The terms "employee" and "employed" in the Employers' Liability
Act are used in their natural sense, importing the conventional
relation of employer and employee. P.
252 U. S.
479.
Under an agreement for through freight service between two
railroads, each retained control of its own train crews while on
the other's line, subject to regulations, orders, and discipline
imposed by the other for the purpose of coordinating their
movements to its own operations and for insuring safety and
furthering the general object of the agreement, and the acts of
each company's employees while on the line of the other were
performed as part of their duty to their general employer.
Held that an employee of one company did not become an
employee of the other within the meaning of the Employers'
Liability Act, while so operating on the other's line.
Id.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, distinguished.
132 Md. 540 affirmed.
The case is stated in the opinion.
Page 252 U. S. 477
MR. JUSTICE PITNEY delivered the opinion of the Court.
This was an action brought in a state court of Maryland under
the Federal Employers' Liability Act of April 22, 1908, c. 149, 35
Stat. 65, as amended April 5, 1910, c. 143, 36 Stat. 291, by
petitioner, as administratrix of John M. Hull, deceased, to recover
damages because of his death, occurring, as alleged, while he was
employed by defendant in interstate commerce. The trial court
directed a verdict in favor of defendant, the Court of Appeals of
Maryland affirmed the resulting judgment upon the ground that the
deceased, at the time he was killed, was not in the employ of
defendant within the meaning of the act of Congress, 132 Md. 540,
and upon this federal question the case is brought here by
certiorari.
The pertinent facts are not in dispute. John M. Hull at the time
he was killed and for a long time before, was in the general employ
of the Western Maryland Railway Company, an interstate carrier
operating, among other lines, a railway from Hagerstown, Maryland.
to Lurgan, Pennsylvania, at which point it connected with a railway
owned and operated by defendant, the Philadelphia & Reading
Railway Company, which extended from Lurgan to Rutherford, in the
same state. Through freight trains were operated from Hagerstown to
Rutherford over these two lines, and Hull was employed as a
brakeman on such a train at the time he received the fatal
injuries. On the previous day, a crew employed by the Western
Maryland Railway Company, and of which he was a member, had taken a
train hauled by a Western Maryland engine from Hagerstown to
Rutherford, and at the time in question the same crew was returning
with a train from Rutherford
Page 252 U. S. 478
to Hagerstown. Before starting, they received instructions from
the yardmaster at Rutherford (an employee of defendant company) as
to the operation of the train, including directions to pick up
seven cars at Harrisburg. They proceeded from Rutherford to
Harrisburg, stopped there for the purpose of picking up the seven
cars, and, while this was being done, Hull was run over and killed
by one of defendant's locomotives.
The through freight service was conducted under a written
agreement between the two railway companies, which was introduced
in evidence and constitutes the chief reliance of petitioner. Its
provisions, so far as they need to be quoted, are as follows:
"2. Freight trains to run through between Hagerstown and
Rutherford in both directions, and each company agrees to supply
motive power in the above proportions [based upon mileage] so as to
equalize the service performed."
"
* * * *"
"4. Crews of each road to run through with their engines over
the line of the other company."
"5. Each company to compensate the other for the use of the
other's engines and crews on their line at the following rates per
hour: . . . Time to begin at Rutherford and Hagerstown when crew is
called for. . . . Time to cease when the engines arrive on the fire
track at Rutherford and Hagerstown. . . ."
"6. The division of earnings of the traffic not to be disturbed
or in any way affected by this arrangement."
"7. Each company to furnish fuel and other supplies to its own
engines and crews; any furnished by one to the other to be upon
agreed uniform rates."
"
* * * *"
"9. Neither company to be expected to do the engine cleaning and
wiping for the other; where done, a charge of seventy-five (75)
cents per engine to be made. "
Page 252 U. S. 479
"10. Each company to be responsible and bear all damage and
expenses to persons and property caused by all accidents upon its
road."
"
* * * *"
"16. Each company to relieve and turn as promptly as practicable
the engines and crews of the other at ends of runs."
"17. Each company to have the right to object and to enforce
objection to any unsatisfactory employee of the other running upon
its lines."
"18. All cases of violation of rules or other derelictions by
the employees of one company while upon the road of the other shall
be promptly investigated by the owning company, and the result
reported to the employing company, with or without suggestions for
disciplining, the employing company to report to the other the
action taken."
"19. Accident reports on prescribed forms to be promptly made of
all such occurrences, and where a crew of one company is operating
upon the road of the other, a copy must be sent to the proper
officer of each company."
"20. Employes of each company to be required to report promptly,
on notice, to the proper officer of the other, for investigations
of accidents, etc., the fullest cooperation to be given by the one
company to the other in all such matters."
"21. The employees of each company while upon the tracks of the
other shall be subject to and conform to the rules, regulations,
discipline and orders of the owning company."
We hardly need repeat the statement made in
Robinson v.
Baltimore & Ohio R. Co., 237 U. S. 84,
237 U. S. 94, that
in the Employers' Liability Act, Congress used the words "employee"
and "employed" in their natural sense, and intended to describe the
conventional relation of employer and employe. The simple question
is whether, under the
Page 252 U. S. 480
facts as recited and according to the general principles
applicable to the relation, Hull had been transferred from the
employ of the Western Maryland Railway Company to that of defendant
for the purposes of the train movement in which he was engaged when
killed. He was not a party to the agreement between the railway
companies, and is not shown to have had knowledge of it, but,
passing this and assuming the provisions of the agreement can be
availed of by petitioner, it still is plain, we think, from the
whole case that deceased remained for all purposes -- certainly for
the purposes of the act -- an employee of the Western Maryland
Company only. It is clear that each company retained control of its
own train crews, that what the latter did upon the line of the
other road was done as a part of their duty to the general
employer, and that, so far as they were subject while upon the
tracks of the other company to its rules, regulations, discipline,
and orders, this was for the purpose of coordinating their
movements to the other operations of the owning company, securing
the safety of all concerned, and furthering the general object of
the agreement between the companies.
See Standard Oil Co. v.
Anderson, 212 U. S. 215,
212 U. S.
226.
North Carolina R. Co. v. Zachary, 232 U.
S. 248, is cited, but is not in point, since in that
case the relation of the parties was controlled by a dominant rule
of local law, to which the agreement here operative has no
analogy.
The Court of Appeals of Maryland did not err in its disposition
of the federal question, and hence its judgment is
Affirmed.
MR. JUSTICE CLARKE, dissenting.
The Western Maryland Railroad Company owned a line of railroad
extending from Hagerstown, Maryland, to Lurgan, where it connected
with the line of the Reading
Page 252 U. S. 481
Company, extending to Rutherford, in Pennsylvania. The two
companies entered into a contract by which through freight trains,
made up and manned by crews primarily employed by either, should
run through over the rails of the other company to Rutherford or
Hagerstown, as the case might be. A crew from either line arriving
at the terminus of the other should return with a train made up by
the company operating the latter, together with any cars which
might be "picked up" on the way.
Thus, for the purposes of operation, the line over which train
crews worked was 81 miles in length, 34 miles of Western Maryland
track and 47 miles of Reading track, and the relation of the men to
the company, other than the one which originally employed them,
while on its line, was defined by the contract quoted from in the
opinion of the court.
Five of the paragraphs of this contract seem to me decisive of
what that relation was, and of this case,
viz.:
"5. Each company to pay the other an agreed compensation for the
service of its engines and crews while on its line."
"10. Each company to be responsible and bear all damage and
expenses to persons and property caused by all accidents on its
road."
"17. Each company to have the right to object to,
and to
enforce objection to, any unsatisfactory employee of the other
running upon its lines."
"18. All violations of rules or other derelictions by employees
of one company while on the road of the other shall be promptly
investigated by the owning company and the result reported to the
employing company, with or without suggestions for disciplining,
the employing company to report to the other the action taken."
"21.
The employees of each company while upon the
Page 252 U. S. 482
tracks of the other shall be subject to and conform to the
rules, regulations, discipline and orders of the owning
company."
The deceased brakeman, Hull, was killed on the Reading tracks at
Harrisburg, 30 miles away from any Western Maryland track, by the
alleged negligence of a Reading engineer, when engaged, under the
direction of a local Reading yardmaster, in "picking up" cars to be
added to a train which was made up by the Reading Company at
Rutherford and dispatched by Reading officials from that
terminal.
Thus, when he was killed, Hull was working on the Reading
Railroad, subject to the "rules, regulations, discipline and
orders" of the Reading Company and at the moment was acting under
specific direction of a Reading yardmaster. The Reading Company was
paying for the service which he was rendering when he was killed,
it had authority to cause his discharge if his service was not
satisfactory to it (paragraphs 17 and 18 of the contract,
supra), and it had specifically contracted to be
responsible for all damage to persons and property caused by
accidents on its line growing out of the joint operation.
It is admitted that the service he was rendering was in the
movement of interstate commerce, but, upon the facts thus stated,
it is concluded in the opinion that he was not within the scope of
the act providing that
"Every common carrier by railroad while engaging in commerce
between any of the several states . . . shall be liable in damages
to any person suffering injury
while he is employed by
such carrier in such commerce, or, in case of the death,"
etc. 35 Stat. c. 149, ยง 1, p. 65.
I cannot concur in this decision of the Court for the reason
that the case seems to me to be ruled by a conclusion as to the
applicable law, stated in a strongly reasoned opinion in
Standard Oil Co. v. Anderson, 212 U.
S. 215, in this paragraph:
"One may be in the general service of another, and
Page 252 U. S. 483
nevertheless, with respect to particular work, may be
transferred, with his own consent or acquiescence, to the service
of a third person so that he becomes the servant of that person,
with all the legal consequences of the new relation."
By the contract of hiring, Hull was in the general service of
the Maryland Company, but, "by his consent and acquiescence," he
was transferred to the service of the Reading Company whenever his
train passed onto its tracks. From that moment until his return to
the Maryland Company's tracks again, he was engaged exclusively in
the work of the Reading Company, that company paid for his
services, he was under its "rules, regulations, discipline and
orders," and it had authority to cause his discharge if his service
was not satisfactory. He was under the control of that company as
to what he was to do and as to the details of the manner of doing
it as completely as if he had no other employer. He ceased for the
time being to be the servant of the Maryland Company, and became
the servant of the Reading Company.
212 U. S. 212 U.S.
215,
212 U. S.
224.
The Federal Employers' Liability Act does not require that a
person shall be in the exclusive employ of a railroad common
carrier in order to come within its scope. It provides that such
carrier shall be "liable in damages to any person injured
while
he is employed [engaged] by it in interstate commerce," and it
is impossible for me to accept the conclusion that Hull, when in
the pay of the Reading Company, assisting in operating Reading
interstate trains on Reading tracks under the direction solely of
Reading officials, general and local, was not "employed" by it in
interstate commerce within the meaning of this provision.
We are not dealing here with mere words or with merely
"conventional relations," but with very serious realties. Enacted,
as the Federal Employers' Liability Act was, to bring the United
States law up to the humanitarian level
Page 252 U. S. 484
of the laws of many of the states by abolishing the unjust and
irritating fellow servant rule, by modifying the often harsh
contributory negligence rule, and by otherwise changing the common
law liability of interstate rail carriers to their employees, it
should receive a liberal construction to promote its important
purpose. Its terms invite the application of the rule, widely
applied by other courts and clearly approved by this Court in the
case cited, that a man may be in the general service of one and
also, with respect to a part of his service -- to particular work
-- be in the service of another employer, so that he becomes for
the time being the servant of the latter, "with all the legal
consequences of that relation." The line of demarcation could not
be more clearly drawn than it was in this case, and the rule seems
to me to be sharply and decisively applicable.
In the opinion of the Court, it is said: "It is clear that each
company retained control of its own train crews." Upon the
contrary, it seems to me, it is clear that neither company retained
any control whatever over the crews primarily employed by it while
they were on the line of the other company.
"21. The employees of each company, while upon the tracks of the
other, shall be subject to and conform to the rules, regulations,
discipline and orders of the owning company,"
was the contract between the two companies under which they were
operating when Hull was negligently killed.