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Intra-Industry Claims Agreement Arbitration Award No. 7

Appeal Arbitration Award No. 3

Warren Vanskike vs. Burlington Northern Railroad and Union Pacific Railroad

  1. Date and Place of Accident and Names of Claimants

    June 27, 1974
    Springfield, MO
    Warren Vanskike

  2. Names of Carriers Parties to Arbitration

    Union Pacific Railroad
    Burlington Northern Railroad (Frisco Railway)

  3. Statement of Uncontested Facts with Regard to Accident

    1. Rail car UP 53805 was manufactured by ACF industries.
    2. Rail car UP 53805 was a trailer flat car equipped with two ACF model A trailer hitches, also manufactured by ACF industries.
    3. Union Pacific was the owner of the car, UP 53805, which was purchased new in 1959.
    4. Car UP 53805 was delivered in interchange to the Frisco Railway at Kansas City, MO, on June 1, 1974 containing two empty trailers secured by the aforesaid hitches.
    5. Car UP 53805 remained in the possession of the Frisco Railway from 6/1/74 through the date of the injury.
    6. No records exist of car UP 53805 being repaired for 90 days prior to the date of the injury.
    7. On June 27, 1974, Warren Vanskike was assisting in affixing loaded B&OZ trailer 204181 onto the ?A? end hitch of car UP 53805, when he used a mechanic?s hammer to strike a portion of the hitch at which time the hitch fell into a lowered position, injuring his left arm and resulting in its amputation.
    8. As a result of his injuries Warren Vanskike brought about suits for damages against ACF, UP. He also sued Frisco Railway under FELA, alleging a defect in the car.
    9. UP and the Frisco Railway were and are both signatories to the IICA, and each has fully satisfied the judgment rendered against it in connection with this matter, including interest.

  4. Contentions of Carriers

    UP takes the position that Vanskike is an employee of Frisco Railway, and that Part II of the IICA applies. It was Frisco?s duty to provide a car suitably equipped and free of defects to transport trailers which were to be loaded by the shipper. Responsibility for attaching the trailers to the cars rested with the railroad, and Mr. Vanskike was performing railroad work when injured. The matter falls under Part II, Rules, A, B, C, and E, which states that all costs should be levied against Frisco Railway. The trial court found that Vanskike was an FELA covered employee, and the finding was affirmed by the Eighth Circuit Court of Appeals.

    UP also contends that if Part II of the IICA does not apply, then Part I, Rule 12 applies: ?The ORIGINATING CARRIER shall bear a full responsibility for COSTS of ACCIDENTS occurring in connection with the MOVEMENT that are attributed to DEFECTS which can be shown to have existed in the car when placed ?? In order for Part I, Rule 12, to apply, it must be found that Vanskike was not an agent nor employee of Frisco Railway to satisfy the definition of ACCIDENT.

    Frisco Railway contends that Vanskike was not an employee of the Frisco Railway, and Part I, Rule 14 applies. The injury was caused by a defect in the design of the model ?A? hitch, and liability rests on the carrier placing a defective car into the stream of railroad commerce.

  5. Findings of Fact

    The jury decided that Vanskike had the status of an employee of Frisco Railway, which was affirmed by the District Court and the Eighth Circuit Court of appeals, filed November 9, 1981:

    "Frisco makes several arguments related to its contention that Vanskike was not a statutory employee as defined by the FELA. Vanskike was employed by Frisco Transportation Company, a wholly-owned subsidiary of Frisco. Under the FELA the test of employee status is whether Frisco had control or the right to control Vanskike in the performance of his job. See Porter v. St. Louis-San Francisco Ry., 354 F2d 840, 84 (5th Cir. 1966). Where the evidence of control is in dispute the case should go to the jury. Kelley v. Southern Pacific Co., 419 U.S. 381, 331 (1974)."

  6. Findings and Conclusions of the Panel

    We find that Part II of the IICA applies, in that in this particular instance, Vanskike had the status of an employee of the Frisco Railway (Burlington Northern).

    We further find that under Rule C, Part II of IICA, that Frisco Railway (Burlington Northern) is responsible for all costs, except those expenses incurred by full-time non-contract employees of Frisco Railway (Burlington Northern) and Union Pacific.

    Additionally, we believe that no reference should be made to early drafts of the IICA in reaching a decision.

H. R. Fischer
Appeal Arbitrator

J. A. Goodman
Appeal Arbitrator

V. C. Smith
Appeal Arbitrator

W. H. Maass
Appeal Arbitrator

N. L. Hastings
Appeal Arbitrator