Hull v. Philadelphia & Reading Railway Co.

Boyd, C. J., delivered the opinion of the Court. 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 ease there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict must he 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 Bailway 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 Butherford, Pa., and when he was killed the same crew was engaged in taking a train from Butherford to Hagerstown. The Western Maryland road extends from Hagerstown, Md., to Lurgan, Pa., and the defendant’s road from Lurgan to Butherford, and for the purpose of operating trains from Hagerstown to Butherford 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. Bobert A. Warner, conductor of the train, testified that they had taken a train from Hagerstown to Butherford—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 Butherford yard of the defendant company. He directed them to get a train of cars off the westbound yard and pick up seven cars at Harrisburg.

They proceeded from Butherford 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 theii train. The yard-master at the Butherford yard gave him instructions as to the operations connected with the movement of the train. The Philadelphia & Beading 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 & Beading 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 vario as 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 hearing upon the question we have before us. One of the principal cases relied on by the appellant is North Carolina Railroad Company v. Zachary, 232 U. S. 248 , Ann. Cas. 1914 C, 159. In that case it was shown that the Youth Carolina Bailroad Company was not an interstate railroad—its tracks and property lying wholly within the State—but it had leased its road fa the Southern Bailway Company, which is an interstate railway, and a fireman employed by the latter company in interstate commerce was killed on the road of the lessor by the alleged negligence of the lessee. Justtob; Pitwev said in the early part of Ms opinion that: “Under the local law as laid down in Logan v. North Carolina R. R. Co. 116 N. C. 940 , 21 S. E. 959 , the lessor is responsible for all acts of negligence of its lessee occurring in the conduct of business upon the lessor’s road; and this upon the ground that a railroad corporation can not evade its public duty and responsibility by leasing its road to another corporation, in the absence of a statute expressly exempting it.

The responsibility is hold to extend, to employees of the lessee, injured through the negligence of the latter.” After referring to the decision of the lower Court in 156 N. C. 500 , 72 S. E. 858 , he said: “It is plain enough, however, that the effect of the rule thus laid down, especially in view of the grounds upon which it is based, is that although a railroad lease as between the parties may have the force and effect of an ordinary lease, yet with respect to the railroad operations conducted under it, and everything that ⁵⁴⁴ relates to the performance of the public duties assumed by the lessor under its charter, such a lease—certainly so far as concerns the rights of third parties, including employees as well as patrons—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. This being the legal situation under the local law, it seems to us that it must and does result, in the case before us, that the lessor is a ‘common carrier by railroad engaging in commerce between the States’ and that the deceased was ‘employed by such carrier in such commerce’ within the meaning of the Federal Act; provided, of course, he was employed by the lessee, in such commerce at the time he was killed.” In the case of Southern Ry. Co. v. Lloyd, 239 U. S. 496 , an engineer in the general employ of the Southern Railway Co., was injured on the road of the Forth Carolina Railway Co., being the same company mentioned in the Zachary case, and the relation was the same between the two companies as in that. The plaintiff sued and recovered judgment against both companies, which was affirmed by the Supreme Court of the State and later by the Supreme Court of the United States—citing the Zachary case as the authority for it.

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 Forth 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 plaintiffs intestate must liare been employed by said carrier in such commerce.” As the North Carolina B. B. 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 P'ityey 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 By. 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 hear 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