The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 85
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HARRELL V. ATLAS PORTLAND CEMENT CO.
be removed, and he also directed the operation of the steam shoveI.
The plaintiff controlled the movement of his crew and caused it to place
each car to be loaded when and where the engineer directed him to
place it and caused his crew to remove it when the engineer notified him
it was loaded and whenever the engineer directed him to remove it.
The plaintiff had been engaged in this same work for more than four
years. Ordinarily when a car was to be loaded the engineer would
direct the plaintiff where to place the car. He would place it. The
engineer by the use of the shovel or dipper would seize a portion of the
rock which had been loosened by the dynamite, swing the dipper over
the car, and drop its contents into it. When the car was loaded, he
would notify the plaintiff that it was ready for removal, and the plain-
tiff would cause his crew to pull it out. Sometimes the dipper would
be used to rake or pull down large quantities of rock which rolled out
to some distance from the face of the cliff. When the engineer was
about to use the shovel for this purpose, if the cars were in near the
cliff, it was his custom to direct the plaintiff to take them out of the
way; if there was nothing in there but the men, he would tell the men
to look out. If the plaintiff was near handling his crew or cars, he
or one of his crew would notify him At the time of the injury to
the plaintiff, he had been notified that a car had been loaded, had
caused his crew to attach their engine and empty cars to the loaded
car to pull it away from the cliff, had signaled the engineer of his
crew to pull the car out, had placed himself on the step of the car, and
had seized the grab iron on the corner of the car to enable him to ride
on it, and the car had started, when, without any notice to him, the
engineer of the steam shovel caused it to pull down a large quantity of
loose rocks which struck and seriously injured him.
The facts of this case which have now been recited leave no doubt
that the plaintiff and the members of his crew, who were employed
and paid by the Hannibal Connecting Railway Company, and the en-
gineer and his crew who were operating the steam shovel and who
were employed and paid by the cement company, were fellow serv-
ants, unless, at the time of the injury and in the doing of the acts they
were respectively performing, the plaintiff and his crew were acting
under the direction and control of the railway company while the
engineer and his crew were acting under the direction and control of
.the cement company. For they were all engaged in the common em-
ployment of quarrying for the cement company and removing rock
from its quarry near Ilasco to its plant. That the engineer and his
crew were acting under the direction and control of the cement com-
pany and were its servants is conceded. But it is contended that the
plaintiff was directed and controlled in his acts by the railway com-
pany and was its servant. Whether he was the servant of the cement
company or of the railway company is not determined by the fact that
he was employed and paid and might be discharged by the railway com-
pany, but by the answer which the facts give to the question: Did the
railway company or the cement company have the exclusive power to
direct and control his action in doing the work he was performing at
the time of his injury? Standard Oil Co. v. Anderson, 212 U. S. 215,
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/100/: accessed November 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.