Dougall

Appellant sought to recover damages for injuries sustained by him while working on appellee’s railroad right of way. Following a trial of the sole issue of liability the trial judge made findings of fact and conclusions of law adverse to appellant. He appeals from a judgment of dismissal entered thereon.

The question raised on this appeal involves the applicability of the Federal Employers’ Liability Act.

We refer to appellee as Spokane, to Morrison-Knudsen Company, Inc., as M-K, and to the Federal Employers’ Liability Act as FELA.

A pre-trial order, approved by respective counsel, was entered. Therein the parties agreed that the defendant was during all times pertinent a common carrier by railroad within the meaning of FELA; M-K during said times was a corporation engaged as a general contractor in heavy or engineering type of construction, including railroads; M-K is a wholly independent corporation, in which neither Spokane nor any of its affiliates has ever owned or controlled any stock or interest.

Spokane and M-K entered into a written contract and supplement thereto in which M-K agreed to perform certain work upon Spokane’s roadway and right of way, consisting of…