Carton, Crahay and Handler. The opinion of the court was delivered by Carton, P.J.A.D.
Plaintiff brought this common law negligence action against defendant Schuyler Packing Company and for negligence under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51 to 60, against defendant Penn Central Transport Company.
At the conclusion of the trial before a jury, the judge dismissed the action against both defendants. On appeal this court affirmed the action of the trial court, and the New Jersey Supreme Court denied certification, 65 N.J. 290 (1974).
The United States Supreme Court granted plaintiff's petition for writ of certiorari (Pelliccioni v. Schuyler Packing Co. , 419 U.S. 1099, 95 S. Ct. 769, 42 L. Ed. 796 (1975)), vacated this court's judgment, and remanded the matter for reconsideration of the action against Penn Central in light of Kelley v. Southern Pacific Co. , 419 U.S. 318, 95 S. Ct. 472, 42 L. Ed. 2d 498 (1974).
Although plaintiff raised a number of issues on his direct appeal, the single issue relevant on remand is whether plaintiff made out, on the record below, a jury question that he was, at the time of the injury, an employee of Penn Central within the meaning of the FELA.
In FELA cases brought in the state courts, the rights and obligations of the parties are governed by the act, 45 U.S.C.A. §§ 51 to 60, and by federal principles of common law. See, e.g., Chesapeake & Ohio R. Co. v. Kuhn , 284 U.S. 44, 46-47, 52 S. Ct. 45, 76 L. Ed. 157 (1931). Plaintiff and Penn Central correctly agree that the employer-employee question is ordinarily a fact question for the jury. Ward v. Atlantic Coast Line R. Co. , 362 U.S. 396, 80 S. Ct. 789, 4 L. Ed. 2d 820 (1960); Baker v.
Texas & Pacific R. Co. , 359 U.S. 227, 79 S. Ct. 664, 3 L. Ed. 2d 756 (1959).
Thus, the only true federal question remaining is whether the trial court applied the correct legal principles in concluding that plaintiff had not made out a jury question on the issue of his status as an employee of Penn Central.
The presence of a federal question is, of course, the sine qua non of the exercise of appellate jurisdiction by the United States Supreme Court over a decision of a state court. See, e.g., Henry v. Mississippi , 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); Martin v. Hunter's Lessee , 1 Wheat. 304, 4 L. Ed. 97 (U.S. 1816); 28 U.S.C.A. § 1257; Hart & Wechsler, The Federal Courts and the Federal System (2 ed. 1973) at 470-526.
The Supreme Court's vacation order is directed only toward this court's determination of the federal question raised by plaintiff. Hence, we will not, as we need not, reconsider plaintiff's other points of reversal; they are left for possible reconsideration by the New Jersey Supreme Court. Cf. Schuylkill Trust Co. v. Pennsylvania , 302 U.S. 506, 58 S. Ct. 295, 82 L. Ed. 392 (1938); Georgia Ry. Co. v. Decatur , 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936), noting that state courts, after a United States Supreme Court remand, are free to alter -- subject only to the state's jurisprudence -- prior decisions in the case on state law so long as the altered decision is consistent with the federal Supreme Court's ruling on the federal question presented and remanded.
There is no substantial dispute as to the underlying facts. At all relevant times plaintiff was employed as a "yard driver" by New York Central Transportation Company (Transport), a wholly-owned subsidiary of defendant Penn Central. As part of his job plaintiff operated a yard tractor, known as a "commando," to tow truck-trailers from place to place in Penn Central's North Bergen yard. The trailers themselves were either incoming or outgoing via Penn Central trains.
On March 22, 1969 plaintiff was towing a trailer that had been packed with meat by defendant Schuyler Packing Company. While making a left turn over rough ground, the trailer tipped onto its side, taking the yard tractor and plaintiff with it. Plaintiff's claim is that substantial injuries resulted from the accident.
Plaintiff alleged that defendant Penn Central had negligently maintained its yard and that the rough and uneven condition of the yard roadway had precipitated the accident. Plaintiff also claimed that the Nebraska packing company had loaded the trailer unevenly, thus making it unstable. Finally, in order to seek the benefits of the FELA, plaintiff alleged additionally that he was only nominally an employee of New York Transport and that, in reality, he was employed by Penn Central.
Transport was formed originally by defendant Penn Central's predecessor railroad, the New York Central. (In 1968 New York ...