Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
This suit, based first on the Federal Employers' Liability Act, 35 Stat. 65-66 (1908), as amended 53 Stat. 1404-1405 (1939), 45 U.S.C.A. §§ 51-60 and second on the Wrongful Death and Survival Statute of the State of Delaware, 10 Del.Code Ann. § 3704 (1953),*fn1 was brought by Irby's administratrix to recover damages for his death which occurred on January 7, 1953.
It is clear that at the time of his death Irby, an electrical engineer, thirty-two years old, was an employee of Westinghouse Electric Corporation. He was killed while working on one of four electric locomotives, built by Westinghouse and purchased from Westinghouse by the defendant, the Pennsylvania Railroad Company. The locomotive in which Irby was killed was in the car shops of the Railroad at Wilmington, Delaware. His death occurred shortly after he entered a switch compartment in the middle of the locomotive. Although it is not clear how the accident occurred, the jury found that Irby was killed both by electrocution and asphyxiation.*fn2
The plaintiff administratrix alleges that Irby was an employee of the Railroad and asserts that therefore the Federal Employers' Liability Act is applicable. The operative facts which support the plaintiff's position are as follows:
The electric locomotives were the property of the Railroad, title to the locomotive upon which Irby was killed having passed to the Railroad November 7, 1951. Although the locomotives bore a general warranty, that warranty had expired November 7, 1952, two months before Irby's death. For the fourteen months prior to his death he had been engaged in the task of servicing, of "following-up", the locomotives, after their delivery to the Railroad. During this period he had worked exclusively on the Railroad's equipment.
Irby's work was directed to keeping the locomotives in running condition. While he was assigned to the locomotives, he took part in regular monthly inspections of them for the Railroad and made recommendations in respect to them. Also, irrespective of these inspections, from time to time he made recommendations for work to be done on the locomotives.
The work sheets prepared by Irby and made by him for Westinghouse enumerated several detailed tasks which could have been performed as well by the Railroad's employees if Irby had not been present. He often assisted and participated in the repair work himself. Immediately prior to his death he was engaged in the task of "stoning"*fn3 a generator, commutator, albeit it was one which could have been performed by a Railroad electrician. Irby was not working on an ignitron which was the distinguishing feature of the type of locomotive which he was following-up.
Irby rode the locomotives on regular runs. In one instance, on January 1, 1953, while Irby was riding in the cab of a locomotive, he acted as a fireman or a brakeman, calling out signals, and observing passing trains, under the supervision of the locomotive engineer.
Irby was on call 24 hours a day. If at any time one of the locomotives had a breakdown, someone from the Railroad would tell him to report at the scene of the breakdown. Irby immediately responded to these notifications. He reported, or at least announced his presence, to an assistant foreman, a Railroad employee in charge of locomotive maintenance at the Wilmington shops. Irby also would be advised from time to time by the foreman of the electric locomotive shop, another Railroad employee, when a defect appeared, and he was expected to take part in the repair work and did so. During the time that Irby worked on the locomotives, Railroad employees would be assigned to assist him and these employees took orders from Irby.
Irby was issued a pass on the Railroad with the understanding that its use would be restricted solely to the business of the Railroad.
The Railroad also had the right to tell Irby what he should do or should not do in respect to the locomotives. There was no contract between Westinghouse and the Railroad insofar as Irby's services were concerned.
The operative facts most favorable to the position of the defendant Railroad that Irby was not its employee are as follows:
Irby was originally employed by Westinghouse and throughout the term of his work with the Railroad's locomotives was paid solely by Westinghouse.His very extensive overtime ...