Earl Warren: Number 485, Raymond P. Ward versus Atlantic Coast Line Railroad. Mr. Rutledge.
Neal P. Rutledge: May it please the Court. This is a case which is here on certiorari to the United States Court of Appeals for the Fifth Circuit which in turn -- which court in turn, affirmed a judgment for the respondent railroad in a case arising under the Federal Employers' Liability Act. The basic question here presented involves the question of whether or not the petitioner, who is the plaintiff below, was injured during the course of his employment by the railroad. Now, there is no question involved in the case, but what the petitioner was a regular railroad employee, that that was his occupation. But the cases of, we submit, they're more than particular significance to the parties involved because it involves a situation which is applicable to the entire railroad industry. And to wit, it involves the question of whether or not, a worker, a regular railroad worker, who is engaged in repairing a sidetrack that is used by a railroad in interstate commerce, but is not owned by the railroad, and which is used by the railroad to service more than one customer, and which sidetrack the railroad has obligated a third party to maintain, not according to any abstract or any concrete standards, but simply to the satisfaction of the railroad in which third party then, in turn, uses regular railroad employees to perform the work on that track, whether or not, where that situation is present, an employee who is injured, under those conditions, is injured in the course of his employment for the railroad. Now, the facts that were presented in this case are very simple and are essentially undisputed except in one area in which there was a very marked and irreconcilable conflict. The facts are briefly that the plaintiff, in this case, was one of a member of a seven-man section crew of the defendant railroad. And that section crew was composed of a foreman, of an assistant foreman and four laborers. The petitioner was the assistant foreman and the crew had a section of the railroad's track in which it had responsibility for -- for maintenance located primarily in Levy County, Florida. And the duties of the crew included and they were spelled out in their -- in the railroad's rulebook and they -- which was introduced into evidence, which was quoted, “It provided that this crew should -- the wording was somewhat ambiguous but it provided that the crew should inspect. The foreman should inspect and was responsible for the proper safety of all tracks, trestles, etcetera (including those privately owned) and so forth. Now, the railroad contended that that rule meant that they simply had a duty to inspect the track. They can have the duty to maintain it. But in any event, the evidence was -- was without dispute that the railroad, in this situation, applicable to a particular sidetrack which the railroad had constructed tying into its mainline road and the track was approximately 1500 feet long. And this track had been built by the railroad and the railroad had charged the M.& M.Turpentine Company, a local customer, for approximately 1350 feet of the track and the railroad, itself, owned and for the expense of constructing 150 feet of the track.
Earl Warren: Another plant say -- to another plant (Voice Overlap) --
Neal P. Rutledge: To -- no. The -- the -- as I understand the situation, Your Honor, there was mainline track.
Earl Warren: Yes.
Neal P. Rutledge: The mainline and then the sidetrack came off it and 150 feet of that sidetrack was owned by the railroad and was maintained by the railroad. There's no question about it was a railroad track.
Earl Warren: (Inaudible)
Neal P. Rutledge: It was the end tying into railroad.
Earl Warren: I just wondered the fact, what to another track.
Neal P. Rutledge: Your Honor, if it drew, it --
Earl Warren: (Inaudible)
Neal P. Rutledge: -- it went into the M. & M. Turpentine track and the evidence was also undisputed that the track was used to service other railroad customers in the area, particularly farmers. This is a -- Levy County is a farming area and huge quantities of watermelon are produced there and this track was used to service the M. & M. Turpentine Company and also to service these local farmers in the area, shipping watermelons out. And the railroad, by a contract with the M. & M. Turpentine Company, obligated the M. & M. Turpentine Company at its own expense, at the Turpentine Company's expense to maintain that track, the portion that the M. & M. Turpentine Company owned and the portion which was being worked on at the time of the accident, to the satisfaction of the chief railroad -- Chief Engineer of the railroad. There were no concrete standards, no specifications or blueprints or anything of that sort. Well, the fact showed that in the spring of 1954 as the watermelon season was coming on and they realized that there will be a lot of traffic on this sidetrack, the foreman inspected it. He came on there and he found it defective. And so, he went to the president of the M. & M. Turpentine Company and he told him it was defective and it would have to be repaired. And the evidence, further, is undisputed that the owner -- the president of the company who was there at the time of trial, told the foreman to go ahead and fix it up in such a way that the railroad would have no objection to put his trains on it.
Charles E. Whittaker: And you say the president of the company, you mean the M. & M. -- the Turpentine Company?
Neal P. Rutledge: Yes, Your Honor.That's right. And they fixed the -- fixed the railroad. Fixed the tracks, so the railroad would have no objection to put its trains on there and at the company's expense and he asked the foreman if he would use his regular railroad section crew to perform this work. That being understood that he would pay them their regular railroad rate of pay at time and a half. Well, the evidence proceeded from that point to show that the foreman, according to the foreman's version, which the jury certainly was entitled to accept in this case and chose to, that the foreman on Friday afternoon, about quitting time, called his crew together and told them that there was some extra work to be done on this track on the McKenzie siding was what they referred to it. McKenzie was the president of the Turpentine Company. And that if they wanted to make some extra money, they could engage in that work and if they didn't have to do it that they -- they could do it on a voluntary basis. And the crew all agreed to perform the work and in the next morning, they met at their regular time, at the regular place, the railroad tool house, took their railroad tools, proceeded out to the siding. The evidence further was the -- by the foreman that the owner, Mr. McKenzie of the Turpentine Company, the president of the Turpentine Company was there, when they arrived there on the scene, but then he didn't stay very long. And as the Court of Appeals, itself, stated in its statement of the -- of the facts, which we don't -- don't dispute, of course, that Judge Tuttle made a very lengthy statement, but he says on page 163 of the record, “McKenzie was present when the men arrived at the job site, but he left soon thereafter and the work was carried out under foreman Keen's direction.” And we submit that there is no controversy in the evidence in the -- in the record whatsoever, that foreman Keen supervised and controlled and directed that work, foreman Keen who was section foreman for the railroad. And that he prepared -- he fixed that track in a way that he and only he knew, would satisfy the railroad.And as he said when he was asked whether or not the turpentine men told him how to do the work, he said, “No.” He said that he knew that I knew more about it than he did. So, we submit that on -- on that state -- state of the record that there is no question or no dispute of what the manner of performing the work was under the control and supervision and direction of the railroad foreman. It had to be by a virtue of the contractual arrangement between the railroad and the Turpentine Company and it was also such in fact. During the course of the work, the plaintiff was injured.
Charles E. Whittaker: But in that sense, I maybe wrong, but you are using the -- the phrase, “railroad foreman” for the purposes of identifying Mr. Keen. Is that not it?
Neal P. Rutledge: That's -- that's right, Your Honor. And also for the purpose of saying that in performing his work, he was wearing the hat of the railroad.
Charles E. Whittaker: But do you mean to say that it's agreed, he was serving them in the capacity of employee of the railroad?
Neal P. Rutledge: No. It's certainly is not so agreed and I couldn't say that it was. I'm sure Mr. --
Charles E. Whittaker: That's why I wanted to be sure.
Neal P. Rutledge: Certainly. Thereafter, the plaintiff was injured during the course of this work and later brought this suit and, of course, the question arose as to whether or not, he was injured during the course of his employment. At the conclusion of the trial, the plaintiff, petitioner, made two alternative requests for instruction. First request was that the -- taking first the request that he made was to the effect that the court should charge the jury as a matter of law, under these undisputed facts. That the petitioner was injured in the course of his employment for the railroad and the second series of request were charged, primarily request number two, was to the effect that if the court denied that peremptory request, that the court should then charge the jury concerning the usual criteria governing whether a man is working for one employer or another to wit, the criteria which this Court recently referred to in the Baker case, which is cited in our brief and has been set forth by the -- in the restatement. And the -- of course, the primary criteria that is referred there, is that the criteria of controlling or supervising or directing the manner of the work and the power to control it. The court denied both of these requests and instead, submitted the case entirely to the jury on the sole question of whether or not, it had, in fact, been told to the plaintiff before he went to work, which the plaintiff denied. That if he went to work on that track, he would not be working for the railroad, but would be working for the Turpentine Company and the Court deciding that if the plaintiff was so told that he would not be working for the railroad, then he would -- not working for the railroad when he was injured. On the other hand, that if he was merely directed in order to go out there without having the situation explained to him, why then he would be working for the railroad? Now, the jury returned on the basis of that instruction, returned a verdict for the defendant railroad. Turning first to the question as to whether or not the petitioner was in fact and as a matter of law, an employee of the railroad when he was injured, under the undisputed facts, our argument is primarily three-pronged. First, we contend and if cited at series of decisions primarily in the lower court, holding that in lower federal courts, construing the Federal Employers' Liability Act, holding that the -- where it appears conclusively, that the railroad has control of the work that in that situation even where an independent contractor or one who is been labeled an independent contractor is hired to do the work. But nevertheless, the railroad will be deemed the employer and the particular case, the landmark case, in that regard, is the Cimorelli case, which is cited in our brief, where the railroad hired an independent contractor to perform certain loading operations. And it -- the contract that the railroad made with the contractor expressly provided that the contractor would be an independent contractor. And the contract further provided however, that the work should be done to the satisfaction of the railroad, which is the same situation we have here. And under those circumstances, the Court of Appeals ruled as -- that the -- that an employee of the independent contractor, so-called, was actually under the control of the railroad at the time that he was injured, because the railroad was controlling the manner of the work being done. And then accordingly, he was entitled under the Federal Employers' Liability Act to bring suit for injuries received during the course of such employment.
William J. Brennan, Jr.: (Inaudible)
Neal P. Rutledge: That's right.
William J. Brennan, Jr.: Considering --
Neal P. Rutledge: That's right, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Neal P. Rutledge: Exactly, Your Honor, precisely. We'd -- we so phrased our -- our request for instruction in the alternative and we've -- we've taken before the Court that way. He denied both sets of request. And the Court of Appeals took up and discussed and considered at length, both propositions. We -- we submit that this element of -- of control here, particularly the power to control, appears conclusively from the fact that the contractual arrangement between the railroad and the Turpentine Company, concerning this track, was that the work be done to the satisfaction of the Chief Engineer of the railroad and the only way that work could be done, would be under the control of the railroad, where the contract is made with that type of vague language, because nobody could know exactly what would or what would not happen to satisfy the railroad's Chief Engineer. In short, we say that where -- where there is a sidetrack which is used in interstate commerce and the railroad, in this case, stipulated in the trial court, this sidetrack, this particular sidetrack was used in interstate commerce. That where you have a sidetrack that is used in interstate commerce by a railroad to service not just one customer, but several customers in the area and where that -- where the railroad obligates a third person to maintain that track to the satisfaction of the railroad's Chief Engineer by a contractor and where the contractor, then in turn, hires regular railroad section crew to perform the work on that track. And where that work is done with regular railroad tools at regular railroad rates of pay, under the supervision of the regular railroad foreman that is a matter of law, a person in that situation is an employee of the railroad under the Federal Employers' Liability Act as a matter of the Federal Law. Turning next to the second basis for that contention, we relied in the Court of Appeals. The case had not come down at the time of trial on the Sinkler decision. Holding that even if there was a factual dispute here as to the amount of control, or even if under common law standards, the M. & M. Turpentine Company here, could not be deemed an agent of the railroad. That nevertheless, under the Sinkler decision of this Court, under the trust of the Sinkler decision, that the M. & M. Turpentine Company, in this type of situation, should be deemed an agent of the railroad. And that accordingly, where he'd use regular railroad employees to do the work, those employees did not lose their status as such. In other words, those employees would then either be working for the railroad and consequently covered by the Federal Employers' Liability or working for an agent of the railroad and consequently be covered. We submit that that's the case because here, this was regular, ordinary maintenance work. It wasn't new construction. It was not extraordinary repairs of a major type, which one would be expected perhaps to use an independent contractor on. It was a regular recurring maintenance work on a track which the railroad used in interstate commerce. And at such regular recurring maintenance work, is an operational function of the railroad.
Earl Warren: Does the record show that uniformly the Turpentine Company had used its railroad employees to maintain the track?
Neal P. Rutledge: Your Honor, I submit, it does. There were repeated references to the fact that this was an established practice, that this -- this crew regularly worked on Saturday for the various -- working on these various private siting. And that they had worked before on this particular siting, under this type of arrangement.
Charles E. Whittaker: Does it show what you had paid them and what the details were in the former instances?
Neal P. Rutledge: Not in the former instances, Your Honor. Except, I believe, it was undisputed that in each case, the Turpentine Company as it was obligated to do by its contract with the railroad had paid the workers. What it had done was a -- would issue a check to the foreman for the total amount of the wages. The foreman would take the check and cash it and pay the crew off in cash. Now, of course, when they worked for the -- for the railroad in the sense that on their regular work during the week, they got paid by a railroad check, there is that difference in the -- in the way that the men were paid. And there's no question that the economic burden here was on the M. & M. Turpentine Company. Now, when the track was constructed, it was constructed by the railroad. And then, the railroad built the Turpentine Company for the cost of it. Not here, its main --
Charles E. Whittaker: For the cost of the 1350 feet of it.
Neal P. Rutledge: Exactly.
Charles E. Whittaker: That's on the private property of Turpentine Company?
Neal P. Rutledge: That's right. Actually, the record shows that the property itself was owned by Mr. McKenzie. And that the Turpentine Company, of which he was president, was also substantially his company, but the contract was between the railroad and the Turpentine Company. The plaintiff, the petitioner, stated that he didn't know who owned the track. In any event, we -- we submit that under one by virtue of the fact to control that as a matter of law, he was an employee. And secondly, that by virtue of the fact that this Court's decision in the Sinkler case, the -- regardless of whether there was enough control to make it a question of law that under the Sinkler decision, the Turpentine Company should be deemed the agent of the railroad and that accordingly, this man as a matter of law, was in the course of his employment. Finally, our second point is that moving on, even though -- even though the court rejected our contention that the man, as a matter of law, was an employee of the railroad. That the court still erred, still committed further error. And that the court submitted the question for whom the man was working to the jury solely on the question of what was told him and refused to charge the jury on the other criteria which the reinstatement states in the Baker case to wit, control a form of payment, rate of pay, tools and all the other criteria which governed the usual familiar problem, which arises whenever there is an ambiguous situation about for whom a man is working.
William J. Brennan, Jr.: (Inaudible)
Neal P. Rutledge: Yes, it was, Your Honor. Our request is contained in the record, particularly request number two. And the Court stated that -- stated it had no disagreement with the law expressed in the request, but that he thought it would be confusing to the jury and that he'd rather give his own charge. And he submitted that -- he submitted it to the jury entirely on the basis of what had in fact been told to this employee.
William J. Brennan, Jr.: (Inaudible)
Neal P. Rutledge: Certainly, it's had -- now, we certainly contended in the court below, very strongly, that if the point, that if as the petitioner testified, had happened. That the foreman had simply on Friday told him, “We've got some extra work to do.You'll be paid overtime.Report to work out there at the siting.” That clearly, he was working for the railroad, at that time, because the railroad couldn't order him to do the work and then denied that it was employing him. But we -- we also vigorously argue that the converse did not apply. That the mere fact that they told him that he was working for the M. & M. Turpentine Company didn't actually and completely control the situation. We submit, you could tell a man that he's working for your agent and he's still, as a matter of law, would be working for the railroad.
Charles E. Whittaker: Do you think -- may I ask you, is that all the court did in -- is trying to determine as a predicate to a defense verdict, namely, it required -- requiring that the man, the petitioner, had been told that he was working for someone else?
Neal P. Rutledge: Yes, Your Honor. I think that's correct.
Charles E. Whittaker: Do you think that's what the language set forth by the Fifth Circuit during at page of 167, the (Inaudible)
Neal P. Rutledge: The language in the footnote, Your Honor?
Charles E. Whittaker: In Footnote 10. Certain portions of the court's charge concerning the requirement issue were (Inaudible)
Neal P. Rutledge: I -- I think so, yes, Your Honor. That the railroad was liable unless the defendant's foreman made it clear to him before he started to work that morning that they were not working for the railroad, but working on a private track to make some extra money.
Charles E. Whittaker: Now, do you think made it clear to him has the same significance as told?
Neal P. Rutledge: I certainly -- I -- I think what the Court was -- was getting at was what the petitioner himself understood at the time. I suppose --
Charles E. Whittaker: Now, you went ahead and you said to the court to the presence of the jury, “Your Honor, to make it clear, he was working for some third person, not working for the railroad.” And the court said, “Yes, sir.” That is the word, I believe, you suggested. That he was working for some third person. Now, the foreman had -- had to make it clear to him that he was working for some third person and not the railroad. I thought you said that, but I guess there is no doubt as much as he wanted, but I want to make that clear to you, he was speaking to the jury there, wasn't he?
Neal P. Rutledge: Yes, he was, Your Honor.
Charles E. Whittaker: That if you find in this evidence that he was so advised before he went out there to work and went out on his own volition and joined the others to make some extra money and he was not an employee of the railroad and you would and they would not be liable and so forth. That's the charge and this is a fair statement of the charge?
Neal P. Rutledge: Your Honor, I don't -- I -- I think, this is not the complete charge on the employment issue and the reason that I stood up at that point, which is at the conclusion of the charge and the objective was because, it seemed to me, that the judge was telling them that if he understood that he was working on a private track, why then, he wasn't working for the railroad? And I didn't think that to be an accurate statement, because I didn't think it matters whether he understood his -- who owned the track. Thank you.
Earl Warren: Mr. Dell.
Sam T. Dell, Jr.: Mr. Chief Justice, may it please Your Honors. Justice Whittaker, I would like to develop further, the question that you just brought up with counsel and that it is our contention and always has been. They're vigorous -- that the trial court did not submit the case to the jury solely on the issue of whether or not, the petitioner had been told by foreman Keen that he would not be working for the railroad that day. The trial court went further and you will find at two places in the trial court's instructions to the jury on the page 144 and 145, which Your Honor has already identified as well as on page 153 of the record where after the jury had left the bar of the court, under instructions of the court to retire and consider their verdict, they were recalled into the courtroom and at petitioner's request, the matter was again reemphasized in the language of the trial judge when he made it clear to them that they not only had to find that the petitioner was told by foreman Keen that he would not be working for the railroad, but they had to go one step further and find that the petitioner understood that he was working for a third party. And that is the point that we argued with all of the emphasis that I could master before the Circuit Court of Appeals in -- when I said, there as I would like to say here that the trial court put a double barrier in between the railroad and its ultimate jury verdict when it said, “You must find that he was not only told, but that he understood that he was not working for the railroad, but was in truth, in fact, working for a third person.” The respondent conceives --
Earl Warren: Did he use the word as he understood?
Sam T. Dell, Jr.: Mr. Chief Justice.
Earl Warren: I'm looking at page 153, as to the first.
Sam T. Dell, Jr.: Yes.
Earl Warren: You said in --
Sam T. Dell, Jr.: The foreman had made it clear to him that he was working for some third person and not the railroad. I thought I had said it, if you -- and it goes on, “If you find from the evidence that he was so advised before he went out there to work and he went out of his own volition and joined the others to make some extra money, then he was not an employee of the railroad and they would not be liable.”
Earl Warren: What record page is that?
Sam T. Dell, Jr.: Beg your pardon, sir.
Earl Warren: What record page?
Sam T. Dell, Jr.: 153. I was reading from at the top of the page starting “The foreman had to make it clear.” Now, the respondent conceives that the crux of this case is whether the maintenance of a privately owned spur track located on privately owned property, for the convenience of the private owner, is a vital operational activity of the railroad so as to preclude the railroad from delegating that responsibility of maintenance to the third party owner of the track. No decisions of any state or a federal court have been found nor are any cited in the petitioner's brief, which hold that the doctrine of non-delegable duty should be applied to the maintenance of a purely privately owned sidetrack rather, the decisions in this field have uniformly applied the test that the doctrine becomes applicable only when the evidence demonstrates that the function being performed constitutes a part of the railroad's total enterprise, vital to its operational activities and essential to it in the exercise of the obligations of its franchise. This Court has held that some functions of a railroad which are defined as vital operational activities or the maintenance of the mainline tracks, the strengthening and stabilization of tracks along mainline rights of way and the switching of cars in terminal areas. No case has been found and no case has been cited which holds that it is the duty of a railroad to maintain a purely privately owned spur track and that duty cannot be delegated to it to the owner, because the maintenance of such track constitutes a vital operational activity of the railroad to whose line it connects. I think it is a common knowledge that railroads everywhere, in rural areas, provide the necessary sidetracks and spur tracks on its own right of way for the purpose of facilitating the loading and unloading of freight by its customers in those areas. Here, this private spur track, Mr. Chief Justice, was located on the land that was owned by the M. & M. Turpentine Company. It was built by the railroad at the Turpentine Company's expense, at the Turpentine Company's request and the record will show that no person used this railroad spur track other than the M. & M. Turpentine Company's own employees or their own people or except on the expressed consent of the president or executive officers of the M. & M. Turpentine Company. Now, it's true that 150 feet approximately, of this spur track was located on railroad property. That railroad property was that part of the railroad mainline right of way on which this spur track extended as it left the mainline track of the railroad to get to the common property line of the M. & M. Turpentine Company and then to go forward into the M. & M. Turpentine Company's property to serve the lumber mill and the Turpentine steel, thereon located.
Earl Warren: Suppose, Mr. Dell, this (Inaudible)
Sam T. Dell, Jr.: Your Honor, let me [Laughs] correct your statement in just one thing. They did not make the arrangement with the railroad. We very vigorously deny that that arrangement was made with the railroad, true. They're under the condition of a contract in which the sidetrack was initially -- the spur track was initially laid, the owner undertook the responsibility of its maintenance. Now, in your case that -- that you cite, in -- the sidetrack had been laid on a long land that was common boundary to several industrial firms, then it is conceivable, that the railroad could have made an agreement with all of them that they would build the railroad's spur track on their -- their properties, but that each of them would have to keep the track in proper maintenance.
Earl Warren: (Inaudible)
Sam T. Dell, Jr.: In front -- in front of their property. Yes, sir. And if anyone of them failed to do so, then the railroad would not get us upon that track with its trains for the reason that it owes, of course, to its equipment and its personnel, the obligation not -- not to take it across or them across dangerous track. So, the only obligation that the railroad have was to inspect the M. & M. Turpentine Company track to be sure that it was safe for the operation of its trains. And if it was so safe for the operation of its trains, then they could go over it. But it's -- I think the important here for me to reemphasize the point that this track was never used by shippers in the area without the prior consent of the M. & M. Turpentine Company. The Railroad Company recognized the complete and absolute ownership of that track by the M. & M. Turpentine Company. All the members of -- of the crew that worked out there that day understood that it belonged to the M. & M. Turpentine Company. They knew that it was a privately owned track and the testimony in the record is replete and uncontradicted that they never worked on privately owned spur tracks or sidetracks, except on the days when they were not in the course of their regular employment with the railroad, to wit, on Saturdays, their regular day off. They were just as free to have gone to the watermelon fields and work picking or loading watermelons on track lines on Saturday as they would have been to work on the M. & M. Turpentine Company track. The foreman told and they testified that they understood as just all the members of that crew except the petitioner that they were working for a third party. They all knew and understood that it was a privately owned track. They all knew and understood that they did not have to work, unless they wanted to work for the purpose of making extra money. And they all knew and understood that if they did not work, if they did not agree and voluntarily go out on that track that Saturday morning, then it would in no way influence, affect or jeopardize their job with the railroad in any respect, whatsoever. The evidence discloses that the circumstance in this case obtains exactly to that, which I eluded to a moment ago as being common knowledge among all men that railroads generally provide these unloading facilities on their own tracks in rural areas for the benefits -- benefit of their customers. And how can it be said or seriously contended that the maintenance of a privately owned spur track, the use or non-use of which can have no practical affect upon the railroad's total enterprise or the fulfillment of its franchise obligations, should impose upon the railroad a non-delegable duty for its maintenance. If it was not a part of a total enterprise, if it's not a part of the railroad's obligations to the public under the franchise which it holds, then how can it be a vital operational activity that was defined and promulgated by this Court in the Sinkler decision? This Court has recognized, in other cases, the right of a carrier to avoid liability under the Federal Employers' Liability Act by delegating to independent contractors various functions of the railroad which are certainly more enterically, a part of the carrier's obligations of franchise, or its total enterprise than the one presented in this case. I refer to one case, the Bond case, Chicago Rock Island & Pacific Railroad versus Bond where this Court recognized the right of a carrier to delegate to the independent -- to an independent contractor the right to load and unload coal on its locomotives at one of its terminals. And held that an employee of that independent contractor who was hurt while loading and unloading coal on the locomotive, belonging to the railroad, was not within the employ of the railroad so as to avail himself of the Federal Employers' Liability Act. We contend that the maintenance of the privately owned spur track in this case constitute a -- constituted or constructed on privately owned property under the circumstances, here present, can be lawfully delegated by the railroad to the spur track owner and the United States Court of Appeals for the Fifth Circuit so held and we feel that that decision is in accord with every decision of this Court on this subject. Now, I think it's important for us to review for a moment the undisputed facts in this case, which are material to the issue of whether or not, the petitioner was working for the railroad or as its employee or whether it was working for the -- an agent of the railroad. The evidence is undisputed, discloses that the spur track was built by the respondent for the Turpentine Company. The land on which the spur track was laid was privately owned and the spur was built at the expense and for the convenience of the private owner. That no other shipper use the track without the owner's consent. The spur connected with the railroad's tracks was used in the interstate commerce. The work was being performed on Saturday by some of the members of the section crew on their regular day off. The section crew had completed its normal 40-hour work week the night before. Tools belonging to the railroad were used with the acquiescence of the management of the railroad on these days that they worked on private sidetracks and on this -- on the Saturday morning, herein question, all of the employees went to the site of the job in their own private automobiles. Every other time that they worked for the railroad, they went to the site of the job on the railroad's motor car. The men working for the -- on their privately owned track were always paid by the owners of the -- of that track and on this instance, will pay it in cash. The men when working and receiving their pay for the railroad were always paid by railroad check, which they received twice each month. The owner of the privately owned spur track furnished the crossties which were used by the crew to repair the track and Mr. McKenzie made the arrangements with Mr. Keen to have the work done and Mr. --
Earl Warren: (Inaudible) used for its own purpose.
Sam T. Dell, Jr.: So far as the record discloses Your Honor, it -- it had not. Mr. -- the record disclosed that Mr. McKenzie, the owner of the track, particularly in watermelon season, let other shippers use the track. And as a result of that, Mr. McKenzie being a frugal and smart businessman, required these watermelon shippers to put up the money with which to repair the tracks so to the fact that served the M. & M. Turpentine Company for the rest of the year and the watermelon shippers during the watermelon season and the record will -- will show that. The facts in each of the cases cited by the petitioner to support his contention that he was, at the time of his alleged injury, an employee of the respondent, disclosed that the injured employees were, at the time of their respective injuries, actually working for the defending railroads or actively engaged in the furtherance of -- of essential operational activities of the railroads as the employees of independent contractors engaged by the defending railroads for that purpose. Now, I am simply overwhelmed by counsel's insistence that this case is controlled by the decision of this Court in the Sinkler case. Counsel suggests that under the thrust in -- of Sinkler that the M. & M. Turpentine Company should be held as the agent of the railroad. I'm not sure that I understand in legal terms what the word thrust means, but I assert that -- that thrust -- that counsel talks about is not sufficient to launch his missiles because under the doctrine and the rationale of the Court's decision in the Sinkler case, there was no showing in this case that what this crew or this man was doing on his day off was a vital operational activity of the railroad, so as to bring him within his intended thrust. The Sinkler case, as we all know, involved an injury to an employee of the railroad who was actually, at the time of his injury, working in the course of his employment as a cook on the car, the private car, of the general manager of the railroad. That car was being shifted in the terminal area in Houston, Texas by the Belt Railroad, an independent contractor. The stock of which was largely owned by the railroad which was being sued. And the Court held that the negligence of the employees of the Belt Railroad in jarring the car in which Sinkler was then engaged in following his obligations of his job with the defending railroad, was such that it could be imputed to the railroad for the reason that the shifting of cars or the switching of cars in its terminal area at Houston, Texas was a vital operational activity. And, I believe, if Your Honors please that Justice Brennan in writing that -- that opinion, referred at least three, if not four, times to the language vital operational activity in defining what the switching of cars were in the terminal area of the railroad in Houston, Texas. Now, in the Baker case, that case came out of Texas and was recently decided by -- by the Court and there, the employee was the employee of an independent contractor employed by the defending railroad for the purpose of grouting along its mainline right of way, stabilizing and strengthening the roadbed along its mainline, certainly, a function which is essential to the operation of the railroad and certainly an obligation which the railroad must perform to live up to the responsibility of its franchise. However, I feel that the only thing that this Court really decided in the Baker case was the fact that when you have conflicting evidence on the issue of employment and then that the trial court should submit that issue to a jury for proper determination. We have no quarrel with that principle of law.We think it's sound. It's followed probably in every State in the United States and throughout all of the federal courts that wherever, the matter is a question of fact and there is conflict on that question of fact, the only trials, the only jurisdiction where that can be determined was -- is within the province of the jury. In this case, the respondent's evidence showed that the petitioner along with other members of the crew were -- were told before they undertook to repair the privately owned spur track on their day off. That they would not be working for the railroad and that the railroad would therefore, not be responsible for their safety. The respondent's evidence further disclosed that the men working on that Saturday morning including the petition (Voice Overlap) --
Charles E. Whittaker: That's not admitted, however. That's -- that was denied by the plaintiff, wasn't it?
Sam T. Dell, Jr.: Absolutely. He had to deny. Otherwise, we would have been entitled to a directed verdict, as a matter of law with our position, Mr. Justice Whittaker. And because they voluntarily agreed to perform that work, they did so for the purpose of making some extra money and they agreed on the time when and the place where they were going to meet the following morning to do the job and --
Earl Warren: Supposed the -- supposed it's been entered by some defective tools?
Sam T. Dell, Jr.: That would have raised an entirely different question.
Earl Warren: (Inaudible) has been liable.
Sam T. Dell, Jr.: I don't think so. I don't think under that case, but even then, Your Honor, that would've raised a -- a different question because even though they were using the railroad tools by and with the acquiescence of the railroad manager, the testimony in the record is positive to the effect that the tools were in good first class shape at the time --
Earl Warren: I'm only suggesting the fact --
Sam T. Dell, Jr.: No, sir. I know you weren't, but I [Laughs] would -- I wanted to take that opportunity to make that additional point. All of evidence, of course, was -- all of these evidence about -- about volunteering the work and -- and going out there to make some extra money and that he knew or that he was told that -- that he was going to be working for a third party, he denied, but the jury, under appropriate instructions from the Court, found against the petitioner and returned its verdict for the respondent, thus, making a determination of fact that the petitioner was not, at the time of his alleged injury, an employee of the respondent working in the course of his employment.
Charles E. Whittaker: May I ask you sir, was there any exemption taken to the recharge of the jury after -- at counsel -- what petitioner's request during (Inaudible)
Sam T. Dell, Jr.: No, sir.
Charles E. Whittaker: Then the accepting taken by the petitioner that recharge?
Sam T. Dell, Jr.: The petitioner asked for it.
Charles E. Whittaker: I know he asked for it and got -- and --
Sam T. Dell, Jr.: No, sir. But there was no exception --
Charles E. Whittaker: No exception --
Sam T. Dell, Jr.: -- then because the -- the court, in effect, did exactly what the counsel for the petitioner asked him to do and that was to spell it out from the jury once more that they had defined that the petitioner knew that he was working for a third party and not the railroad.
William J. Brennan, Jr.: Because there wasn't this, after the trial judge had refused the request of charge in a broader form?
Sam T. Dell, Jr.: Yes, sir. He -- he refused the requested charges the afternoon before during -- during the conference in his -- in his chamber.
William J. Brennan, Jr.: And the substance of what the judge charged (Inaudible) and called juries was why he had earlier said in refusing the request?
Sam T. Dell, Jr.: Yes.
William J. Brennan, Jr.: There's a limit to which he would charge, but if the --
Sam T. Dell, Jr.: That's right, sir. He said that he would cover it and he told them, I believe that he would give -- he would not give the charges as requested, but that he would give -- give substantially or give a charge that would cover it.
William J. Brennan, Jr.: Well, I -- I (Voice Overlap) --
Sam T. Dell, Jr.: They object -- --right to -- Mr. Rutledge and rather, under those circumstances, he could not very well have accepted them to the --
Sam T. Dell, Jr.: No, sir. Because he got exactly what he asked for and I thought he got a little too much.
William J. Brennan, Jr.: Did he get what he asked for or --
Sam T. Dell, Jr.: Yes. He -- well, he got it what he -- he asked for from the court, but not the jury. That's -- that's -- yes, sir. And in this Margue case that they -- they cite, the injured employee was that at the time of his injury, working for an independent contractor employed by the defending railroad to maintain its tracks, roadways and structures of -- are function which the United States Court of Appeals for the Sixth Circuit determined to be essential to the exercise of its franchise rights. In addition to that case provided that the defending railroad could terminate on 24 hours notice and take possession and control of the work. I feel that of -- this brief review of the factual aspects of the cases upon which the petitioner relies in contracts with the facts developed at the trial of this case brings into sharp relief, the facts that each of the cases cited by the petitioner can be readily distinguished from the case at bar, because each has two practical elements in common as the basis of the rationale of the Court's decisions. In each case cited by the petitioner, the defending railroad had firstly, employed the independent contractor involved. And secondly, delegated to the independent contractor employed, the performance of a function which was essential to the exercise of its franchise rights. In this case, the owner of a spur track, not the railroad, engaged the petitioner on his day off. And in this case, we feel that it cannot be seriously contended that the maintenance of a privately owned spur track located on privately owned property for the convenience of a third party constitutes a function vital to the operation -- rough operational activity of the railroad. In the two minutes or so remaining to me, I'd like to address myself to the question of whether the trial court erred in refusing petitioner's requested charges concerning the criteria which are usually applied in determining which of two parties is a given individuals employer at a given moment. The petitioner endeavors to support his contention on this issue with some cases involving the borrowed servant doctrine and with other cases involving the incident of employment doctrine. When an employee is in -- is loaned by one employer to another without the knowledge or consider the employee, it is obvious that consideration must be given to the standard yardsticks of employment to determine whether or not the employee has, in fact, changed the employer, just as those same yardsticks of employment must be used to determine whether an employee who is not injured or who is injured while not in the performance of actual duties for his employers, nevertheless, to engage in some activity which his regular duties require. The testimony of the respondent's witnesses who worked on the spur track on that Saturday morning confirmed the fact that they and the petitioner were told that they would not be working for the railroad that day. And that they and the petitioner voluntarily agreed to repair the privately owned sidetrack in order to make some extra money. The petitioner denied these facts at the trial and this direct conflict in the testimony made a clear cut issue for the jury and the trial court reduced the issue of employment to the question of whether the petitioner knew he was working for some third person and not the railroads when he was injured. In his charge, the trial court admonished the jury that before he can return a verdict for the railroad, it would have to find first, that the petitioner was not working in the course of his employment by the railroad at the time of his injury. And second, the petitioner knew he was not working for the railroad, but was actually working for some third party. By so charging the jury, the trial court resolved all of the circumstantial evidence relating to the issue of employment in favor of the petitioner. So if the trial court committed error, that error was committed in petitioner's favor. We submit that the petitioner has had his day in court including a trial by jury under proper instructions relative to the issue of employment. That the only question which the court did not resolve and -- the trial court did not resolve in the petitioner's favor was whether the parties had made an agreement that the petitioner would work for the railroad or an agreement that he would work for some third party. The facts in this case set it apart from all previous cases decided by this Court. And in my opinion, conclusively show as a matter of law, that no vital operational activity of the railroad is here involved. I respectfully urge that the petitioner's writ be dismissed and that the judgment of the Fifth Circuit Court of Appeals be affirmed. Thank you, Mr. Chief Justice.
Earl Warren: Mr. Rutledge.
Neal P. Rutledge: I -- I have nothing further, Your Honor.
Earl Warren: Very well.