Kalodner, Ganey and Seitz, Circuit Judges.
The District Court entered Judgment in favor of the defendants after granting their motions for a directed verdict*fn1 in the plaintiff's personal injury action under the Federal Employers' Liability Act*fn2 and this appeal followed.
Plaintiff, at the time of his injury on July 2, 1962, was employed as a coal shoveler by the defendant E. W. Coslett & Sons ("Coslett"), a freight handler and forwarder, then engaged in unloading coal hopper cars at a pier owned by the defendant Reading Company ("Reading"), pursuant to an existing contract.
Reading's motion was granted on the ground that "from the plaintiff's evidence the jury could not find that the plaintiff was at the time of his injury an employee of the defendant railroad within the meaning of the Federal Employers' Liability Act, or that the contract between the railroad and Coslett was void under Section 5 of that Act * * *" Coslett's motion was granted on the ground that "as the plaintiff has conceded, the jury could not find from the plaintiff's evidence that the defendant Coslett was at the time of the plaintiff's injury a common carrier by railroad within the meaning of the Federal Employers' Liability Act. * * *"
On this appeal plaintiff contends that (1) his evidence as to his employment by Reading was sufficient to present a jury question and that the District Court erred in holding to the contrary; and (2) plaintiff's evidence made out a prima facie case on the issue of negligence.
We do not reach the second contention in our disposition of this appeal.
At this juncture it must be noted that while plaintiff in his "Notice of Appeal" appealed from the Judgment in favor of Coslett, he "conceded" below*fn3 that the jury could not find from his evidence that Coslett was a common carrier within the meaning of the Federal Employers' Liability Act. Moreover, plaintiff has not here adverted, either in his brief or oral argument, to the entry of Judgment in Coslett's favor. Under these circumstances it must be concluded that plaintiff has abandoned his appeal insofar as the Judgment in favor of Coslett is concerned, and accordingly it will be affirmed.
Consideration of the question as to whether the District Court erred in holding that plaintiff's evidence as to his "employment" by Reading was insufficient to require submission to a jury must be prefaced by this statement of the critical facts presented by the record:
Coslett, as earlier stated, is a freight handler and forwarder and Reading is one of its many customers. Coslett has had a coal contract with Reading since 1943 for "The unloading at Pier 11 of anthracite and bituminous coal and coke from railroad cars to vessels", and "The trimming of cargo coal and coke and bunker coal in such vessels loading at Piers 11 and 18 as may be designated by the Manager of the Port Richmond Terminal or his duly authorized representative". The contract provides that Coslett is required "to furnish all labor required for the performance of the work", and Reading is to provide Coslett "free of charge" with "the shovels, trimming boards and candles required" in performing its work, and that Coslett may also use other Reading equipment on payment of "use" charges. The contract designates Coslett as an "independent contractor". It requires Coslett "to indemnify, protect and save harmless" Reading with respect to damages to its property and freight and "injuries" to any person, including employees "of either party". It further provides that Coslett is to employ and pay all persons engaged in the performance of its work, and that such persons should be regarded as its employees, subject "to its exclusive authority, supervision, direction and control", and right to discharge, and that Reading should pay Coslett for its services on a tonnage basis at specified rates.
The evidence established that Reading and Coslett are separately owned and operated corporate entities; their only relationship is contractual with respect to services to be rendered by Coslett to Reading in the handling of coal cargo; and they have no interlocking directors or officers.
The routine of the work performed by Coslett at Pier 11 at the time plaintiff was injured may be described as follows:
Reading employees moved coal hopper cars which were to be unloaded by Coslett's crew to a discharge point on Reading's tracks which was directly over a moving conveyor. Coslett employees would then take over. They would first place chocks under the wheels of the cars and then open their hatches so that the coal would fall through to the conveyor below. The "arms" of an overhead positioned "shaker" owned by Reading, but operated by Coslett employees, would then be attached to the middle sides of the car to be unloaded by Coslett employees and the "shaker" would shake the car so that its vibrations would ...