104 A. 274 | Md. | 1918
This is an appeal from a judgment rendered in favor of the defendant (appellee) in a suit brought by the appellant under the Federal Employers' Liability Act* to recover for loss sustained by reason of the death of John M. Hull in Harrisburg, Pa. There are three counts in the declaration, all of which allege that John M. Hull, the son of Elizabeth Hull, the plaintiff, was at the time of the injuries and death complained of, and for some time prior thereto had been a servant and employee of the defendant, and was employed and engaged in the performance of his duties in interstate commerce. The alleged negligence relied on is stated differently in the three counts, but it is only necessary to say that the declaration is sufficient to bring the case within the Federal Employers' Liability Act, if the facts sustained it. The defendant filed the general issue plea and one alleging that John M. Hull was not on or about the 17th of March, 1917, or at any other time, a servant or employee of the defendant. At the conclusion of the testimony offered by the plaintiff the defendant offered a prayer that "under the pleadings in this case there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant." That was granted and a verdict was rendered accordingly, upon which the judgment appealed from was entered. *542
Mr. Hull belonged to a crew employed by the Western Maryland Railway Company and was freight brakeman. The day before the accident the crew had taken a train, hauled by a Western Maryland engine and operated by Western Maryland employees from Hagerstown, Md., to Rutherford, Pa., and when he was killed the same crew was engaged in taking a train from Rutherford to Hagerstown. The Western Maryland road extends from Hagerstown, Md., to Lurgan, Pa., and the defendant's road from Lurgan to Rutherford, and for the purpose of operating trains from Hagerstown to Rutherford and back the two roads entered into an agreement which will be referred to later.
We will first consider the question suggested by the special plea — whether Hull was an employee of the defendant within the meaning of the Federal Employer's Liability Act. There can be no doubt about his being engaged in interstate commerce. Robert A. Warner, conductor of the train, testified that they had taken a train from Hagerstown to Rutherford — arriving at the latter place some time the day before, and were called about 12:15 A.M. on the 17th of March by the yard-master of the Rutherford yard of the defendant company. He directed them to get a train of cars off the west-bound yard and pick up seven cars at Harrisburg. They proceeded from Rutherford to Harrisburg on the west-bound main track, on which track their train was standing when they stopped for the seven cars, which they added to their train. The yard-master at the Rutherford yard gave him instructions as to the operations connected with the movement of the train. The Philadelphia Reading supplied the person to take the place of Hull as a member of the crew after he was killed. The witness said that his instructions were that when on the line of the Philadelphia Reading he should obey the rules and instructions of that company.
The Federal Employers' Liability Act provides: "That every common carrier by railroad while engaging in commerce between any of the several States or territories * * * shall be liable in damages to any person suffering injury *543 while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his personal representatives for the benefit of the surviving widow or husband and children of such employee * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier," etc. There have already been a large number of decisions on various questions which have arisen under Employers' Liability Acts in the State and Federal Courts, but it is rather remarkable that there are not more directly bearing upon the question we have before us.
One of the principal cases relied on by the appellant is NorthCarolina Railroad Company v. Zachary,
In the case of Southern Ry. Co. v. Lloyd,
We quoted at length from the Zachary case because the appellant relied so strongly on it, and, being decided by the Supreme Court of the United States, it is necessary to ascertain whether it is applicable to this case. After giving it our most careful consideration we have reached the conclusion that it is not. JUSTICE PITNEY shows clearly that the decision is based on the local law of North Carolina, as announced by the Supreme Court of that State, which makes a lessor railway company responsible for all acts of negligence of its lessee occurring in the conduct of business upon the lessor's road, as is seen by the quotations we have made. He said what the Act clearly declares, that in order to bring the case within the terms of the Federal Act, "defendant must have been, at the time of the occurrence in question, engaged as a common carrier in interstate commerce, and *545 plaintiff's intestate must have been employed by said carrier in such commerce." As the North Carolina R.R. Co., had made the lease without being authorized by a statute expressly exempting it, it could not escape its responsibility under the rule adopted in that State, and JUSTICE PITNEY said, as shown above, that the lease "constitutes the lessee the lessor's substitute or agent, so that for whatever the lessee does or fails to do, whether in interstate or intrastate commerce, the lessor is responsible" (italics ours). No such relation exists between these two railroad companies. There was no lease, and the appellee had not turned over its charter duties to the Western Maryland Ry. Co. It was still in the discharge of those duties, but the two companies by agreement used each other's tracks in the performance of their duties in certain interstate commerce.
It is not unusual for two railroad companies to make such, or similar arrangements. Sometimes there is the relation of lessor and lessee, and, without citing the cases in the notes, it will be seen by reference to 33 Cyc. 703-707, that the Courts are not altogether in harmony in reference to some matters arising when that relation exists. Then there are a number of cases which have arisen when one company has permitted the use of its road by another, Ibid. 710, and still others, where companies were operating or using roads of others, Ibid. 713. When we are called upon to ascertain whether a person is a servant or employee of another, sometimes the question arises as to whether, although he is a general servant of one master, he has become the servant of another, in some particular employment. See 26 Cyc. 1285, where the effect of the servant of one master being under the control of another is considered, but on the next page of that volume it is said: "The fact that one railroad company uses the track and stations of another under contract between them does not as a rule make the employees of either company fellow-servants with the employees of the other." It is undoubtedly true that two railroad companies operating under such a contract as the one in this case bear a very *546 different relation to each other from those operating under a lease, where one has practically turned over the operations of its road to the other.
Hull was unquestionably an employee of the Western Maryland Railway Company, and not of the appellee, until he reached Lurgan on his trip the day before he was killed, and would have been as soon as he reached Lurgan on the return trip, had he not been killed. To hold that he had ceased to be an employee of the Western Maryland and had become one of the appellee from the time he reached Lurgan would be contrary to what is generally understood by the term "employee," and would unquestionably be contrary to the spirit, if not the letter of the agreement between the two companies, which was offered in evidence by the appellant. There is not the slightest suggestion in that agreement that the crew of one company was to be regarded as the crew of the other, while on the latter's line. We will refer to such parts of the agreement as we deem material:
Paragraph 2 is as follows:
"Freight trains to run through between Hagerstown and Rutherford in both directions and each company agrees to supply motive power in the above proportions so as to equalize the service performed."
Paragraph 4 provides that:
"Crews of each road to run through with their engines over the line of the other company."
Paragraph 5 provides in part that:
Each company to compensate the other for the use of the other's engines and crews on their line at the rates per hour set out. Time to begin at Rutherford and Hagerstown when crew is called for.
Paragraphs 6, 7, 8, 9 and 10 are as follows:
*547"6. The division of earnings of 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.
"8. No charge shall be made for water and terminal facilities.
"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.
"10. Each company to be responsible and bear all damage and expenses to persons and property caused by all accidents upon its road."
Paragraphs 16 to 21, inclusive, are as follows:
*548"16. Each company to relieve and return 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 line.
"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. The employees 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 co-operation 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."
There would seem to be no doubt that the provisions of the contract referred to above show that the two companies did not intend to make the regular employees of the one company the employees of the other, when on the latter's line — on the contrary, it is apparent that they intended the very opposite. The appellant relies on paragraph 10, but there is nothing in that to show that the employees of the other company are to be regarded as employees of the owning company. The appellee would undoubtedly be responsible to an employee of the Western Maryland Railway Company for injuries sustained by reason of the negligence of the appellee's employees or agents, but not under the Federal Employers' Liability Act. Suppose that Act had not been passed before this accident, could it have been successfully contended that the appellee was not responsible for the death of Hull because its employees were his fellow servants? That would have extended the fellow-servant doctrine very far, and certainly beyond what had been done in this State. In P., W. B.R.R. Co. v. State, use Bitzer,
In the case of Robinson v. B. O.R.R. Co.,
The fact that the crews of the other company were subject to the rules and regulations of the owning company can not be material in determining the question. This is, of course, necessary for the safety of all persons traveling on the line of the owning company, as well as all working on it. The business could not be successfully conducted on a road over which many trains ran, if the "employees of each company", to use the language of paragraph 21, while upon the tracks of *551
the other, were not subject to and required to conform "to the rules, regulations, discipline and orders of the owning company." But that would certainly not have the effect of making them employees of the owning company, any more than it would the porter on a Pullman car, or an express agent, or mail agent traveling on the train. In Oliver v. Northern Pac. Ry. Co.,
196 Fed. 432, it was held by the U.S. District Court that a porter on a Pullman car could recover under the Federal Act under the circumstances of that case, but the decision was based on the ground that he was employed by an association composed of the railroad company and the Pullman Company, which were joint owners of 50 cars. In Mo., K. T. Ry. v. Blalach,
We have not thought it necessary to discuss the case ofStandard Oil Co. v. Anderson,
We are of the opinion, then, that under the language of the Act, under the agreement between the two companies, so far as it is binding (and the appellant put it in evidence) and under what we regard as the reasonable and practicable view of the question, as well as under such authorities as we deem applicable, we must hold that the Federal Employers' Liability Act does not apply to this case. As that conclusion must result in an affirmance of the judgment, it is unnecessary to discuss the question of negligence.
Judgment affirmed, the appellant to pay the costs.