Appeal by defendant from the Superior Court of Cook county;
the Hon. JOHN E. PAVLIK, Judge, presiding. Heard in the second
division of this court for the first district at the October
term, 1949. Judgment affirmed. Opinion filed November 27, 1951.
Rehearing denied January 2, 1952. Released for publication
January 3, 1952.
MR. PRESIDING JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 2, 1952
Defendant, Baltimore & Ohio Railroad Company, appeals from a $75,000 judgment entered against it in favor of plaintiff, Richard Downs, upon a jury verdict for personal injuries in an action brought under provisions of the Federal Employers' Liability Act.
The accident happened on the night of May 24, 1947, while the boat S.B. Way, carrying ore consigned from Duluth, Minnesota, to American Rolling Mill in Hamilton, Ohio, was being unloaded for cargo transfer on defendant's docks at Toledo, Ohio. The ore was unloaded from the holds of the vessel by a clamshell-like device known as a Hulett machine. This contrivance lifted and dumped the load into an overhead hopper. Under the hopper was another device, known as a Larry car, operated on a gravity track, which dropped the ore into railroad cars on any one of four parallel tracks below. Shortly before the accident a shaft broke in an ore receiving hopper, so that the dumping of ore from the hopper into the Larry car could not be controlled, and as a result the car was overloaded about 5,000 pounds. Upon instructions of his foreman, the plaintiff got into the Larry car with the operator, who moved the car to a position underneath the hopper to see what was wrong. In order to stop the car on the inclined tracks it was necessary to set the brakes. Plaintiff had gotten out of the Larry car and was straddling one of the rails on which the Larry car was operated and was engaged in assisting in repairing the broken machinery. The operator moved the Larry car a few feet up the track, stopped it and applied the brake, but the brake did not hold and the Larry car moved back, struck the plaintiff and caused him to fall 20 feet to the tracks below.
The theory of plaintiff is that, although a nominal employee of the Toledo, Lorain & Fairport Dock Company, he was actually an employee of the defendant; that the dock company was a mere agent of defendant and the agreement by which it was sought to effect an independent contractor relationship between the defendant railroad company and the dock company was a scheme to enable the defendant to evade its responsibility to its employees in violation of section 5 of the Federal Employers' Liability Act. The theory of defendant is that the dock was leased to the dock company; that the dock company had exclusive control of and operated it through its own employees, one of whom was plaintiff. It is further contended by defendant that at the time of the injury plaintiff was not engaged in interstate commerce; that the verdict is excessive; and that erroneous instructions were given to the jury on behalf of plaintiff.
Inasmuch as defendant rested on its motion for a directed verdict at the close of all the evidence offered on behalf of plaintiff and offered no evidence on its own behalf, the principal questions in the case, namely, whether or not plaintiff was an employee of an independent contractor and whether or not plaintiff at the time and place of the accident was engaged in interstate commerce, were treated by the trial court as questions of law.
Recovery under the Federal Employers' Liability Act is limited to employees of a carrier by railroad while engaged in interstate commerce. We quote the pertinent portion of the statute here involved (45 U.S.C.A. sec. 51):
"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 . . . 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
"Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter."
Section 5 of the Act (45 U.S.C.A. sec. 55) provides:
"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 chapter, shall to that extent be void. . . ."
The question as to whether plaintiff at the time and place of the accident was the servant of defendant or of an independent contractor depends, of course, upon whether the dock company was a bona fide contractor or a mere instrumentality of defendant a straw man without legal life of its own. We think the rule which should govern this character of case is well stated in 39 C.J., pp. 37, 38, as follows:
"The relation of master and servant does not exist between an employer and the servants of an independent contractor. . . . If, however, the employer retains or assumes control over the means and method by which the work of a contractor is to be done, the relation of master and servant exists between him and servants of such a contractor, and the mere fact of nominal employment by an independent contractor will not relieve the master of liability where the servant is in fact in his employ."
In order to determine whether or not the defendant here retained and assumed control over the means and method by which the work of the dock company was done, a ...