Petition for Writ of Certiorari — Delaware, Lackawanna & Western Railroad v. Siegrist

ILE f camm fe

co;Supreme Court, U.S.

Fit’ FH:

MAY 111959

me oe8..

JAMES RK BROWNING, Clerk ‘

‘Supreme Court of the United States

eo

‘ October Tete 1958 . . i

¢

——--4-

THE DELAWARE, LACKWANXA & WESTERN

/ RAILROAD COMPANY, -

Petitioner,

against

GLENN C. SIEGRIST,

© Resfiondent.

-

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND GIRCUIT a

.

J SOUS B. DACKINSON, \

SSHUGH MeM, “RUSS,

4 STEPHEN TH. KELLY, |

- Attorneys for Petitioner, The Delaware,

Lackawanna & Western RailFoad

~ Company, :

800 M & T Building,

: Buffalo 2, New York. |

ee

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BATAVIA TIMES Law POINTERS

BATAVIA, HY

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y TABLE OF CONTENTS. J

; : PAGE

Referdkee to Opinion Below <.........,...0.cseees. 1

Jurisdictional Statement ............... 666.0600 ees =

~ Question Presented2----........ Nha cpeteeban a.

Statutes Involved ........ PAedd hhecekbacwes Preeree 2 :

Statement of the Case 2 2.......... 0. cies eee neceees 3

‘Argument ....... Peet “ERM ee epee er eres 7

I. This case raises the question of .proper appél-

late procedure in reviewing cases in which s

cial interrogatories have been used,.and th

answers returned are inconsistent with thi

"PPT, Gascon catNsccacsedessecccuces a

_ IL. The question of appellate review in cases in

which special interrogatories conflict with a

. general verdict is of sufficient’ general impor- -

tance to merit decision by this court ......... ee

III. Decisions of this court establish in principle the

-duty of-the Court of Appeals to direct dismissal

of the complaint rather than a new trial in this

cage ...... Leek SOSeanecarcdaccesnosodacscées 10 | ;

Conelusion ci caarae eases ehuvhsceenssenatad Serre 16

Appendix : *

Opinion of J adge Moore, ‘nd Dissenting Opinion of

Judge Swan i in the Court of Appeals, Second Cireuit... 17 +

Tasue or Crrations.

Atlantic Coast Line R. Co. v. Dizon. 189, F.2d 525 (5th =

OR ER rrr nr, oe et Met Tee 7

Baltimore €& Carolina Liee’ r. Redman; 295 v.38. 654 .

SE Catv ince n dekn cde cas EROS wedgesciecens ao

Ex parte iran 91 U. S. 423 . wale ane i ee ter née euere 14 yn

- *. Ba da

ee : ) _ PAGE

Fort Scott v. Hickman, 112 U.S. 150 (1884) .:....... 12, 13

‘Montgomery W ardS€ Co. vr. Duncan, 311 VU. S.. -

o—. woe SP eee rT eT rn Seer er rer oe li

Ringhiser v. Chesape ake & Ohio Railvoad Company, 334.

_Skilmore v. Baltimore & Ohio Railroad Company, 167

ee Oe ee POOR occ nc savcckscenwsce hd

Stewart v. Southern Railway Co., 315 U. S. 283 (1942). -

Theurer v. Holland Furnace Cé., 124 F. 2d 494 (10th .

ME Sco ico k bevendd ager sy a

ee ee errr tye rer reer re eer ree 10

Toledo Scale C ampany ¢ |, Coniaiiny Scale Company, :

- oie & 8). | ree Susie nawns tains pe |

United ed States v. Stamey, 48-4 .-2d 150 (9th Cir., 1931). :

———alker v. Southern Pacific Railroad Company, 165 U. © fs

we ee rer eee eT ere rer ee 12 i

Wayne ' v. New York Life Ins. Co, 132 F. 2d 28 sie ‘ |

I hod £5 bs os ns as es ARK eS eee wy ||

Welch v. Bauer, 186 F. : 2d 1002 (5th Cir., oe 10. Gf

we moe, | O

Federal Rules of Civil Procedure: o :

gk en ere rerer eae d nae 8, 10, 12 N

‘Rule 50 (b) .... {5 Or ore ineatbues eviveewen 3. ae

Wigmore, Evidence, § 2487 oa ot ae Se EXEXEEEY. _ sepetere:

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‘Supreme Cour of es Ueiiad States

Ceecher Term, 1958

A 7

THE DELAWARE, LACKAWANNA & WESTERN

RAILROAD COMPANY, i nea

Petitioner,

against . a's eat

GLENN C. SIEGRIST, . .

ies, iat

a ns | Jp : a)

PETITION FOR A- WRIT: OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE.

_ SECOND CIRCUIT 7

A

Your petitioner, the Delaware, Lackawanna & Western .

Railroad, respectfully. prays that a writ of certiorari issue

to review that part of the order in the U sp nec as

~ of Appeals for the Second Circuit entered’ on February. 18,

1959, which remanded the cause fora new trial-rather than”)

directed entry of judgment for defendant- -petitioner. °

sii coms it Opinion Below ~*

The-opinion 6f the United. States Court of Appeale- for :

the Second Circuit, reported at 263 F. 2d 616, is. annexed’ as

an appendix. No opinion was. rendered in the District .

Court. ?

me : Jurisdictional Statement Ke

Petitioner seeks review of an order of the United States

Court. of Appeals a hte February 18, 19: 59, which re-

2

ee stile a judgment of the Cnited States District Court f

-. the Western District of New York ‘for plaintiff-respo ent

and remanded for ‘a new trial. Review is sought of so _...:

much of said order as. called for a new trial rather than

dismissal of the complaint, on the ground that in "so re-

manding, the Court of Appeals departed i in principle from

decisions of this ( ourt, and further because the procedural

question involved has not been, but should be, decided by

this Court. The jurisdiction of this Court is inv oked under

28 U. 8. C. A. Section — (th. an

Question Presented , .

Should the Court of Appeals have directed the dismissal .

of the complaint, rather than a new trial?»

Statutes Involved

FederaltRules of Civil Procedure

‘Rule 49 (b) General Verdict Accompanied by Answer to °

Inte rrogatories: The court may submit to

the jury, together with appr opriate forms for.

a genéral‘verdict, written interrogatories upon.

one or more issues of facet the decision of

which is, necessary to a verdict. The court

shall give such explanation or instruction as

may be necessary to.enable the jury both to

‘mike answers to the interrogatories and to

render a general verdict, and the court shall

.direet the jury both to make written answers

— i and to render a general verdict: When the

| general verdict and the answers are harmoni-

ous, the court shall direct the entry of the ap-

propriate judgment upon the verdict-and an-

swers. When the answers are consistent with

_vach other but one or mdre is-inconsistent with

_the general verdict, the court may direct. thé

‘entry of judgment i in accordance with the an-

swers, » notwithstanding the general verdict or

’

a¥inle Mette < 7a

3°

may return the jury for further consideration

of its answers and verdict or may ordcY a new

trial: When the answers are-inconsistent with

each other and one.or more is.likewise incon-

sistent with the general verdict, the court shall

not direet the entry of judgment but may

return the jury for further consideration of its

eae -answers and verdiet-or may order a mew trial.

. oO e . .

62 Stat.'963, 28 U.S.C A. 2106.

| Determination. The Supreme Court or any

- other court.of appellate jurisdiction may af-

’ firm, modify, vacate, set aside or reverse any

judgment, decree, or order of a court lawfully |

brought before it for review,and may remand

the cause and direct the entry .of such appro-

priate judgment, decree, or order, or require

- such further proceedings to be had as may be

just under the circumstances.

Statement of the Case

This is an action to recover for personal injuries com-

_menced ‘in the United States District Court for the West-

‘ern District of New York. Plaintiff, Glenn C. Siegrist,

sued his employer, the Delaware, Lackawanna and Western

Railroad (hereinafter called the ‘*Railroad’’) and the

United States Steel. Corporation. The trial Court dis- .

missed the complaint as against United States Steel Cor-

‘poration, and that’defendant was not a party to the pro-

.ceedings in the Court of Appeals and is not concerned in

this petition. | te

‘The jurisdiction of the, District Court was based on the

Federal Employers Liability Act, 45,U. S.C. A. § 51, ef seq.

in so far as the action against the Railroad is concerned,

Plaintiff was employed.by the Railroad as a var inspector

in the westbound yard at Buffalo, New York. Inspectors

—

in the westbound yard have .two types of duties; the pri-

mary duty is inspection of the running. gear, journal boxes

_and undercarriage of trains coming into the yard — the

east. When, not so engaged, ¢ar inspeetors ‘‘card’’ box-

vars. This latter task involves classifying empty box-cars:

according to the type of commodity each ‘is fit. to carry. -

Both duties.may be, and are performed from the ‘footpath

paralleling the tracks, No work whatever is done in the

westbound yard which necessitates a car inspector ever

entering into or-upon any car (Railroad’s Appendix: 25;

: 30 ; 4-45 ; 103-105 ; 114-116; 117-119; 182-138 ; 133-134; 140-

143; 148.150; 150-153; _ L 38 5 158-159 ; 160; 161-163 ; 168-

169; 171).

On the night of December 49-90, 1951, Siegrist: and his

partner, Schultz, were working thea11 :00 P. M. to 7:00.-

A. M. shift in the westbound vard.. While awaiting the. ar-

rival of HB-9 from Hoboken, die at 1:40 A.°M., they ‘were.

engaged in ‘*¢arding’* box-cars on Track No. f. There was

no work whatever to be done with respect to any ‘gondola .

ear. There was snow on the ground (Railroad’ Ss Appendix:

26: 27; 46-47; 48). :

After Siegrist and Sehulte-ti ad. sentntsindind past about 30

cars of the 75 standing on Track. No. 1, thé cars began to .

move, indicating that an engine had attached and a switch-

ing operation was getfing underway. - Thereupon, und-in . *

accordance with normal practice, Siegrist and Schultz dis-

continued their carding activities and. were proceeding on

foot to the west end of the yard to await the arrival of

HB-9 (Railroad's Appendix: 33; 48-49; 67 -68; 7 hy.

Schultz, as both would have done in normal ‘habia.

continued walking along the footpath beside: Track No. 1.

Siegrist, on the other hand,*saw a gondola car pass him ~

;

and: decided to catel a ride. ‘He testified that in so doing

he had no idea whether he would end up closer or farther

‘from his destination at the west end of the vard. He also

~ testified tha:, at the instant he swung up onto the stirrup

of the gondola, he was aware of a specifie company rule

‘directing employees to “'keep off cars and engines except

in performatice of duty", and knew that he had no duties

‘te perform on the gondola car (Railroad’ s Appendix: 31-

33; 44; 50; 5a; 58-59 : 61; 62; 63-66; 72-73; 74-75; 76; 78

(154; 155-156; 169). ee Braet

- Finding. the ladder on the ear iey and slippery, Siegrist,

instead of ‘returning to the footpath, climbed: into the von-

dola ear., He made’ no effort to determine whether the ear

was loaded, although he testified that he knew it would be

dangerous to enter the car if it were loaded; and although

the uneven surface should have made, obvious that the ear

‘was loaded. A simple examination with his -hand or his

lantern would have disclosed ‘that the ear contained a load

of steel plates (Railr oad’s Appendix : 62-66; 57-38). ‘Some-

time later the train stopped and a ‘floating load"’ of steel

plate mov@d forw ard, pinning Mr. Siegrist’s slog and ¢ causing

the injury, complained of in this action.

There was no evidence at the trial that any car inspector,

- ever rode i macar inthe w vsthound yard, and consequentl: i

no evidence of notice or knowledge by the. Raiiroad that.

car inspectors were eyitering upon cars in this yard, The ,

plaintiff did nof testify.on this point (cf. Railroad’ s Appen-

dix: 25-39; 41-83. Siegrist’s Appendix: 2-21). ‘The ques-

tron was put to. one Ayres, but an objection was sustained,

(Ayres could oniy testify as to a period remote from the

date of the accideyt and about-a. different yard.) (Railroad's.

Appendix: 40-41). Schultz de nied ever hating seen aocar.*

inspector riding @ car it the we sthound yard, He also de-

, ie i

. © *

nied an alleged p prior inconsistent statement. (Railroad’s

“ Appendix: 128-131. Sicarist’s s Appencig: 42-4 if

Thus,. aftenye redted efforts, plaintiff was’ unable to»

produce any e4gence. that the Railroad had notice that

“oar inspectors were riding in the ears, and consequently

there was nothing for ‘the tr ial judge to eubenit to the jury

on this point. ‘ia be . 5

‘Hawever, a special’ question. W was submitted. ta ‘the jury

in the following forma: a 43 ~

“Was Siegrist, in the vondols car in the perenne

co. Of hts duties? (Jury's answer) No."*

A te

In spite of ‘the special finding, the jury i the. Rail-

‘oa negligent, Siegrist 25% negligent,-and brought in a

_. verdict against the tailroad for #75,000 (Railroad’s “

dix: 23). ’ Pa :,

The obvious inconsistency hetween- the special fing

and the general verdict may be explained by. the. failure ¢

the tria? (‘ourt ‘properly to charge as to the duty of t e

Railroad to plaintiff. Under the charge as given, the jury

could find for plaintiff. without regard to whether or not —

the. Railroad owed any duty ‘to the plaintiff ‘in* the. cir-

cumstanees' vf the case. ~The ( ourt of Appeals pointed out .

; that a finding of a duty to plaintiff was, necessary to sup-|

port’a verdict for him. Relying on the ‘decision of ‘this

Court * Ranghiser v. Chesapeake & Ohio Railroad Co.,

- Su4 U.S. 901 (4997), the Ceurt of Appeals held that there

could be: a a of duty to plaintiff only «if (ly he was:

r

in the ca the performance of duty or (2) the Railroad

had notice that he might be there. The jury had disposed .

of. the first possibility in favor of fie Railroad, and no eri-

.. dence had been introduced to sopenet the ‘second possi-

bil ity. ae j

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| Sonsequently, the Court of Appeals reversed—but re-

manded for a-new trial. Judgé Swan dissented and voted

to remand with directions tou dismiss the complaint. His

, dissenting opinign is as follows:

eo Since the jury found thé plaintitl was “not jn the

: gondola car in the performance of his datjes, and since

there was no evidence that the company rile had ever ¢

been violated before, 1 see no reason. for the, trial

» _dudge to have oharged om the subject of ‘notice (o vhe

) » company that an employee might be riding in the gon-

= ..° doka, “In my opinion plaintiff's (sic) motion to dismisé

; the complaint should have heen granted,’ e

The position of petitione r is that stated by Judge Seen, pa

.._ - Platmtiff had a full opportunity to prgve notice at the ‘first

: trial ‘and failed. in his attempt althOugh his counsel was

PP _ fully apprised of the materiality of such proof. Canse-

a, quenly, no reason exists which wound justify’ a retrial.

ae . | “ARGUMENT

| | ee re |

This case raises the question of proper appellate iid ¢

. cedure in reviewing cases in which special interrogatories

; have been. used, and the answers returned are oe ‘i

with, the general verdict. Be tin eke sn ; ra

f D ° . ‘ 7

7 - -. As the Court of Appell Jthela Yhayity of the Railroad

"y to: provide plaintiff-réspondent with a safe,piace to work,

extends only to such places as. he was required to be in

the performance of is and such other ees as the Rail-

roa’ had notice he nirght. be.

Ringhiser v.¢ bamgenke d Ohio Reilroad C'o., 354

U.S. 901 (1957) ;

Atlantic Coast Ling R: Co. r, Dixon, 189 F. 2d 525

a Sth Cir. 1951). ‘ :

é .

and . ” . fe ro

{7

*

ws

* Hence a finding by the jury of either

‘wet? -*.

(1) that plaintiff was in thg car in performance of

_ duty or ~

(2) that the railroad had notice he might be there, was ‘

essential in support.of the general verdict for plaintiff.

The i issue of notice was excluded from the case by plain-

tiffs own failure to produce evidence to support any find-

‘ing of notice. The trial Court could not properly charge

. the jury on this issue. , .

Wigmore; Evidence, § 2487.

An afirmatirc answer to the special interrogatory (“ Was

Siegrist in the gondola car in the performance of his

dutiés?’’), was, therefore, essential to support the general

' yerdict for plaintiff—the negative response actually given

by the jury was irreconcilably in conflict with the general

verdict.

The trial Court did not realize that a conflict existed and

consequently denied the motion to dismiss which the Rail-

road made after the verdict. Had the trial Court applied

the law correctly, it would have realized that the answer

to the special interrogatory and: the general werdict were

irreconcilable and would have heen "jAstified i in dismissing

the complaint under Rule 49 (b).

When the Coart of Appeals corrected the error of law,

‘it was presented with the task of disposing’ of the cas

as the trial Court should have done had it realized that a

Rule 49 (hb) situation waxdpresented.

‘

As this case well exemplifies, special interrogatories offer —

_ a potent ‘means of correcting eFrors of law, as well as of

tecting the thought processes of jurors.

See the discussion by Judge Frank in:

Skidmore vr. Baltimore d Ohio R.Co., 167.F. 2d 4

(2d Cir., 1948).

There will probably never be a remedy for prejudicial

rr

error during the course of a trial short of a frial de noro,

with ‘all its: expense to the litigants and to the judicial

system. However, an entirely different situation is pre-

sented where there is no prejudicial error during the trial,

. and a special interrogatory is answered by the jury on the |

decisive issue. In ‘such a-case, any error in apptring the

law to the facts may be corrected without the need for a

new trial. The case ix ripe for fina? dixposition on the

basis of the law, ax corrected in the vrnel Court, and

the facts as found by the jury.

In the interests of justice and of the judicial system,

. all possible encouragement should be given by this Court

to special interrogatories ax a tool of appellate review.

We have failed ‘to find any case in which this Court has

instructed the Courts of Appeal for the several circuits

in their power and duty in special ectiiecnes ‘cases.

While there seems no reason for doubting * that the

Courts of Appeal have the same powers as are accorded

4s

~ 10

the District Cina under Rule 49. (b), it w ould be desire.

able to settle the question. | a om

Compare: | |

' Wayne v. New York Life. Ins.-Co., 132 Fi 2d 28

: - (Sth Cér. 1942) (power of Court of “Appeals to

direct judgment exercised) ; .

Theurer v. Holland Furnace Co., 124 F. 2d 494

- . (10th Cir. 1941) (power of Court of Appeals t

direct. judgment recognized) ; .

Welch v. Bauer, 186 F. 2d. 1002 (Sth Cir., 1951)

(only power is to order new trial).

=F =

: Oitmaa OB

It is submitted that, in the instant case at least, it is

' $0 apparent a plaintiff has had a full and fair oppor-

_ tunity to preseit his case, that ‘sound pr inciple requires

entry of final judgment for defendant.

p. Ped x

ies fo

»

POINT III Prge,

Decisions of this Court establish in eta the duty

of the Court of Appeals .to direct dismissal of the Com-

- plaint- rather than a new trial i in this case.

. i i " P

ok Pe ee ae eee

aoe 3

As already noted; no decisions of the Court have been’

- found precisely applicable to the procedural context of

this case. However, ‘several decisions indicate the-desir- 7.

ability of terminatifig litigation through entry of final » —

judgment by direction of the Court of Appeals, whenever :

justice permits. ' ' |

In Toleda Scale 8 v. ( ‘omputing ‘Soule Company,

261 U.S. 399, (1923), at page 425, Chief Justice Taft for a

unanimous Court in affirming the denial of an application. . t

for a new trial based on newly discovered evidence, de- 4

scribed the controlling principle as: :

vo

- #€*.* * @ most salutary rule of laXNwhich after parties

have had a full and fair opportunity to prepare their

case, refuses to permit them to draw out litigation. by

bringing in new eviderice which with due diligence they

ought to have discovered before the hearing. © The

apparent hardship of particular cases should not and

can not weigh against the application of this. sound

principle. As.Mr. Justice Story. rema ed in Ocean

Insurance Co, v. Fields, 2 Story, 59;-18,Fed. CH 532;

‘It is for the public interest and policy to make “an end

_ to litigation, or, as was pointed? said by a great jurist,

that suits may not be. immortal, while men are

_ mortal.’ ”’ 4

The case-at bar presents a parallel situation: Plaintiff-

respondent has had a “ull and fair opportunity to’ prepare

and present-his case. It is:certainly contrary to the poliey °

. described by Chief Justice-Taft to drag out the litigation,

giving plaintiff a seeond chance to prove, by whatever

‘ingenious .means, facts which do not exist asx shown ie

plaintiff’s failure of proof at the first trial.

Baltimore & Carolina Line v. Redman, 295 U. S. 654

(1935), indicates”the predilection toward final judgment

‘in the appellate’ Court. The procedure approved in that |

case, and’now émbodicd in F. R. ©. P90 (b), was designed

onecifically to permit the appellate Court to enter final

judgment upon correction of an error of-law which does

not corrupt the eytive record—failure to direct a verdict.

See also: ve }

~ .Montgomery Ward d& Co. 1. Duncan, 311 U.S. 243

(1940). a te. ..

Assuming that, in the. presetit .case, a jury question was

presented on the question of performance of duty, then the

trial Court did not err in the first instance, in submitting

the question to the jury and in. refusing to direct a verdict »

for the Railtoad. However, after the jury had. returned

7

ty

its verdict, the trial It should Rave been

apparent that the plai dent ‘was not entitled to

prevail, and the trial Court should have entered judgment

- for defendant under Rule 49 (b). se

___ Tf -the—appettate Court has power to direct: dismissal

where the tril Court should have done so mm the Rule

>

50 (b) situation, so also should the appellate Court direct

dismissal in the Rule 49 (b) situation,

United States v. Stamen, 48 FL 2d 150 (9th Cir.

1981); - Aig

Walker v. Southern Pacific Railroad Co,, 165 U.S.

193 (1897) ;

Fort Scott vr. Hickman, W2U. 8. 150 (1884).

° . - ; nd . * . . S .

Walker v. Southern Pacific, supra, while dealing with

an aef of a territorial legislatu% which authorized entry - —

‘of judgment in accordance with the answers to special

' Tae ‘ )

interrogatories, is, equally applicable to the powers and

duty of the federal Courts. Justice Brewer said, at page

" HOR : °

6 } 36

ee * When a general verdict is returned and the

court determines that the jury have either misinter-

-, preted or misapplied the law. the’ only remedy is the

award of a new trial, because the constitutional provi-

sion forbids it to find the facts. But when the facts

are found and it is ‘obvious from the inconsisteney

between the facts as found and the general verdict

that, i the latter, the jury have misinterpreted. or

. Misayplied the law, what constitutional mandate re-

“quires that all should be set aside and® new. inquiry

made of another jury? Of what significance is a qués-

tion as to a-specifie fact? - Of what avail are special

interrogatories and special findings thereon if all that

is-to result therefrom is a ew trial, which the court’.

might grant if it were of opiniog: that the ‘general

verdict contained a wrong interpretation or applica-

tion of the rules of law! Indeed, the very thought and

value of special interrogatories ix to avoid thie neces.

13 o

sity of setting aside’a verdict and a new trial—to end

the controversy so far as the trial court is concerned

upon that single response from the jury."*

. Th the present case it was the trial judge rather than

the jury who misinterpreted the law and hence correction

could not come before the appellate stage. But the error,

once conceived, ix as easily corrected in the one case as.

in the other, and the saute principle dictates the entry of

final judgment if the potential value of special interroga-

tories istoberealived, 9 2. fb ‘7

In “Fort Scott : Mickman, supra, this Court held that

it had power to direet a yn

with special findings made Dy

without/a jury.. The Court saic

per judgment in accordance

- the Cirenit Court sitting

at pages 164-]68:

/$Tt follows, from these considerations, that the con-»-

clusion of law made by the Circuit Court on the faet«

under 6649 of. the Revised Statutes, eqdivalent to the

special verdict of a jury, Norris vr. Jackson, 9 Wall.

125; Conelin r. Insurance Co., Wall. 461, 467: lusurence

Co..v. Folsomo18 Wall. 237, JA9: Retzer vr. Wood, 109

U: S. 185; and, as sneh «special finding tovers all the

ixsues raised by the pleadings, thix court has the power,

undwy £701 of the Revised Statutes, to dirret such

my et to he entered as the special finding requires.

n eases like the present one, the. proper practice ix

‘to direct a judgment for the defendant, instead of -

awarding a new trial. National Bauk vr. lusurance Co.,

95 U. S. 673, 679; Fairfield rv. Cougty of Gallatin, 100

U.S. 47: Wright +. Blakeslee, 101 U.S. 174; People’s

Bank rv. National Bank, 101 U. SXUS8lt Wernock er.

Daris, 103.U. 8. 775: Lincoln vr. Prem. 105 U.S. O14:

Ottowa vr. Carey, WR USS. 110; Kirkbride rv. Lafayette

Co.. 108 UL S. 208; Refzer r. Wood, 109 U.S. 185:

Canada Southern Railroad Co. ¢. Gebhard, WO U.S.

527: East St. Louis vr. Zebleg, WO ULS. 321. The trial

being without error, if the finding. is <tffietent. the

same judgment ix to be given as would be given on a

yspécial verdict. Where the special finding embraces

found was erroneous. Its special finding of facts is. -

14

OL: y a part of the i issues, as in Ex parte French, 91 U. S.

423, a Aifferent rule prevails.’’

: In the present case, the answer to the special interrog-

atory, whie it does not cover every controverted issue,

is nevertheless dispositive of the entire case, unlike Er

Parte French, supra, where the facts found specially did

not justify.a judgment tor either party. Cf.°Sfewart v.

Southern Railway Co., 315 U. S. 283°(1942).

The foregoing decisions of this Court establish the neces-

sity of entry of final. judgment by. the Appellate Court® in

the absence of factors pain that the first trial _ riot

ae been fair. .

: The winition ee’ is w hether there is anything in the

case to ovetweigh the general rule in favor of final disposi-

tian. There were no errors found in the conduct of the °

.trial, and indeed none were complained of by plaintiff-

respondent. Hence the most frequent reason for granting ,

a‘ new trial was not present.

> Was ‘there anything else in the record to indicate that

the plaintiff-respondent had not chad’ a fair chance to prove

- case? |

Clearly, av full and. fair trial had been had on"the issue

of Siegrist’s presence in the ear in performance of duty.

Equally clearly, the jury had disposed of that issue in

accordance with the weight of the evidence and plaintiff's

own admissions.

On the only ‘other issue—that. of ‘notice—plaintiff-re-

spondent made repeated efforts to raise a jury question—

. and he failed—he could adduce no poet whatever.

Could the failure to raise an isste on this point stem

trom inadvertenecé? The history of the ease rules out this

“

1

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4

;

ec. 4

en ee

‘ae ae

LONG 15

‘possibility. In Ringhiser v. Chesapeake & Ohio Railroad

- Company, 354 U.S. 901 (1957), the ‘majority of the Court

rested its’ reversal of a dismissal of the complaint squarely

_upon a finding thatthe Railroad had notice that employees

continually entered the cars contrary to company rules.

(The minority members of the Court thought that even

the finding of notice would not justify a judgment for

plaintiff.) Counsel for goth sides in the ‘ease at bar had

followed the Ringhiser litigation through the courts. The .

decisions of the District Court, the Court of Appeals and

of this Court were known to plaintiff- respondent at the

_tithe of the trial of this case. Because of the great factual —

; similarity of Ringhiser and the case at bar, both ‘parties

studied the Ringhiser case closely and were aware of its

implications: It is difficult to imagine a more pointed

admomtjongse—plaintiff-respondent to prove notice if: he

| eas

In summary, the posture of the ease-in the Court of

Appeals was as Judge Swan conceived it: The answer to

the special question made mandatory a final judgment in

favor of. petitioner. The trial was free from error, and

no vital issue remained to be tried. surdice required a final

judgment for defendant. ‘

16

POINTIV.

oe “4

For the reasons ‘stated, your petitioner: prays that a

writ’ of certiorari. issue to review, the order. of the United

Statés Court of Appeals for the Second Cireuit entered

‘in this cause on February 18, 1959, and that said ‘order be :

modified to adeiocl> for. the dismissal of the ‘complaint Bi

herein.

ar submitted,

* JOHN E. DICKINSON,

| HUGH McM. RUSS,

STEPHEN H. KELLY.

;

a <.

. . >

. ® - ~~

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Oe a ee ee ee ee ee ee ee ee

17

APPENDIX

_ UNITED STATES COURT OF APPEALS

. For tue Seconp Crrevir

No. 39—Oetoher Term, 1958.

(Angeed ¢ October 24,1958 Decided February 18, 1959.)

Docket No. 25094.

Gienn C. Srecrist,

is ae Plaintiff-Respondent,

. hi . v. . ,

DELAWARE, LacKAwanna & WesTERN RarLtroap Company, -

Defendant-A ppellant,

‘ and -

Unrrep States ‘STEEL Corporation,

Defendant.

‘

Before: Swan and Moore, Circuit Judges, and

Kavrman, District Judge.

-

Appeal ina dstonhant, Delaciiite, Lackawanna & Western

Railroad Company from a judgment in favor of plaintiff :

entered on a’ jury verdict in the United States’ District.

Court for the Western District of New York, Burke, D../.,

in an action for personal injuries brought under the Fed- -

eral Employers’ Liability Act, 45 U.S. C. A. 51 oF ang.

Reversed and remanded for a new trial.

18

g

- Jonn E. Drury Esq, Buffalo, N. Y.. ( Desmond and

Drury, Buffalo, N. Y., on the brief), fgr Plaintiff-

Respondent, Glenn C. Siegrist.

Hvaxn McM. Rvss, Esq., Buffalo, N. Y. ‘(Jo

Jompany.

Moors, Circuit Judge:.- As ee ck Car

Lackawanna & Ww estern Railroad,

Defendant (appellant), Delaware, Lackawanna & West- .

ern Railroad Company (referred to as ‘‘the railroad’),

appeals from a judgment in favor of plaintiff 1 in an action

against the railroad and the United States Steel Corpora-

tion to recover for persona] injuries sustained as a result

of their alleged negligence. The action was brought against

the railroad under the Federal Employers’ ‘Liability Act

(F. EB. L. A.), 45 U. S. C..A. 51 et seq. Judgment was

entered against the railroad after trial befora the court

and a jury which found upon specific questions submitted ©

by the court: (1).that the accident was caused in part by

: negligence of the railroad; (2) that plaintiff’s negligence

contributed .to the accident; (3) that plaintiff’s negligence -

contributed 25% “to the accident, that damages were’.

$100,000 and that the verdict -against the railroad. was

$75,000 ; and (4) that plaintift was not in the gondola car

(where he was injured) in the performance of his duties.

Judgment was directed in favor of the United’States Steel

Corporation upon the written answers of the jury to the —

special questions submitted by the coat.

The restricted area of review in injury cases emu

under the F. E. L. A. does not include a redetermination

of the jury’s findings on factual issues.. However, it is

’

/

L. eae,

Esq., Hodgson, Russ, Andrews, Woods & Goodyear, 7

in the brief), for Defendant-Appellant, Delaware, -—

‘oi Se sins

within the province of the appellate court to examine the

_reeord; to ascertain whether the -jury’s determination was

made upon adeqnate instructions as ‘te the applicable prin-.

ciples of law.

Plaintiff on the night of Scien 20, 1951 was éinployed

by defendant as a ear inspector. His duties were two-fold.

‘First, when x freight train arrived‘in the Buffalo’ yard

he was to check the condition of the running gear, the

journal boxes and brakes. ‘To do this.he had to walk’along

the side of the train inspecting each. car... Second, when

not so engaged he “ta, to inspect empty hQx cars and

classify them as to the commodities they were best suited.

. tocarry. He was not reqnired to classify gondola or open

cars. On this particular night plaintiff anda fellow ep-

ployee iawied Schultz, while waiting for the arrival of.a -

freight train, were engaged in ear commodity elassifica-

tion. This work’also Fequired plaintiff*to walk alongside

the box cars being inspected. Engaged inthis task, plain-

tiff was walking on -one side, of the ears, Schultz on. the

other. There was a substaitial: amount of snow on the

ground. While this classification work was in progress the

cars contmenced to move because of a’ switching operation ‘ .

so that plaintiff and Schultz had to discontinue this work. ee

Schultz. continued on foot, but plaintiff, desirous to avoid’ "* |

walking through the snow, and to get a ride to his destina-_

- tion, swuag up on to the stirrup of a meying gondola ear.

‘The stitrup was slippery so pfaintiff then climbed ‘into - ay

the car. He thoucht the car was empty and walked to the~

forward end, bit -near the end of the. gondola he: felt a

step ) dow n indicating a difference’i in level. As he Ww as ®tand-

ing in this. ‘depression at the end of the car he heard the

clicking sound of cars taking up slack, a sign thgt the train

‘was stopping. The train didscome to an abrapt stop éans-

cr

20 ~

“3 . SS /

ing steel plates ere ini the car to shift forward and pin

— right leg betw > plates and the end of the

- ear. | ‘

"Plaintiff anh the valine for ieaiiaiine under” ‘the o*

provisions of the F. E. L.-A. and*the United States Steel

Corporation for negligence in that he was struck and. his

leg injured, by a shifting load on a train.

‘A railroad:is under a apie to use iluc eare to provide

. its employees with a safe place in which to work, *The area |

in which plaintiff was required to work was on the paths

alongside the tracks from which he could perform his.

inspéction duties. The accident, however, did not oeeur in

* this area. ‘ No part of his duties ealled-for his being in a

gondola car at any time or to-hitch rides on moving cars..

In fact plaintiff admitted that. he was familiar with the

-railroad’s rule which reads ‘‘Keep off cars and engines

except in performance of duty.’’ Q

In enacting the F. E. L. A: Congress 5 did not prov ide that

a railroad should he liable in damages for any injury suf-

fered by arifemploy ee but only for those injuries resulting

‘in whole or in part from its negligence. Congress did not

defirie “negligence” for purposes of the Act. In Urie v.°

Thompson, 337 U. S. 163° (1949), the court, said, speaking

of 45 U.S. C. A. 51 which governs this case :

‘The section does not define negligenge, leaving that -

, question to be determined, as the Missouri Supreme -

Court said, ‘by the common law principles as: estab-

lished and applied in the federal courts.’ . 352 Mo. at

218, Erie R. Gg. v. Tompkins, 304 U. S. 64, has no

application. * * .* Federal decisional law formulating

_ and applyipg the eoneept governs * * * ’’ (p. st4).

The principle, ho. ~ r, merely confines ,this court to

Federal, as opposed to New York, law in construing the

ih he 2

Gs eB a pean Me 5) ee RES et

Sa-—ath ec sd Dit rex Ges rer les et ER DONO

°

aul tee.

m term. As the Supreme Co

-

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14, =.

hid ina later case, Morissette

v. United States, 342 U.S. 246° (1952):

eo ‘And where ( ‘ealiieas Horrows terms of art in which

aire ac¢umulated the legal tradition and meaning of

‘ centuries of practice, it presumably knows and adopts

; the cluster of ideas that were attached to each bor-

rowed word in the body of learning from which. it*

. was taken and the meaning its use will convey té the

judicial ‘mitid unless‘ otherwise instructed, In such

‘ease, absence of contrary direction may be -taken as

satisfaction with widely accepted definitions, not as.a

departure from them’’ (p. 263).

_ Negligence, how ever, implies a duty. The duty Was to

provide a safe place to work. There is no evidence that

plaintiff’ s work. area was in any. way unsafe, .To bring

this area into'the field for wWhielr the railroad might be

‘responsible requires an extension of the area into fe, gon-

. dola car in which the injury oceurred. Therefore to extend

Plaintiff's work area into the condola ear the jury under

“appropriate, -instructions addressed specifieally to this

, Point must determine that the railroad had notice or should

“have had’ notice that ‘employees such, as plaintiff used mov-

ing cars as a means of locomotion frem one part of the

freight yard to another thus enlarging plaintiff’s work.

‘area to the interior of the gondola, The doctrine of notice,

was’ especia!lysemphasized_by the Supreme Court in Ring-

hiser v. Chesapeake &. Offo Railway Co., 354-0. 8. 901

(1957), in which the majority said that there was evidence

‘*that to respondent's krwledge employees used gondola

ears for the purpose."’ This essential ingredient w as fur-

ther st, ‘essed hy the comment that ‘‘there were probative

facts from which the jury could find that respondent was

or should have been aw are of conditions whieh created \a

-\

, = .

likelihood that the petitioner would suffer just such an

injury as he did.’

a :

The verdict here, however, does not rest upon such a_

‘charge. The trial court charged that the railroad owed

a duty td conduct ifs operation’ ineluding the switching

af its trains and the carrying of freight in a manner rea-

sonably safe ynder all the circumstances of the case. But

one of the vital circumstances was know ledge that plain-

tiff might be in the car. . The mere ‘abrupt stop or the shift- °

ing of the stech absefht plaintiff would not have given rise

to liability:any more than the presence of a large or loose

stone on a roadbed footpath would Imve done so. It ‘was

. the fact that the loose stone was in a work area which the

plaintiff-had to traverse in connection with his dutiés so

that he was likely to step on it which created the liafility

* “fn Gibson ri-Thompson, 355 U. S. 18 (1957). See also,

Ferguson r. St. Louts-S, F. R. Co... 356 U. S. 41 (1958).

The trial suai also charged that the salleend had a duty

to inspect freight shipments to see that we were properly

loaded and related this duty to that providing its em-

ployees with a safe place to work: he miggonception that

such a charge might well havé created. in-the minds of the

jury was that the gondola.ear was an area in which the

railroad Rnew that plaintiff might be.- In short, thé error

-was in the failure to charge that the jury must first deter-

mine whether there were any facts from which the rail-

road should have known or be resurhed to have known that

‘the moving gQndola car was a place in which plaintiff might

be riding. Had the jury made such a fact finding in plap-

tiff’s favor then but only then would the gondola car have

been brought within the safe work area rule. The jurt

- actually found that plaintiff was not in the gondola. car in

the performang? of his duties. Had the jury also found

;

ee 8 S&S “Sea @ ~<oe

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a

that the railroad was not on notice, actually or éonstruc-

tively, that an employee gigs! be riding in a carthe verdict

upon a charge containing this clement might well have

> heen different. oh .°

Nor was the notice requirement aiteued into contributory

negligence by plaintiff’. willful violation of the **Keep off?

cars * * *!* rule. Such_a vialation could be considered in

determining contributory negligence but first the jury jad

* to reach a conclusion as to liability under applicable prin-

gies of law.

The judgment. against defendant Delawart, Lackawanna

& Western Railroad Conipany should-be reversed and the

ease remanded for a new-trial. ars

>

‘Radiata

Swan, ¢ ‘ireuit J udge (dissenting) : .

Since-the jury found that plaintiff was not in the gon-

dola ear in the performance of his duties, and since there

was no evidence that the company rule had ever heen vio-

_ lated before, I see no reason for the trial judge to havA

" charged on the subject of notice tv the company that an

employee might be riding in the gondola. In my opinion

‘+ plaintiff's (stc.) motion to dismiss the complaint should

‘have been granted.

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