(dissenting).
I dissent.' Section 1, rule 27, of the Interstate Commerce Commission, referred to in the main opinion, is as follows: “Owners are required to load into or on cars freight for forwarding by rail carriers, and to un*443load from cars freight received by rail carriers at carload' ratings.”
Under this rule the bill of lading required the owner to unload the steel girders. The contract between the railway company and the owner entered into during the progress of the interstate carriage must be read in the light of the obligation thereby imposed upon the owner to unload the cars. The interstate contract of carriage was not completed until the cars were unloaded. In my opinion, the short haul to the point where the 1 beams were unloaded did not constitute a new intrastate commerce transportation entirely distinct from the original contract of carriage such that the interstate commerce rule no longer applied. This additional haulage was evidently contemplated by the parties in connection with the interstate carriage, and the unloading was considered by them as that required to be performed by the owner at the conclusion pi the interstate shipment.
The contract with reference to unloading must be viewed in the light of the fact that the unloading was the work of the owner and not of the carrier. The question arises as to whether the railway company assumed the burden of doing the work of the owner for compensation, or whether both parties recognized the legal obligation on the part of the owner to unload the cars and the railway company loaned its equipment and employees for that purpose for an agreed compensation. The trial court based its conclusion on Rockwell v. Grand Trunk Western R. Co., 264 Mich. 626, 250, N.W. 515, decided by the Supreme Court of Michigan. In that case a similar arrangement between the carrier and the railroad company for unloading of I beams for a bridge, in view of rule 27 I. C. C., was held to make the crane operator an employee of the owner for the time being. I think the decision is correct and should be followed.
The Supreme Court of Pennsylvania reached a similar conclusion in Rau v. Wilkes-Barre & E. R. Co., 311 Pa. 510, 167 A. 230, where the railroad company also furnished a crane for the unloading of a carload shipment of stone. The conclusion of the court was based upon the tariff regulation requiring the consignee to unload the car and upon the presumption that in making their arrangement with reference to unloading they intended to act unlawfully.
The opinion of the majority would leave to the jury the question of whether or not the unloading of the cars in question was at the end of an interstate or intrastate transportation. As the facts are undisputed in my opinion this question was one for the court, and the jury should be definitely instructed upon that question as a matter of law, if the case is to be retried.
The authorities cited by the parties on the question of the termination of the interstate journey, with the exception of Rockwell v. Grand Trunk R. Co., supra, are not directly in point. In one of the cases appellee cites, Pitman v. Yazoo & M. V. Ry., 171 Miss. 799, 158 So. 547, an employee of a consignor loading lumber upon flat cars of the carrier was held to be the servant of the owner and not of the carrier and that the Interstate Commerce Act applied because the loading was a part of interstate transportation. By parity of reasoning the appellee claims that the interstate journey in the case at bar was not completed until the girders reached the ground.
The question of when a servant of a railroad company becomes temporarily the servant of another was recently discussed by the Supreme Court in Denton v. Yazoo & M. V. Ry. Co., 284 U.S. 305, 52 S.Ct. 141, 142, 76 L.Ed. 310. It is emphasized there that the question for determination in these cases is, “Whose is the work and whose is the power of control”? If, in the case at bar, the obligation imposed by rule 27 of the Interstate Commerce Commission was still binding upon the consignee, as I think it was, then it is clear that the work was the work of the consignee and not of the railroad company. The unloading' was to be supervised by the consignee, who thus had the power of control so far as the actual unloading is concerned, although that control was subject to the railroad company’s control of the movement of the train to and from the place of unloading and of the time of unloading. There is no doubt, as the majority holds, that the case of Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, cited by appellant, is closely analogous, but, as pointed out in the case of Denton v. Yazoo & M. V. Ry. Co., supra, it was there determined’ that the company furnished the work done by the winchman and did not furnish the winchman to the stevedore. We quote the comment of the Supreme Court in the Denton Case upon tile Anderson Case as follows: “This court held upon the facts, in the light of the rule which we have just stated and discussed, that the power, the winch, and the winchman were those of the company, and that the company did not furnish them, but furnished tho *444work they did to the stevedore; and that this work was done by the company as its own work, by its own instrumentalities and servant under its control. A judgment for Anderson against the company was affirmed.”
In the case at bar the controlling consideration is the effect of rule 27 which makes the unloading the work of the consignee and not of the railroad company. It is true that the railroad company and the consignee might make a contract in direct violation of the law or that the contract made for compensation might be valid, but in either event it is essential to recognize that the work done, unless clearly indicated otherwise by the special agreement, is the work of the consignee. In the case of Denton v. Yazoo & M. V. Ry. Co., supra, the Supreme Court was largely influenced in reaching its conclusion «that a railway porter named Hunter who was assisting with the unloading of the mail was the servant of the government and not of the railway company, because of the fact that the work being done was that of the government. The court there stated: “Whether the railroad companies may be held liable for Hunter’s act depends not upon the fact that he was their servant generally, but upon whether the work which he was doing at the time was their work or that of another; a question determined, usually at least, by ascertaining, under whose authority and command the work was being done.”
On the whole, however, my opinion is that the trial court correctly instructed the jury to return a verdict for the defendant because under the admitted and undisputed facts there was no evidence to sustain the conclusion that the trainman was acting on behalf of the railroad company instead of on behalf of the consignee.