'These Specifications cover furnishing (by the contractor) of all necessary supervision, tools, equipment and labor * * *'
This provision, by requiring the contractor to furnish supervision, takes away rather than confers on the railroad the power to control the contractor's employees.
No provision of the specifications empowers the railroad to come in and direct any workman of the contractor as to what work he is to do at any particular time, or how he is to do it, or to direct him to stop this work and do something else, or to direct him to do work at a different place, or when to report for work and when to quit, or to take a day or a week off, or to discharge him. Even though under the specifications the railroad has the right to have incompetent employees taken off work they could not handle, the specifications give the railroad no right to control the activities of the contractor's employees and lend no support to plaintiff's contention that they do.
'If the contract language is contrary to the true relationship between (the contractor) and the railroad it of course does not govern,' Del Vecchio v. Pennsylvania Railroad Co., 3 Cir., 1956, 233 F.2d 2, 4. Plaintiff contends that this principle applies and relies on certain happenings during the construction of the Iron Hill yard to establish his contention that the railroad in fact not only had the right to control the activities of Scholes workmen, but that it exercised that right, and that this exercise of control shows the true relationship between the railroad and the contractor.
When plaintiff suffered his injury, the Scholes organization had been at work on the Iron Hill yard for about a year. During all that time Scholes' workmen were taught, directed, and controlled by foremen and other supervisory personnel of the Scholes organization, to the exclusion of railroad personnel. Plaintiff established that during that time there were some four or five instances in which Scholes made a crane and a few employees available to the railroad. They were made available to the railroad to lift levers for a railroad track scale, to move a track so that the railroad could maintain service to one of its customers, to unload wire fence, and to lift a track covered up by a small slide of earth. The duration of each of these small jobs was a matter of a few hours at the most.
The value of the small jobs and the amount of time required for them were both so insignificant in comparison with Scholes' entire track-laying project, that even if on these small jobs the railroad did give orders directly to Scholes' workmen as to how the work was to be done, that would not establish plaintiff's case. The mere fact that the injured person may have received directions from the railroad with respect to some aspects of his work will not constitute him a railroad employee: Docheney v. Pennsylvania Railroad Co., 3 Cir., 1932, 60 F.2d 808. Comparing the orders given by the railroad directly to Scholes' workmen on these small jobs with the many aspects of the track-laying project on which the railroad did not give direct orders to them, it is clear that no right to control can be found.
Plaintiff produced testimony tending to show that on some of these small jobs railroad personnel gave orders or instructions to plaintiff and other Scholes employees. This evidence was not precise,
and since one or more of the Scholes supervisors or foremen was always present, it cannot be said definitely whether the instructions or orders were given to the supervisors or foremen as suggestions or directly to the workmen as orders. Much of this evidence was denied by defendant's witnesses. The testimony on this subject is uncertain to a degree because it frequently involves the use of the work 'instructions',
an ambiguous term capable of meaning either 'commands' or 'teachings.' For this reason much of the evidence on this point is so ambiguous as to be of little value, and no finding of fact can be made to the effect that even on these small jobs the railroad gave orders as to the manner in which Scholes employees were to do their work.
It is noteworthy that the injury to plaintiff occurred while he was doing track work for Scholes, and not while he was on one of the small jobs for the railroad. Plaintiff, moreover, was not the skilled operator of the crane, typical of 'loaned employee' cases, but acted as a 'hooker', fastening loads to the crane's tackle and unfastening them.
Plaintiff has laid stress on the fact that from time to time the railroad exercised control by directing Scholes supervisors when and where track work was to be done and by having work stopped at one place and begun at another. On two or three occasions the railroad's field engineer, Church, told Scholes supervisors that the railroad wanted certain parts of the Iron Hill yard completed, to fit in with work being done by other contractors or by the Reading Railroad. Scholes complied. These directions had to do with the time and place where portions of the work were to be done and did not constitute control of the manner of doing the work. This is similar to the situation of a man who engages a contractor to build him a house and a garage, and for the sake of personal convenience has the contractor finish one structure before the other. This degree of control is not so pervading as to reduce the contractor to the status of an employee. See Vaughan v. Warner, 3 Cir., 1946, 157 F.2d 26, which held that the power of a theatre owner of very the duration of a vaudeville act and the time during the program when it was to be performed did not constitute the performer an employee of the owner.
There is no evidence that the purpose or intent of the defendant railroad was to exempt itself from the F.E.L.A. Hence Section 5 of the Act, 45 U.S.C.A. §§ 55, having to do with evasion, does not apply.
I find that plaintiff was not an employee of the defendant railroad. Detailed findings of fact and conclusions of law are filed herewith.