U.S. Supreme Court
Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1 (1963)
Shenker v. Baltimore & Ohio Railroad Co.
Argued April 17, 1963
Decided June 10, 1963
374 U.S. 1
1. The Federal District Court awarded petitioner a judgment for damages. The Court of Appeals for the Third Circuit reversed. Petitioner moved for a rehearing en banc under 28 U.S.C. § 46(c). There were then eight active judges on the Court of Appeals. Four voted to grant the rehearing, two voted to deny it, two abstained, and a rehearing was denied. Under the uniform practice of that Court, every petition for rehearing is submitted to every active member of the Court, a judge is not required to enter a formal vote on the petition, and a rehearing is not granted unless a majority of the active members of the Court vote for it.
Held: Such a procedure is clearly within the scope of the discretion of the Court of Appeals under 28 U.S.C. § 46(c), as interpreted in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U. S. 247. Pp. 374 U. S. 4-5.
2. Petitioner, an employee of respondent railroad, who was paid by it and acted solely under the supervision of its employees, sued respondent under the Federal Employers' Liability Act to recover damages for injuries sustained while loading mail onto a mail car of another railroad at a station of the latter which was managed and operated solely by respondent. The injury resulted from a defective door on the mail car in a train of the other railroad which had just arrived at the station. Under instructions that it was respondent's duty to exercise ordinary care to furnish its employees with cars on which they work equipped with reasonably safe doors, even if the cars are owned by another railroad, the chanroblesvirtualawlibrary
jury awarded damages to petitioner. The District Court denied a motion for a judgment notwithstanding the verdict and entered judgment for petitioner.
Held: the case was submitted to the jury under proper instructions; there was reasonable basis in the evidence for the jury's verdict; and the judgment for petitioner should have been sustained. Pp. 374 U. S. 5-11.
(a) On the evidence, petitioner was clearly an employee of respondent, even under the common law loaned servant doctrine, and it is not necessary to consider the extent to which that doctrine applies to cases under the Federal Employers' Liability Act. Pp. 374 U. S. 5-7.
(b) Although the mail car with the defective door was on a train of the other railroad which had just arrived at the station, it was respondent's duty to inspect the car before permitting its employees to work with it. Pp. 374 U. S. 7-11.
303 F.2d 596, reversed.