Polluck v. Minneapolis & St. Louis Railroad , 40 S.D. 186 ( 1918 )

GATES, J.

On the evening of October 11, 19x5, plaintiff was injured at Watertown, S. D., by a locomotive of defendant .at an aish pit at the roundhouse of defendant. This action wias brought to recover for such injury under the federal Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. St. 1916, §§ 8657-8665, Fed. Stat. Ann. 1909 Supp. 584, the first section of which is as follows:

“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 * * * resulting in whole or in part from the negligence. * * *”

Verdict and judgment were for plaintiff. Defendant appeals from the judgment and1 an order denying 'a new trial. Plaintiff concedes that, if he wias 'air employe of an independent contractor, hie was not entitled ifta recover in this case. Defendant'cloes not codtemdl that plaintiff and defendant were not. then engaged in interstate commerce, but does dcinitemct that plaintiff wias not “employed by such carrier,” and therefore that it is not liable under the said federal act. Assuming that plaintiff and the locomotive of defendant were, at the time of -the injury, •engaged in interstate commerce, the main question -is whether plaintiff was an employe of the defendant, within the meaning of said act, or wa's in the employ of an independent oantraotor.

One Snaza entered into an oral contract with defendant to keep certain coal chutes filled with coal and to keep the aishes out of a turntable pit. The coal chutes ware at an elevation so that the coal could be dumped therefrom into the defendant's locomotives. Snaza testified:

“I had the job for the Minneapolis & St. Louis road to •handle their coal down to the coal pits. L did not have any contract, but they told me I should work the -same as -contract. I had an arrangement with them, hut it was not in writing. It 'was an oral agreement which I 'agreed to 'shovel the coal and keep the -oinidier pit clean for so much per ton, and I wa's to hire the men necessary to ais'sist. I was to- hire them and I paid them, and they ware responsible to me. If any of the men did wot (do the work satisifa-citlclriily, I discharged them. If 'they did not keep the coal shoveled as I 'hlaidi agreed to do, Mr. Gos-sett would complain to me -because it was not done. He insisted that I must do the work as I had agreed to.”

Again he testified:

‘T did not have nici contract or paper signed with the Minneapolis Railroad Company for shoveling coal or cinders covering the fall and including October n, 1915, but I was told I coukl do just like I had a contract. ■ They told me I got a contract and I .should furnish the men and furnish eveiwthing as it is suppclsedi to do.”

Plaintiff testified that Snaza employed him, that he was working for Snlaza, and t'halt Snaza paid him. Pie further testified :

“Q. What controlled the question of when 3011 would be shovelling coal; or, in other words, when did 3-011 know when to shovel acial ? A. Because there was no coal in the coal chute, we went to shoveling coal, -some engines been- late. Did not come in-; we had enough. When they all- -Came all at once we did not have enough, and have to fill them again. There were five coal chutes. They would each hold four -of five tons. I do not know how man}' engines there would be a day. 'On some days there would be less -than eight. These engines, come in every day for coal, once a dlay. Some engine's come in more than once a day f£ir eoial or water or dumping cinders; there are two of us shoveling coal or cinders. We received instructions as to shovelling coal amid cinders from Bat Gossett. We dlid not get from him or any one else insitructi'cnisi as to when to- shlolvel the coal and cinders anid when to. wet 'them down. Q. Well, when dlid you know when to shovel cinders-? A. When 'the pit was pretty near full.”

[i] We think the evidence conclusively shows that defendant did not retain control over the manner of doing the work, and it certainly did not control the- time of Snaza or bis helpers. Jusit so long as the chutes Contained! sufficient c’oal for the engines that would come in, and jusit slo long as- the ash pit wias kept reasonably free from -cinders, the plaintiff land his employer Snlaza were the judges of their (hour® of work. The -control reserved by defendant was of results, hult not of time or m-dans. 14 R. C. L. 68; Labatt, Master & Servant (2d Ed.) § 34. We ithink this case falls within- the reasoning laid down -in the similar case of Chicago, R. I. & P. Ry. Co. v. Bond, 240 U. S. 449 36 Sup. Ct. 403, 60 L. ed. 735, arising -under the same act of Ocingress, wherein the court held thlalt the injured person Wa-s not an employe hut an independent contractor. In that decision the -court said:

“There was, it is true, and necessarily, a certain direction to he given by the company, or rather we -should' slay information given to Turner. But the manner of the work wa-s -unider bi-s control, to be clone -by him and those employed by him. lie wa-s ■responsible for its faithful performance anidl incurred the penalty of the instant termination of the contract for nonperformance. This was only ’a prudent precaution, incleed, necessary in view of the purpose of bis contract, which wia-3 itid malee provision for a daily supply of coal for the operation of the railroad. The power given wais one of control in a sense, but it was not a detailed control of the actions of Turner or those of bis employes. It was a judgment only ovar results and a necessary sanction of the obligation® which he had incurred. It was not tantamount to the control of an employe and a remedy a-gainst his -incompetaicy or neglect.”

The distinguishing features of that case were that there the conibract w’a's in writing amid) the contractor absolved the railway 'company from lability for injury - to himself anidi his employes, ■but those distinguishing features are to our minds unimportant.

[2] Respondent .relies, among many others, upon the decision in North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. ed. 591, Ann. Cas. 1914C, 159. But that case turned upon the preposition that the local law made the lessor liable for the negligence of the lessee. Our attention has not -been called itlo any provisions of the laws of South Dakota which change the common-law 'definition of a servant. Indeed, section 1476, C. C., is but ia codification of that definition.

[3] This is a case involving the construction -of :a federal act, and therefore the. deoisiOns of the Supreme Court of the United States are binding upon us. Believing that the decision in Chicago, R. I. & P. Ry. Co. v. Bond, supra, i's decisive of the principal question presented in this Case, it i's oiur duty to follow -it, and we therefore hold that, if the contract with Snaza rvas valid under section 5 of the federal act (U. S. Comp. Stat. 1916, § 8661; Red. Stat. Ann. 1909 Supp. 585), the plaintiff was not, at the time of the injury, employ eld by the defendant within the meaning of such act. This Conclusion' renders unnecessary 'a consideration of the other errors assigned.

Nothing herein stated! should be taken as an intimation of our views as to the right of plaintiff to recover damages as a nottremploye. We also expressly refrain from passing upon the question as to whether or not the contract between the defendant and S-naza was invalid as 'an evasliidn within the meaning of section 5 of said act. That question was raised in the Bond Case, supra, but was not in any manner raised in this case.

The judgment and1 order appealed from are reversed.