# Petition for Writ of Certiorari — Delaware, Lackawanna & Western Railroad v. Siegrist > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0901%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 360 U.S. 917 ## Text 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 — BATAVIA TIMES Law POINTERS BATAVIA, HY ; = - — = * e : e y TABLE OF CONTENTS. J ; : PAGE Referdkee to Opinion Below e 1-7 ‘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 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 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 4 g 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 . ® - ~~ % > . ! ve P 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 - « . 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 @ ~ 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. - ; «. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0901%3A2. Public record. Not legal advice.