APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 4, 1973.
This is an appeal from a judgment of the Circuit Court of Madison County, following the granting of defendant-appellee's motion for summary judgment in an action brought under the Federal Employees Liability Act to recover injuries resulting from the defendant's alleged negligence.
The plaintiff alleged that while working for the defendant he was injured because of the defendant's negligence. The defendant answered denying that the plaintiff was employed by the defendant, denying that the plaintiff was injured, and denying that the defendant was negligent. Subsequently, the defendant filed its motion for summary judgment urging that the plaintiff was not employed by the defendant at the time of alleged injury and was thus not entitled to bring suit pursuant to F.E.L.A. This motion was granted and judgment for the defendant was entered on the motion for summary judgment.
The facts of this case, as gleaned from the affidavit, depositions, and pleadings, indicate that the plaintiff at the time of the injury had been employed by the Missouri Pacific Truck Lines. He was employed as a truck driver doing work on the defendant's ramp at Mitchell, Illinois. He operated a "ramp tractor" used to load and unload "piggy-back" trailers on and off railroad cars. On the date of the injury, as he was preparing to get into the tractor on the driver's side, he stepped up onto the running board with his right foot, which slipped out from under him. As he fell, his kneecap struck the running board which was wet with gas that had spilled from the gas tank, which was located above and in close proximity to the running board.
The plaintiff was hired by the Missouri Pacific Truck Lines. He received his wages from the truck line. He worked under the provisions of a contract between the truck line and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 600, of which the plaintiff was a member. He was covered by the Social Security Act and the Fair Labor Standards Act and was not covered by the Railroad Retirement System. The "ramp tractor" was owned by the truck line. Pursuant to contract, the service work on the tractors was done at a local service station and billed to the defendant.
The plaintiff received his orders from the truck line's dispatcher. None of the defendant's employees ever told the plaintiff what to do or how to do it. The plaintiff did testify in his deposition "I suppose, if the yardmaster or someone did tell me something on how to do it; probably better to do, let's put it that way, but there's never been anyone."
Mr. Lloyd Ledesky, the assistant dispatcher for the truck line, substantiated that the defendant's yardmaster never directed any truck line personnel and that the yardmaster never told Mr. Ledesky which trailers must go on and off. The only time that defendant's employees were in the truck line ramping area is when there is trouble with the stanchions, which hold the trailers on the railroad car, and the railroad employees would have to take a torch and cut the stanchion. No employee of the defendant had any responsibility for unloading the trailers nor did any employee directly supervise the work on any basis. The authority to hire and fire employees rested with the truck line.
Upon occasion officials from the truck line and the defendant would visit the ramp site and discuss the operations with the dispatcher. Mr. Ledesky testified that he felt that these officials could indicate to him something could be done differently and then the officials of the truck line would discuss the matter considering the suggestions and then do it to their own satisfaction.
The work at the Mitchell ramp was performed pursuant to a contract between the defendant and the truck line dated January 2, 1968. The contract provided, among other things, that the defendant would pay based on an hourly rate for the workers at the ramp site, that the workers were to be the sole employees of the truck line which was to remain an independent contractor. It also provided that the truck line would operate in the area as an "agent" for the defendant.
The truck line was to collect and pay over to the defendant all charges on freight and furnish the defendant with receipts. The freight not paid for was to be returned to the defendant. Any violations of the collection provisions subjected the truck line to liability to the defendant for the freight charges which the defendant could deduct from the amount due to the truck line.
The contract also provided that the truck line could not assign or sublet any interest in the contract without the defendant's written approval. No such limitation existed for the defendant, who could terminate the contract at any time it felt the truck line's service was unsatisfactory. The truck line could terminate the contract on 30 days notice.
The truck line also agreed in the contract to indemnify the defendant for any type of claims and obtain insurance to cover all liabilities for claims arising from employer's liabilities or workmen's compensation laws.
The basic equipment used at the ramping operation was the ramp tractor, an electric "gun" or wrench, a breaking bar and a small crank. The ramp tractor was owned by the truck line and maintained by the defendant. The ownership of the "guns" or wrenches is uncertain, the breaking bar and small cranks were devised on the ...