Before McLAUGHLIN and HASTIE, Circuit Judges, and DUMBAULD, District Judge.
McLAUGHLIN, Circuit Judge.
In this Federal Employers' Liability action, appellee was injured while asleep and off-duty, as a consequence of his fall from a negligently maintained bed in the Pittsburgh & Lake Erie Railroad Young Men's Christian Association in Campbell, Ohio.
Plaintiff, a communications lineman, was assigned with his gang to work on a project at defendant's yard near Youngstown, Ohio. Since he lived and had his headquarters in Pittsburgh, defendant had the option under its contract of transferring plaintiff to Youngstown and requiring him to pay his own expenses there or it could leave his headquarters in Pittsburgh and pay his expenses at Youngstown. Defendant chose the latter course and arranged for plaintiff and his gang to stay at the "railroad 'Y'" at Campbell. Plaintiff lived there during the week, eating two meals a day at its restaurant and taking out a lunch supplied by the "Y". He went home to Pittsburgh on weekends. This routine was followed for several months prior to May 3, 1957, the date of the accident.
Initially, we are faced with the question of whether Carney was covered by the provisions of the Federal Employers' Liability Act at the time he fell: was he "employed" within the meaning of § 51.*fn1 Very nearly on all fours on the point is the case of Mostyn v. Delaware, L. & W.R.R., 160 F.2d 15 (2 Cir., 1947). Mostyn involved a track worker who was housed and fed in a "bunk car" by a third party that was under contract with the railroad. Because of the verminous condition of his bunk plaintiff took his blankets and slept outside near the track, where he was subsequently struck by a passing train. The opinion indicates that although the plaintiff Mostyn was privileged to sleep in the bunk car (at his own expense), he could also, if he wished, have slept in other accommodations available in the town. Although the contention of the railroad that plaintiff had quit his job prior to the accident was not accepted, apparently he was not "on call". The court held that the function of housing and feeding the plaintiff under these circumstances was one of those activities "which though literally not part of the work, are necessary to its performance" and stated, 160 F.2d at 17-18:
"It seems to us that when a railroad provides shelter or food or both for its employees, and they are using the accommodations so provided to prepare themselves for their work, or to rest and recuperate, they must be regarded as in its 'employ'".
We later approved of the principles laid down in Mostyn in Casso v. Pennsylvania R.R., 219 F.2d 303 (3 Cir., 1955), where plaintiff was hit by a passing train while walking back to his bunk house from a day off.
The facts here are, in some respects, stronger than those in Mostyn and Casso. Plaintiff's expenses at the Y.M.C.A. were billed directly to defendant and paid on a monthly basis. There was conflicting testimony as to whether plaintiff, in the period prior to his accident, was free to live in other accommodations having rates similar to those of the "Y" and be reimbursed therefor by the railroad. Apparently at oral argument before the district court on its motion for judgment n.o.v. defendant conceded that it would not have paid or reimbursed plaintiff for his living expenses unless he stayed at the "Y". In any event, we have the essential common elements of Mostyn and Casso in that defendant provided plaintiff with shelter and food, which by custom and the economic realties of the situation he and his work group were encouraged to use. The case clearly comes within the framework of Mostyn and is in harmony with those decisions which have found related activities to be "necessarily incident" to one's employment.*fn2
Our second problem is whether the trial court correctly ruled under the facts that the "* * * defendant was responsible for any negligence in the maintenance of the facilities which resulted in the injuries sustained by plaintiff in this case." The railroad had sent Carney and seven other of its communication linemen specially from Pittsburgh to Campbell, Ohio for the purpose of "* * * putting a new job down there, a big job." Carney's particular work was "stringing cable." The task was intended to last for some period of time; "this wasn't a temporary job". As the trial judge stated in his opinion: "Although defendant could have transferred plaintiff to Youngstown and required him to pay his own expenses it decided that plaintiff's station should remain at Pittsburgh and that it would pay plaintiff's living expenses while working on the project away from his station. Defendant made arrangements for plaintiff and his fellow linemen to stay at the Pittsburgh & Lake Erie Railroad Y.M.C.A. at Campbell, Ohio. Plaintiff and other members of his gang slept at the Y.M.C.A. during the work-week, ate two meals a day at its restaurant, and had their lunch packed by Y.M.C.A. employees. Although about 97%-98% of the men who used these facilities paid for them all charges for plaintiff's room and board were billed directly to and paid for by defendant on a monthly basis. At oral argument on its motion, defendant conceded that it would not have paid for or reimbursed plaintiff for his living expenses unless he stayed at the Y.M.C.A. Plaintiff's daily working hours were from 8:00 A.M. to 4:30 P.M. and he was not 'on call' at other times."
The situation regarding the Y.M.C.A. and its relationship to the railroad need not be detailed. Regarding this the district court stated "Under these circumstances it cannot be disputed that defendant had some measure of control over the operation and maintenance of Y.M.C.A. facilities, whether or not it chose to exercise it." There is a lot to be said for this position but we prefer to base our decision primarily upon the proposition that plaintiff's residence and lodging at the Y.M.C.A. was part of the operational activities of the railroad; that the Y.M.C.A. in supplying those services to plaintiff by arrangement with the railroad, was performing operational activities of plaintiff's employer and in that capacity was an agent for the employer in accordance with Section 1 of the Employers' Liability Act. (45 U.S.C.A. § 51). Carney, when he fell, was in his room at the Y.M.C.A. where he was staying. He was there under the specific agreement with his employer that he would retain his out of town status and that the railroad would pay for his living expenses. As we have seen under the settled Mostyn, Casso principle, Carney was in the course of his employment when he was hurt. And under Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958) the negligence of the Y.M.C.A. (found by the jury responsible in whole or part for the accident) was the negligence of its principal, the defendant railroad. In Sinkler the plaintiff was an employee of the defendant Missouri Pacific Railroad. He was working on one of the latter's cars while it was being switched by a crew of the Belt Railway in the Union Station at Houston, Texas. The car collided with another car in the station through the fault of the switching crew and plaintiff was injured. The switching railroad was organized by the Missouri Pacific and other rail carriers running into Union Station. They owned the Railway's stock and were represented on the Board of Directors in proportion to their holdings. Missouri Pacific owned half the stock and designated one-half of the directors. The Railway received some income from non stockholding carriers but the carrier stockholders otherwise shared the net expense of its operations according to an agreed formula. The Railway employed its own switching crews and other personnel and owned and operated the facilities and rolling stock used in the switching operations. The Supreme Court held, 356 U.S. 331-332, 78 S. Ct. 762-763:
"In the present case the respondent, rather than doing the necessary switching incident to its business in the Houston Terminal area, arranged that the Belt Railway should supply the crews and equipment to perform this operation on its behalf. But the evidence clearly establishes that the respondent's trains, when under the control of the Belt Railway's switching crews, were being handled to further the task of the respondent's enterprise. While engaged in switching and handling respondent's cars and trains about the terminal area, the Belt Railway employees on the job were, for purposes of the FELA, as much a part of the respondent's total enterprise as was the petitioner while engaged in his regular work on the respondent's car.
"It is manifest that the corporate autonomy of the Belt Railway, and its freedom from detailed supervision of its operations by respondent are irrelevant inasmuch as the switching crew of the Belt Railway Company at the moment of the collision in the station was engaged in furthering the operational activities of respondent. We therefore hold that when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA."
Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S. Ct. 789, 4 L. Ed. 2d 820 (1960) reaffirmed the Sinkler doctrine. There the plaintiff was employed by the railroad as a laborer in a section gang with a regular work week from Monday through Friday. On a Saturday, his day off, he with others of his gang worked for a customer of the railroad, a private concern, repairing the railroad siding into its property. The customer was bound to make the repairs at its own expense under its agreement with the railroad. Through the gang foreman, it hired the gang at overtime wages which the foreman paid the men with funds supplied him by the customer. Plaintiff was hurt during the work. The Supreme Court held pages 397, 398, 80 S. Ct. 790, 791:
"This was not a situation, as in Sinkler, in which the railroad engaged an independent contractor to perform operational activities required to carry out the franchise. This was a siding privately owned by the Turpentine Company and established to service it alone. In maintaining it, we do not see how it can be said under the proofs that the ...