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Waters v. Chicago & E.i.r. Co.

AUGUST 7, 1967.

HOWARD E. WATERS, PLAINTIFF-APPELLANT,

v.

CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY, A RAILROAD CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County, Twentieth Judicial Circuit; the Hon. JOSEPH E. FLEMING, Judge, presiding. Judgment affirmed.

EBERSPACHER, J.

Plaintiff, Howard Waters, filed his complaint in two counts, under the Federal Employers' Liability Act *fn1 against the defendant, Chicago & Eastern Illinois Railroad Company, for damages on account of alleged injuries sustained on July 25 and August 22, 1964, when he was employed by Simpson Express & Trucking Company, (hereinafter referred to as Simpson), as a ramp man at the "piggy-back" loading ramp of the defendant railroad in Madison County, Illinois. Contending that his duties as an employee of the railroad were in furtherance of interstate commerce, plaintiff charged negligence of the railroad resulting in his injuries.

The defendant railroad denied that plaintiff was an employee and denied it was guilty of negligence, denied jurisdiction of the court under F.E.L.A. and denied the nature and extent of injuries, and averred that the negligence of the plaintiff caused or contributed to his injuries.

At the close of all the evidence defendant moved for a directed verdict, contended that the evidence was insufficient to show that plaintiff was an employee of defendant, and insufficient to establish liability under F.E.L.A., on which motion the court reserved its ruling. The cause was submitted to the jury and it returned a verdict against the plaintiff on both counts, on which judgment was entered. The court denied plaintiff's post-trial motion for a new trial, and also denied defendant's post-trial motion, which renewed its motion for a directed verdict made at the close of all the evidence.

Plaintiff here contends that the verdict of the jury was contrary to the law, which contrary verdict was caused by the refusal of the court to instruct the jury relative to section 5 of the Act. *fn2 By its cross appeal, defendant contends the court erred in not directing a verdict for defendant at the close of all the evidence.

In the early 1950's, "piggy-back" service was begun by the railroad to meet the competition of other rail carriers who had instituted such service. "Piggy-back" service is a system whereby over-the-road trailers, which are customarily pulled over the highways by tractor-trailer trucks, are loaded by customers at their place of business and carried from there by a truck to a railroad yard, where they are pulled onto railroad flat cars, called TTX cars. There the trailer is disengaged from the tractor and is tied to a stanchion, which holds the trailer securely on the railroad car. The railroad cars are then pulled by rail to a railhead near the consignee's destination, where they are removed from the flat cars by a trucking or drayage company and delivered over the highways and streets to the consignee by the trucker.

The C. & E.I. Railroad has had, since the institution of "piggy-back" service in the early 1950's, five ramps: one in Chicago, one in Dalton, Illinois, one in Madison-St. Clair County, Illinois area, one at Terre Haute, Indiana, and one at Evansville, Indiana. The ramps are merely an inclined plane, made of cinders and ties, which will permit a tractor-trailer motor vehicle to be driven up on a railroad flat car backed against the ramp. The ramps, yard and parking lots are maintained by the railroad.

At the time the "piggy-back" service was instituted, and at all times since then, the C. & E.I. has not had tractors, drivers, tools, machinery and equipment to pull and handle these over-the-road trailers. Between the early 1950's and 1960 the C. & E.I. Railroad entered into contracts with local trucking firms to furnish the motor vehicles, drivers and equipment to haul the trailers onto and off of the flat cars. In early 1960, the local hauling and drayage company which had the contract with the C. & E.I. for the truck hauling and "piggy-back" work in the St. Louis Metropolitan area, had proved unsatisfactory to the C. & E.I. and the contract for this trucking work was open for bids. Among the bidders was Simpson whose bid was accepted and a contract was entered into, on April 1, 1960, for the "piggy-back" work at the C. & E.I. ramp at Mitchell, Illinois, between Simpson and the railroad.

Simpson is a local hauling and drayage firm which, since its acquisition by the present owner, in 1950, has been operated as a trucker doing contract cartage work, and had done "piggy-back" work under contract with other railroads prior to 1960. There have never been any officers of the C. & E.I. who were shareholders, officers or directors of Simpson.

After the C. & E.I. awarded the contract to Simpson for this "piggy-back" drayage work, Simpson sent tractors and men and equipment to the C. & E.I. ramp at Mitchell, Illinois, and these men and equipment performed the loading, unloading and delivery operations incident to the "piggy-back" work to and from the Mitchell ramp. As a part of the contract, Simpson leased an old boxcar, which was on poles, to use as office space for the Simpson dispatchers and employees and refurnished and refurbished it as an office at their own expense, for which the C. & E.I. was not billed or charged, and the railroad furnished all the electricity and heat for this office. In it were telephones hooked up directly to the C. & E.I. office in Chicago and to three other C. & E.I. locations. These were used for communication with other ramps of the railroad in order to ascertain how many trailers would be coming the following day so that Simpson could have the necessary men and equipment available and at the same time advise the ramps in Chicago and Terre Haute of trailers being loaded at Mitchell, for arrival the following day at those ramps. The work at the railroad's ramps was coordinated and controlled through a central office of the railroad in Chicago.

Plaintiff introduced into evidence the contract between C. & E.I. and Simpson, which was in effect at the time of the injuries of plaintiff. It designated Simpson as an independent contractor, and provided that persons performing the services contracted for, were to remain the sole employees of Simpson subject to Simpson's control and direction and not the employees or subject to the direction and control of the railroad. It provided that Simpson's liability for freight handled while in the possession of Simpson should be that of an insurer until such time as it was delivered either to the railroad or the consignee. It further provided that "for such transporting and delivery of freight, or loading or unloading of trailers from flat cars, and for services incidental thereto" Simpson was to be paid rates to be agreed upon from time to time, based upon exchange of letter agreements. The rates Simpson charged the railroad were on an hourly basis sufficient to pay the employees for their time, the fringes for pension, health and welfare, operating and maintenance cost of the Simpson equipment and a profit for Simpson; and fluctuated in accordance with Simpson's costs.

Plaintiff submitted testimony that part of the work done by him at the C. & E.I. ramp was not included in the contract between Simpson and the railroad and was customarily done by railroad employees on ramps of other railroads; as well as evidence that the lifting of bridge plates (heavy metal plates attached to cars to bridge the gap between cars to move trailers from one car to the next, and also attached to the wooden ramp to bridge the gap between the ramp and cars) was railroad work rather than the work of the Simpson ramp crew of which he was foreman or lead man. He also offered evidence that in actual practice he was supervised, directed and controlled in his work at the ramp by railroad employees. He offered proof of his injury while lifting a jammed bridge plate on July 25 and an injury as a result of stepping off a TTX car onto a block of wood which turned over with him on August 22, and that such blocks were used by the railroad switching crew, and left lying around the yards by railroad employees. He contends the negligence of the railroad in jamming and bending the bridge plate, and the scattering of wooden blocks on the ramp, was the cause of his permanent injury.

The railroad offered evidence that all the work done by plaintiff was incidental to the performance of the Simpson Contract, that he was not directed or controlled by the railroad, and that the communications and directions given him by the railroad were given to coordinate the railroad and ramp activities which his employer Simpson had contracted to perform; that some railroads do the ramp work with their own employees while others contract that work to be done. They also offered evidence that plaintiff had bid in the lead man's job at their ramp through his seniority in the Teamsters' Union at Simpson, by whom he had been employed since 1955; that while employed by Simpson at the C. & E.I. ramp he also performed services for Simpson on other jobs and that Simpson had cartage contracts with other firms and did some ramp work at other railroads which were billed by Simpson for plaintiff's time. The railroad also offered evidence tending to impeach plaintiff's occurrence witnesses, particularly as to the manner in which he sustained his injuries, and that the wooden blocks of the type which caused plaintiff's injury, were used and scattered by the ramp men in their work.

Both the issue of negligence and the question of whether the relationship of employer and employee existed between the defendant and plaintiff were contested; both were presented to the jury for determination. Plaintiff offered, and the court gave both his instruction #7, IPI 160.02, concerning the F.E.L.A. rule of liability and the issue of contributory negligence, his instruction #9, IPI 160.09, the F.E.L.A., no ...


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