Train crews of the Big Four Railroad, operating under a
reciprocal arrangement for freight exchange between it and the C.
& O. Railroad, ran Big Four locomotives and cabooses from the
common terminal over a twelve-mile stretch of C. & O. track, on
which were several stations, to a point on the C. & O. where
they picked up trains of freight cars destined for the Big Four and
returned with them to its line. Though the men were paid by the Big
Four and subject to discharge or suspension only by it, the traffic
was C. & O. traffic, paid for under its tariffs, and the work
was done under the rules of that railroad and under the immediate
supervision of its trainmaster.
Page 276 U. S. 29
Held that a member of such a crew, injured while so
engaged, was
pro hac vice an employee of the C. & O.
Railroad, within the Employers' Liability Act. P.
276 U. S.
32.
14 F.2d 1021 reversed.
Certiorari, 273 U.S. 690, to a judgment of the circuit court of
appeals, reversing a judgment recovered by the above-named
petitioner in an action under the Federal Employers' Liability Act
for the death of her husband in an accident on the Chesapeake &
Ohio Railway.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This was an action under the Federal Employers' Liability Act
against the Chesapeake & Ohio Railway Company,
Page 276 U. S. 30
of Virginia, by Katherine Linstead, as executrix, to recover
damages for the death of her husband, who was a conductor in the
employ of the Cleveland, Cincinnati, Chicago & St. Louis
Railway Company, known as the "Big Four," but who was working upon
a freight train running upon the Chesapeake & Ohio Railway
Company's tracks between Stevens, Kentucky, and Riverside, Ohio,
near Cincinnati. The question in the case is for whom he was
working when he was killed, whether for the Chesapeake & Ohio
Railway Company, the respondent, or the Big Four Company. He was
one of a train crew of the Big Four Company composed of an
engineer, a conductor, and two brakemen. The Chesapeake & Ohio
Company comes from the East to Cincinnati along the southern bank
of the Ohio River, and crosses that river at Cincinnati. The Big
Four Company has no line in Kentucky, but receives traffic and
business from the Chesapeake & Ohio Company at Cincinnati, or
near thereto on the north side of the river, delivering the traffic
to the Northwest. The terminal yard, so-called, of the Chesapeake
& Ohio reaches from a station called Stevens, in Kentucky, for
some 12 or 13 miles to Riverside, near Cincinnati, on the Ohio
side, and in this 12 or 13 miles, the Chesapeake & Ohio line
passes five stations, called Brent, Altamont, Newport Waterworks,
Brick House, and Cold Haven, and over an Ohio River bridge. It is
convenient for both railroads in the interchange of traffic to make
an arrangement by which the Big Four lends to the Chesapeake &
Ohio a locomotive and caboose and a train crew to take the freight
trains that come into Stevens, Kentucky, from the East, to the Big
Four Company at Riverside, Ohio, over the rails of the Chesapeake
& Ohio. The Chesapeake & Ohio does not pay the Big Four
Company any rental for the lending of its locomotive and caboose
and crew in this matter, but it pays the consideration by a
reciprocal service rendered to the Big Four by a train
Page 276 U. S. 31
crew and locomotive and caboose of the Chesapeake & Ohio.
When the Big Four train crew and locomotive and caboose run on the
track of the Chesapeake & Ohio between Stevens and Riverside,
near Cincinnati, they are furnished with timetables and rule books
of the Chesapeake & Ohio Railway. They are under the
supervision and control, so far as their work is concerned, of the
trainmaster of the Chesapeake & Ohio Company, whose
jurisdiction reaches from Stevens to Riverside in the operation of
the Chesapeake & Ohio road. The Big Four crew is not subject to
discharge by any officer of the Chesapeake & Ohio road. In the
operation of the train over the Chesapeake & Ohio line, they
obey the signals of the switch tenders of that company, and comply
with the rules for operation on its line. The Big Four crew attends
to nothing while on the Chesapeake & Ohio line but the train
which it is sent over to Stevens to bring to the junction point at
Riverside on the Ohio side. All of the members of the train crew,
including the deceased, were paid by the Big Four Company.
On the morning of the accident, Linstead, the deceased, as
conductor, had brought over his crew with the Big Four locomotive
and caboose to Stevens, had attached the locomotive and caboose to
a train of cars containing 22 loads and 18 empties, and was
proceeding to take them to Cincinnati and the junction with the Big
Four road. The train had proceeded only a few miles on the
Chesapeake & Ohio track when it was overtaken and run into by a
commutation passenger train of the Chesapeake & Ohio Company
running from Stevens to Cincinnati and back again. It was a train
operated by the Chesapeake & Ohio Railway for the convenience
of early morning passengers, and was not on the timetable. It was
called the "Chippy." Linstead was in the caboose at the rear of his
freight train. The caboose was shattered to pieces, and Linstead
was killed.
Page 276 U. S. 32
The trial was had in the district court in Kentucky, held at
Covington, and in the charge the court used this language, which
was duly excepted to:
"First, under the evidence here, you are authorized to believe
-- you couldn't find otherwise -- that the Chesapeake & Ohio
Railway is a common carrier engaged in interstate commerce,
carrying freight and passengers between the states."
"Second, under the evidence you would be authorized to find --
you couldn't find otherwise -- that the defendant, her husband, on
the occasion of the injury, was in the employ of the Chesapeake
& Ohio Railway Company and engaged in interstate commerce
work."
The result of the trial was a verdict for $16,500, upon which
judgment was entered.
By writ of error, the case was carried to the circuit court of
appeals. That court, by per curiam, reversed the judgment and
remanded the case for further proceedings. The language of the
court was:
"We are unable effectively to distinguish the facts of this case
from those of
Hull v. Philadelphia, etc., Ry.,
252 U. S.
475, an opinion which apparently was not brought to the
attention of the trial court."
The judgment of the circuit court of appeals was brought here by
certiorari. 273 U.S. 690.
The legal consequences of the relation between one in the
general service of another who is in the special service of a third
person are set forth in the case of
Standard Oil Co. v.
Anderson, 212 U. S. 215,
212 U. S. 221.
In that case, the plaintiff was employed as a longshoreman by a
master stevedore who, under contract with the defendant, was
engaged in loading a ship. The plaintiff was working in the hold,
where, without fault on his part, he was struck and injured by a
draft or load of cases containing oil which was unexpectedly
lowered from a winch, and the question presented was whether the
winchman whose negligence
Page 276 U. S. 33
probably produced the injury was the servant of the owner of the
ship or of the stevedore. After reference to the opinion of Chief
Justice Shaw in the case of
Farwell v. Boston & Worcester
Railroad Corporation, 4 Metc. (Mass.) 49, this Court said that
the master was answerable for the wrongs of his servant not because
he had authorized them, nor because the servant in his negligent
conduct represented the master, but because he was conducting the
master's affairs, and the master was bound to see that his affairs
were so conducted that others were not injured, and that this
principle rested on the great principle of social duty adopted from
general considerations of policy and security. The opinion
continues:
"The master's responsibility cannot be extended beyond the
limits of the master's work. If the servant is doing his own work
or that of some other, the master is not answerable for his
negligence in the performance of it."
"It sometimes happens that one wishes a certain work to be done
for his benefit and neither has persons in his employ who can do it
nor is willing to take such persons into his general service. He
may then enter into an agreement with another. If that other
furnishes him with men to do the work and places them under his
exclusive control in the performance of it, those men became
pro hac vice the servants of him to whom they are
furnished. But, on the other hand, one may prefer to enter into an
agreement with another that that other, for a consideration, shall
himself perform the work through servants of his own selection,
retaining the direction and control of them. In the first case, he
to whom the workmen are furnished is responsible for their
negligence in the conduct of the work, because the work is his work
and they are for the time his workmen. In the second case, he who
agrees to furnish the completed work through servants over whom he
retains control is responsible for their negligence in the conduct
of it, because, though it is
Page 276 U. S. 34
done for the ultimate benefit of the other, it is still in its
doing his own work. To determine whether a given case falls within
the one class or the other, we must inquire whose is the work being
performed, a question which is usually answered by ascertaining who
has the power to control and direct the servants in the performance
of their work. Here, we must carefully distinguish between
authoritative direction and control and mere suggestion as to
details or the necessary cooperation, where the work furnished is
part of a larger undertaking."
Now, the work which was being done here by Linstead and his crew
was the work of the Chesapeake & Ohio Railway. It was the
transportation of cars, loaded and empty, on the Chesapeake &
Ohio Railway between Stevens and Cincinnati. It was work for which
the Chesapeake & Ohio road was paid according to the tariff
approved by the Interstate Commerce Commission; it was work done
under the rules adopted by the Chesapeake & Ohio Railway
Company, and it was done under the immediate supervision and
direction of the trainmaster in charge of the trains running from
Stevens to Cincinnati, and that trainmaster was a superior employee
of the Chesapeake & Ohio road. We do not think that the fact
that the Big Four road paid the wages of Linstead and his crew, or
that they could only be discharged or suspended by the Big Four,
prevented their being the servants of the Chesapeake & Ohio
Company for the performance of this particular job.
The case of
Hull v. Philadelphia & Reading Railway
Co., 252 U. S. 475,
which controlled the view of the circuit court of appeals, is to be
distinguished from this. In that case, Hull, the plaintiff's
deceased, was in the employ of the Western Maryland Railway Company
as a brakeman, and was killed. The Western Maryland Company was an
interstate carrier operating a railway from Hagerstown, Maryland,
to Lurgan, Pennsylvania,
Page 276 U. S. 35
at which point it connected with a railway owned and operated by
the defendant, the Philadelphia & Reading Railway Company,
which extended from Lurgan to Rutherford, in Pennsylvania. By
arrangement between the two companies, through freight trains were
operated from Hagerstown to Rutherford, one half over one line, and
one half over the other, and each company ran its own locomotives
and freight trains over the united line from Hagerstown to
Rutherford, observing the rules of each company on its respective
line. It was held that Hull was not a servant of the Philadelphia
& Reading Company, by which he was killed, but only the servant
of the Western Maryland Company. That was because the work which
Hull was doing was the work of the Western Maryland Company, even
though it was carried on for a part of the way over the rails of
the Philadelphia & Reading Company. The locomotive belonged to
the Western Maryland Company, the cars belonged to the Western
Maryland Company, and the loads that were carried were being
carried for the Western Maryland Company, and presumably the rates
which were received for the transportation were the receipts of the
Western Maryland Company. In other words, the whole line between
Hagerstown and Rutherford was exactly as if it had been jointly
owned by the two companies and jointly used by them for their
freight trains. Therefore the work was done by the Western Maryland
for itself, and the mere transfer of the train owned by the Western
Maryland and operated by it on to the rails of the Philadelphia
& Reading Railway did not transfer the relation of the deceased
from the general employment of the Western Maryland to a special
employment by the Philadelphia & Reading as another master.
In the present case, there was such a transfer, and the line
over which the transportation was effected and on which the work of
transportation was done by the deceased
Page 276 U. S. 36
was the line of the Chesapeake & Ohio, which was master, and
remained in charge of the operation, with the immediate supervision
of the Big Four crew which was lent for the very purpose of doing
the work of the Chesapeake & Ohio.
For these reasons, the judgment of the circuit court of appeals
must be reversed, and the judgment of the district court of
Kentucky restored.
Reversed.