Restatement (Second) of Agency § 227; working for two masters simultaneously theory; Restatement § 226; and, the theory that the plaintiff is a subservant of a company that is in turn a servant of the railroad, Restatement § 5(2).
Any determination along the lines of the latter two principles would not be relevant to the issue in this case. The issue here is not whether the defendant Railroad controlled and directed Atlantic and Gulf employees in the performance of the contract entered into between the defendant Railroad and Atlantic and Gulf Stevedores, Inc. The issue is whether defendant Railroad controlled and directed the plaintiff in the act of moving a gondola-car, which act was outside the scope of plaintiff's employment with Atlantic and Gulf, so as to make the plaintiff an employee of the defendant Railroad under the "borrowed servant" principle. The test, therefore, is whether the defendant Railroad had immediate control and direction over the conduct of the plaintiff at the time of his accident. See, Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 6, 83 S. Ct. 1667, 1671, 10 L. Ed. 2d 709, 714 (1963); Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 53 L. Ed. 480 (1909).
Both the plaintiff and Egan were employed by Atlantic and Gulf Stevedores, Inc. which maintained control over the hiring, payment of wages, termination of employment and supervision as to place of work of all its employees; criteria indicating the lack of any control over Atlantic and Gulf employees by defendant Railroad generally. Tarboro v. Reading Co., supra, at 943.
Plaintiff's participation in the movement of the gondola was upon direct compliance with the direction of Egan, an Atlantic and Gulf supervisor.
No Penn Central employee moved or in any manner directed the movement of the gondola in question. No employees of the defendant Railroad were present on Pier 40 at the time of plaintiff's accident. In fact, it appears that if plaintiff and Egan had waited until the defendant Railroad supplied an engine, plaintiff would not have been injured. The movement of rail cars by Atlantic and Gulf employees on Pier 40 on other occasions as well as on February 7, 1971, was done for the benefit and accommodation of Atlantic and Gulf. If such rail car movement also benefitted the defendant Railroad, the benefit was voluntarily provided by the Atlantic and Gulf employees as an indirect accommodation to the defendant Railroad and did not represent a demonstration of the railroad's right to control the conduct of the Atlantic and Gulf employees. See, Robinson v. Baltimore & Ohio R. Co., supra, 237 U.S. at 93, 35 S. Ct. at 493, 59 L. Ed. at 853, and Shenker v. Baltimore & Ohio R. Co., supra, 374 U.S. at 7, 83 S. Ct. at 1671, 10 L. Ed. 2d at 714.
Plaintiff was at all times under the direct supervision and control of Atlantic personnel and was not, at the time of his accident, under the supervision, direction or control of the defendant Railroad.
Having failed to establish that he was under the direction, supervision or control of the defendant Railroad at the time of his injury, plaintiff has not shown that he had the requisite employment status within the meaning of the FELA.
The Court finds that there is no genuine issue as to any material fact regarding the plaintiff's employment status, therefore, defendants' Motion for Summary Judgment is Granted.
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