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December 15, 1959


The opinion of the court was delivered by: GRIM

George Okolinsky, seriously injured while at work on the premises of the defendant railroad, brought this action against it under the Safety Appliance Act, 45 U.S.C.A. §§ 1-23, and the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. At a pretrial conference it was agreed that the issues of employment and liability should be served and that the question of employment should be tried by the court without a jury, prior to trial on the question of liability. A trial has been held on the employment issue, and requests for findings of fact and conclusions of law thereon are now before the court.

The Philadelphia, Bethlehem & New England Railroad lies entirely within the City of Bethlehem, Pennsylvania. It connects with the lines of the Reading, the Lehigh Valley, and the Central Railroad of New Jersey, and serves the plants of the Bethlehem Steel Company and other industries. It now has 63 miles of track.

 In 1951 the railroad began the construction of a new yard, the Iron Hill yard, which was to add 13 miles of new track to its then total of 50 miles. Most of the work on the Iron Hill yard was done by contractors the railroad engaged. There were contracts for earth removal, grading, building construction, bridge construction, and the like. The contract for laying the track was let to T. F. Scholes, Inc., on the basis of the railroad's drawing and specifications, modified after preliminary negotiations between the parties.

 In the course of laying the track under its contract with the railroad, Scholes hired George Okolinsky, the plaintiff, as a laborer. Plaintiff's classification was changed later from laborer to truck driver. He drove a Scholes truck, sometimes in and sometimes outside the Iron Hill yard. At other times, still classified as a truck driver, he worked in the yard with Scholes' crane operator unloading rails from a railroad car at places where they were needed for track laying. At all times he was paid by Scholes, was on the Scholes payroll, was, like other similar Scholes employees, a member of the Teamsters' union and not a union of the defendant's employees, and had nothing deducted from his pay for railroad retirement benefits.

 In June of 1953, some eight months after he had been hired, plaintiff was working with the Scholes crane operator, Willison. Willison ordered him to get on a moving railroad car, loaded with rail, and stop it by applying the car's brake. The car had been put in motion by the Scholes crane, operated by Willison, in the course of distributing rail at places where it was to be laid. Plaintiff fell off the car and under it. The wheels ran over both his legs and severed them.

 Whether or not, under the circumstances of each case, an injured person is an employee of a railroad is a mixed question of law and fact: Baker v. Texas & Pacific Railway Co., 1959, 359 U.S. 227, 79 S. Ct. 664, 3 L. Ed. 2d 756; Byrne v. Pennsylvania Railroad Co., 3 Cir., 1958, 262 F.2d 906. 'The test of who has the 'right to control' the activities of the workman is the generally accepted criterion determining employment status.' Byrne v. Pennsylvania Railroad Co., supra, at page 912.

 The specifications, covering 13 type-written pages, deal with a multitude of details, including such minute matters as the spacing of ties and methods of bending and cutting rail. Plaintiff argues that the specifications govern so many details of the work that they deprive the contractor of the right to control the manner in which the work was to be done -- the 'how' of the work -- and that they place the right to control in the hands of the railroad, thereby constituting the railroad the employer both of the contractor and of plaintiff within the meaning of the word as it is used in the F.E.L.A. and the Safety Appliance Act.

 In support of his contentions, plaintiff cites in his brief innumerable provisions of the specifications which prescribe many details of methods to be used by the contractor in laying the track and the order in which various segments of the track-laying operation are to be worked on. He terms them 'how' and 'when' provisions. Among the provisions he cites are these typical examples:


 '(a) Shall be laid with heart side down.

 '(b) Shall be spaced with an average of twenty-four inches center to center.

 '(c) Shall be laid at right angles to center-line * * * as may be ...

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