contractor." The covenants of one are made the consideration for
the covenants of the other, and Turner, as contractor, agrees
"to furnish all the labor required and necessary to handle, and
(a) to handle all the coal required by the company at Enid, from
either open or closed cars, or both, and to place the same in
coal-chute pockets of the company; to gather up all coal that falls
from the coal-chute pockets to the ground, and place the same on
cars or engines, as desired by the company; (b) to break all coal
to the size of four-inch cubes or less before delivery to chutes
for engine use, and to unload all coal for stationary boilers; (c)
to unload wood from cars to storage piles located on company's
right of way in Enid; (d) to load cinders from the right of way to
cars at points designated by the company; (e) to unload sand from
cars furnished by the company at points designated by it."
2d. The company agrees to pay for the services enumerated in
certain designated numbers of cents per ton, or cord, or yard, as
the case may be, to be paid upon estimates and records of the
3d. Contractor agrees to maintain a sufficient supply of coal in
the coal chutes and break or crack all coal to suitable sizes.
4th. Contractor expressly assumes all liability for injuries to
or death of persons in his employ, or loss or injury to his
property, whether caused by the negligence of the company, its
agents or employees, and he covenants to save the company harmless
on account thereof, or for
Page 240 U. S. 452
or on account of any injury to or death of any person employed
by him when and while such persons may be in or about the cars,
engines, and tracks of the company, "and any injury to said
contractor while performing any services under this contract which
might be or have been delegated to his agent or employees." And the
contractor expressly assumes all liability for injury to or death
of third persons, including the employees of the company,
occasioned by any of his acts, and the company shall not be liable
to him in case of his death or injury while employed in the work
5th. Punctuality of performance is stipulated for; (6th) the
contract to continue until terminated, as it may be by either party
upon fifteen days' notice; (7th) or upon failure of contractor to
perform his duties at the option of the company, without being
liable in damages therefor, of which failure the company shall be
the sole judge; (8th) the company to furnish the necessary tools
for the performance of the stipulated services.
9th. It is
"agreed and understood that the contractor shall be deemed and
held as the original contractor, and the railway company reserves
and holds no control over him in the doing of such work other than
as to the results to be accomplished."
10th. The company shall keep a record of all coal delivered, and
shall make settlements and pay the contractor for handling the coal
upon the basis of such handling, and the contractor shall make
daily reports of the cars unloaded by him, and shall receive,
collect, and deliver to the duly authorized representative of the
company a ticket from each engineman, hostler, or other employee,
showing the number of tons of coal delivered to any engine; (11th)
payment of the work to be made monthly, and (12th) the contract and
all the terms and conditions, rights and obligations thereof, to
inure to the heirs, administrators, executors, legal
Page 240 U. S. 453
assigns, and lessees of both parties, but assigning or
subletting shall not be without the written consent of the
Under the other contract, Turner was required to cooper all cars
which the roundhouse foreman directed him to prepare to fit the
cars to hold grain in transit, the foreman to be the sole judge
whether the preparation was in accordance with the contract. The
manner of preparation is detailed, and the price to be paid
therefor in cents, the company to furnish the materials.
There are provisions as in the other contract to save the
company from liability to persons or property. The contract was to
continue until terminated upon thirty days' notice.
This contract is pertinent only for illustration, and otherwise
may be put out of view. The deceased was killed, it is the
contention, while performing services under the first contract.
Turner had a contract with the Enid Mill & Elevator Company
to unload coal, and, directly after 4 o'clock on the day he was
killed, having finished a particular service at which he and one of
his employees had been engaged, remarked that he would "go down and
gather up the tickets and order a car of coal for the morning," and
started down the tracks toward the chutes.
He next appeared about 5:25 o'clock at the cinder pile of the
Enid Mill & Elevator Company at what is designated as the
"White Mill," and there had a conversation with an employee of that
company, and asked him, the employee, if he thought he would have
enough coal for the boiler room to run until Monday night. While
they were talking, a passenger train signaled its approach to the
station and Turner said, "That is 24; I must take my coal tickets
to the freight house and turn them in and order coal for the
chutes." He then started towards the freight house.
Page 240 U. S. 454
The trial court thought the testimony was indefinite of Turner's
intention, and hesitated to decide that he was engaged in services
to the railway company, rather than to the Enid Mill & Elevator
Company, but finally left it to the jury to decide.
From the "White Mill," Turner passed along the tracks of the
railroad, and was seen by a witness walking between tracks 3 and 4
with his hands behind him, and while so walking, and when he was at
a point east of the north end of the freight house, an engine and
two box cars and a flat car, backing on the track to his left in
the direction in which he was going, and running at about 25 miles
an hour, and in excess of the speed limit prescribed in the
ordinance, ran over and killed him. It is a reasonable conjecture
that the character of the day and the noise and confusion of the
approaching passenger train so distracted his attention that he did
not hear the approach of the backing cars and warning yells of the
brakeman, and apprehended no danger.
Besides excessive speed there were other elements of negligence
by the company which the plaintiff relied upon.
We may pass by the assignments of error based on the rulings
upon the evidence and in giving and refusing instructions. The
determining consideration is the relation in which Turner stood to
the company, whether he was an employee of it or an independent
The trial court submitted the question to the decision of the
jury; the supreme court, considering the contract of November 1,
1910, hereinbefore set out, and certain testimony, decided that
Turner was an employee of the company. The court said:
"Not only did the contract reserve to the company the right to
control and direct deceased in his work, but it might be well to
know, although we are only passing on the face of the contract,
that the company, pursuant to the power therein reserved, did that
very thing, which confirms us in our opinion, gathered
Page 240 U. S. 455
from the face of the contract, that the same was not capable of
execution without such direction and control. Such amounts to a
practical construction of the contract by the company. Mr. Bowman,
station agent and yardmaster of defendant, testified:"
"Q. From whom did Turner get instructions about handling work
performed by him?"
"A. Under his contract from us."
"Q. You directed him what to do?"
"A. Yes, either me or my chief clerk."
"Q. So that he was under your supervision and control all the
"A. Insofar as his contracts were concerned, yes, sir."
"Q. He performed his duties in accordance with what you directed
him to do?"
"A. Yes, sir."
"Q. I will ask you if all this coal he handled for the chutes,
if that was Rock Island coal?"
"A. Yes, sir."
To which testimony this must be added:
"Q. Did you have anything to do with directing him in detail as
to how he performed the terms of his contract?"
"A. No, sir."
We are unable to concur with the learned court in its
conclusion. There was, it is true, and necessarily, a certain
direction to be given by the company, or rather, we should say,
information given to Turner. But the manner of the work was under
his control, to be done by him and those employed by him. He was
responsible for its faithful performance and incurred the penalty
of the instant termination of the contract for nonperformance. This
was only a prudent precaution -- indeed, necessary in view of the
purpose of his contract, which was to make provision for a daily
supply of coal for the operation of the railroad. The power given
was one of control in a sense, but it was not a detailed control of
the actions of Turner or those of
Page 240 U. S. 456
his employees. It was a judgment only over results, and a
necessary sanction of the obligations which he had incurred. It was
not tantamount to the control of an employee and a remedy against
his incompetency or neglect.
The whole instrument shows system and particular care. It is not
the engagement of a servant submitting to subordination and subject
momentarily to superintendence, but of one capable of independent
action, to be judged of by its results. And the covenants were
suitable for the purpose, only consistent with it, not consistent
with a temporary employment. This is manifest from the provision
for payment, from the careful assignment of liabilities, and the
explicit provision that Turner
"shall be deemed and held as the original contractor, and the
railroad company reserves and holds no control over him in the
doing of such work other than as to the results to be
The railroad company therefore did not retain the right to
direct the manner in which the business should be done, as well as
the results to be accomplished, or, in other words, did not retain
control not only of what should be done, but how it should be done.
Singer Mfg. Co. v. Rahn, 132 U. S. 518
Railroad Co. v.
15 Wall. 649, 82 U. S. 656
Standard Oil Co. v. Anderson, 212 U.
, 212 U. S. 227
The case falls therefore under the ruling in Casement v.
Brown, 148 U. S. 615
148 U. S.
We do not think that the contract can be regarded as an evasion
of § 5 of the Employers' Liability Act, which provides
"that any contract, rule, regulation or device whatsoever the
purpose or intent of which shall be to enable any common carrier to
exempt itself from any liability created by this act shall to that
extent be void. . . ."
Turner was something more than a mere shoveler of coal under a
superior's command. He was an independent employer of labor,
conscious of his own power to direct
Page 240 U. S. 457
and willing to assume the responsibility of direction and to be
judged by its results. This is manifest from the contract under
review and from the cooperage contract; it is also manifest from
his contracts with the other companies to whose industries the
railroad company's tracks extended. We certainly cannot say that he
was incompetent to assume such relation and incur its
Thus, being of opinion that Turner was not an employee of the
company, but an independent contractor, it is not material to
consider whether the services in which he was engaged were in
Judgment reversed and case remanded for further proceedings
not inconsistent with this opinion.