Petition for Writ of Certiorari — Mosco v. Baltimore & Ohio Railroad

- | Supreme Court, U.S,

87 1 9 2 FILED

JUL 208%

JOSEPH F. SPANIOL, JR,

No. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

LEE A. Mosco, JR.,

Petitioner

Vv.

THE BALTIMORE AND OHIO RAILROAD COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAWRENCE A. KATZ *

JOSEPH A. COFFEY, JR.

COFFEY & KAYE

Suite 718, Two Bala Plaza

Bala Cynwyd, Pa. 19004

(215) 668-9800

Attorneys for Petitioner,

Lee A. Mosco, Jr.

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Did the United States Court of Appeals for the_

Fourth Circuit ignore the intent of Congress that

issues of fact, under the Federal Employers’ Liability

Act and the Federal Boiler Inspection Act, are to be

determined by a jury, when it affirmed the trial

court’s granting of a directed verdict in favor of the

railroad and against the injured employee under the

Boiler Inspection, where there was evidence by which

the jury could find that the employee had been pro-

vided with a locomotive engine which was unsafe to

operate in the service to which it was put, and was in

violation of federal regulations, and that this was a

cause of the employee’s injuries.

2. Did the United States Court of Appeals for the

Fourth Circuit fail to properly administer the Federal

Employers’ Liability Act and the Federai Boiler In-

spection Act when, contrary to the decisions of this

court, it affirmed the trial court’s granting of a di-

rected verdict in favor of the railroad and against

the injured employee under the Boiler Inspection,

where there was evidence by which the jury could

find that the employee had been providéd with a

locomotive engine which was unsafe to operate in the

service to which it was put, and was in violation of

federal regulations, and that this was a cause of the

employee’s injuries.

ii

PARTIES TO THE PROCEEDINGS

All parties to the proceeding in the Court of Appeals

are listed in the caption. Lee A. Mosco, Jr., an individ-

ual, is a railroad employee. The Baltimore and Ohio

Railroad Company, a corporation, is an interstate rail-

road carrier.

TABLE OF CONTENTS

ty 8) By 4 1) yy | |

PARTIES TO THE PROCEEDINGS .........................-..

pe igo | yy)

TL ee eR

STATEMENT OF JURISDICTION ...............2...2.........

STATUTORY PROVISIONS INVOLVED .........0000....

ee | eS

BASIS FOR FEDERAL JURISDICTION W000...

REASONS FOR GRANTING THE WRIT ....................

I.

II.

BECAUSE THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

IGNORED THE INTENT OF CONGRESS

THAT ISSUES OF FACT UNDER THE FED-

ERAL EMPLOYERS’ LIABILITY ACT AND

THE FEDERAL BOILER INSPECTION ACT

ARE TO BE DETERMINED BY A JURY........

BECAUSE THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

FAILED TO PROPERLY ADMINISTER THE

FEDERAL EMPLOYERS’ LIABILITY ACT

AND THE FEDERAL BOILER INSPECTION

ACT AND IN ADMINISTERING THOSE

ACTS FAILED TO FOLLOW DECISIONS OF

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ha eecceinaactoabnhemnimacaancesencostenssentessscecasee

iv

TABLE OF CONTENTS—Continued

APPENDIX

Court of Appeals Opinion of April 21, 1987 ..........

Transcript of Proceedings Before the District

Court Incorporating the District Court’s Order

2g ere

Petitioner’s Exceptions to the District Court’s

Instructions to the Jury for Failure to Charge

on the Federal Boiler Inspection Act -.................

Civil Judgment in Favor of the Defendant and

Against the Plaintiff in the United States Dis-

trict Court for the District of Maryland, Civil

Action File Number HAR-84-4228, dated Feb-

RIE Ti: TD ccecceercecttenitniiatatnntnnieiennnsentipiniemie

GD EBA 6 Tae crecencnecnesecinesescscntinthenatengynteneniattentmnitinnsanaatines

49 C.F.R. §§ 229.7, 229.11 and 229.45 ....................-----

Page

la

12a

16a

v

TABLE OF AUTHORITIES

Cases Page

Atchison, Topeka & Santa Fe R. Co. v. Buell, ——

U.S. ——, 94 L.Ed.2d 563 (1987) ......................... 8,9

Bailey v. Central Vermont Ry., Inc., 319 U.S. 350

EIEIITED -nisentaintiechiietnitusieintaniniienaianinsamnndleiaseleitaddinissinesthane 6,7

Blair v. Baltimore & Ohio R. Co., 323 U.S. 600

SERIE sleiehicrhanbensvcesiienesenshteiiiiliepditiaesaninseagisicniplabitiialipesaeiheiietinn 7

Calabritto v. New York, New Haven and Hartford

R.R. Co., 287 F.2d 394 (2d Cir. 1961) _............... 10

Coray v. Southern Pacific Co., 335 U.S. 520

(yO TESST Sree ek TS re Nee ee 9

Ellis v. Union Pacific Co., 329 U.S. 649 (1947) ....... 8,11

Jacob v. City of New York, 315 U.S. 752 (1942)... 6,7

Lavender v. Kurn, 327 U.S. 645 (1946) -................ 8,11

Lilly v. Grand Trunk Western R. Co., 317 U.S. 481

TOS CRETE EN A ee a 8, 10

Mosco v. Baltimore and Ohio R. Co., 817 F.2d 1088

FR ly See oe a ee 1

Myers v. Reading Co., 331 U.S. 477 (1947) ............. 8,11

Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500

IIIT os ciac: nididenndabachapaanshkdedieiohdnmnemiibsanadiabnoneaate chess 6, 7, 8,9

Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326

(1958), rehearing denied, 356 U.S. 978 (1958)... 8

St. Louis Southwestern Ry. Co. v. Williams, 307

ge gt aR re ee 10

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54

2 pA Ah EN ee on 6

Urie v. Thompson, 337 U.S. 163 (1949) _............... 7,8,9

Whelan v. Penn Central Co., 503 F.2d 886 (2d Cir.

I cl ae ie 10

Wilkerson v. McCarthy, 336 U.S. 53 (Douglas, J. .

IR A 7,8

Statutes and Regulations

I ea 2

ES ES Oa ee OE 2

i GREYS SIN a oe OBE 1, 2, 3, 9, 10

A on RE ERC 1, 2,5

vi

TABLE OF AUTHORITIES-—-Continued

45 U.S.C. § 56 .....

49 C.F.R. § 229.7 .......---------0e0--00-

49 C.F.R. § 229.11 ................

49 C.F.R. § 229.45

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No.

Lee A. Mosco, JR.,

Petitioner

v.

THE BALTIMORE AND OHIO RAILROAD COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner, an injured railroad employee, respectfully

prays that a writ of certiorari be issued to review the

judgment of the United States Court of Appeals for the

Fourth Circuit, entered in this case on April 21, 1987.

Petitioner goes so because that judgment deprived Peti-

tioner of his basic and fundamental right to a trial by

jury, which is part and parcel of the remedy afforded

railroad workers by Congress under the Federal Employ-

ers’ Liability Act, 45 U.S.C. § 51 and the Federal Boiler

Inspection Act, 45 U.S.C. § 23.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit is reported at 817 F.2d 1088 (4th

Cir. 1987). The district court opinion affirmed by the

decision below is not reported. Relevant portions of the

trial transcript, which contain the opinion of the lower

court, are contained in the Appendix at pages 12a

through 17a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on April 21, 1987.

There are no Orders respecting rehearing or extensions

of time within which to petition for certiorari. This

Court has jurisdiction to review the judgment of the

Court of Appeals under 28 U.S.C. §1254(1) and 28

U.S.C. § 2106.

STATUTORY PROVISIONS INVOLVED

This case involves the deprivation by the lower courts

of the Petitioner’s right to a trial by jury for claims

brought pursuant to the Federal Employers’ Liability

Act, 45 U.S.C. § 51 and the Federal Boiler Inspection Act,

45 U.S.C. § 23.

Section 51, Title 45 of the United States Code, com-

monly referred to as the Federal Employers’ Liability

Act, provides as follows:

“Every common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any—of the States and Ter-

ritories, or between the District of Columbia or any

of the States or Territories and any foreign nation

or nations, shall be liable in damages to any person

suffering injury while he is employed by such carrier

in such commerce, or, in case of the death of such

employee, to his or her personal representative, for

the benefit of the surviving widow or husband and

children of such employee; and, if none, then of such

employee’s parents; and, if none, then of the next of

kin dependent upon such employee, for such injury

or death resulting in whole or in part from the neg-

ligence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insuffi-

ciency, due to its negligence, in its cars, engines,

appliances, machinery, track, roadbed, works, boats,

wharves, or other equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of inter-

state or foreign commerce; or shall, in any way di-

rectly or closely and substantially, affect such com-

merce as above set forth shall, for the purposes of

this chapter, be considered as being employed by such

carrier in such commerce and shall be considered as

entitled to the benefits of this chapter.”

Section 23, Title 45 of the United States Code, com-

monly referred to as the Federal Boiler Inspection Act,

provides as follows:

“It shall be unlawful for any carrier to use or permit

to be used on its line any locomotive unless said loco-

motive, its boiler, tender and all parts and appur-

tenances thereof are in proper condition and safe to

operate in the service to which the same are put,

that the same may be employed in the active service

of such carrier without unnecessary peril to life or

limb, and unless said locomotive, its boiler, tender,

and all parts and appurtenances thereof have been

inspected from time to time in accordance with the

provisions of sections 22 to 29 and 31 and 34 of this

title and are able to withstand such test or tests as

may be prescribed in the rules and regulations here-

inafter provided for.”

STATEMENT OF THE CASE

Petitioner, Lee A. Mosco, Jr., an injured railroad em-

ployee, filed his Complaint against the Respondent, The

Baltimore and Ohio Railroad Company, an interstate rail

carrier, in the United States District Court for the East-

ern District of Pennsylvania on July 31, 1984. On Oc-

tober 9, 1984, this action was transferred to the United

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4

States District Court for the District of Maryland. It

was assigned to the Honorable John R. Hargrove.

A trial before a jury was begun on February 24, 1986.

On February 25, 1986, the trial court granted a directed

verdict, in favor of the Respondent, on Petitioner’s claims

under the Federal Boiler Inspection Act. On February

26, 1986, the jury returned a verdict in favor of Respond-

ent. On February 26, 1986, a judgment was entered in

favor of the Respondent and against the Petitioner.

On March 18, 1986, Petitioner filed a Notice of Appeal

to the United States Court of Appeals for the Fourth

Circuit, and on March 25, 1986, he filed an Amended

Notice of Appeal. The case was argued before the Court

of Appeals on January 8, 1987. On April 21, 1987 the

Court of Appeals affirmed the judgment of the trial

court.

On August 8, 1988, Petitioner was employed by the

Respondent as a locomotive engineer. Petitioner was oper-

ating a freight train called the Orange Blossom Trailer

Train from the Potomac Yard in Virginia to Willmer,

Delaware. At approximately 8:35 P.M., Petitioner was

seated on the right-hand engineer’s seat of the locomotive,

four inches from his right side window. The right win-

dow was about three feet wide by two and one-half feet

high. It had two panes of glass which both slid fully open

from the middle. The side windows were dirty and the

dirt obstructed and distorted vision through them. The

locomotive cab was unbearably hot due to the outside tem-

perature and humidity, engine heat and extremely inade-

quate ventilation. Employees were often forced to keep

the windows open because of poor locomotive ventilation.

Petitioner’s run required him to pass through the Vir-

ginia Avenue Tunnel in Washington, D.C. Although rail-

road employees were regularly subjected to stonings and.

other objects thrown at them and their train along the

routes they traveled, this was a particularly dangerous

5

area. Juveniles and others routinely hurled objects at

passing trains from embankments along the track near

the tunnei.

At approximately 8:30 P.M., Petitioner approached the

south end of the tunnel. He was required to proceed no

faster than 10 miles per hour. His right window had

been open due to the unbearable heat and the poor ven-

tilation. As he approached this dangerous area, he slid

his right window partially closed. He could not close it

fully because of the heat and because at this low speed,

his speed regulator was inaccurate, requiring him to

judge his speed by visually observing the ground. Dirt

on his window obstructed and distorted his view, and

therefore he had to keep his window open 8 inches, out

of the possible 36 inches, to see clearly. When Petitioner

was approaching the tunnel entrance, he was struck on

the right side of his head by a hard foreign object which

came through the window from outside the engine.

Petitioner sustained a concussion and post-concussion

syndrome with visual injury. He was disabled from his

railroad employment from August 3, 1983 through April,

1985. Although he was able to return to work, his com-

plaints continued through the date of the trial.

BASIS FOR FEDERAL JURISDICTION

The basis for federal jurisdiction in the court of first

instance was the Federal Employers’ Liability Act, 45

U.S.C., §§ 51, et seq., particularly § 56. This section pro-

vides in relevant part:

“Under this chapter an action may be brought in a

district court of the United States, in the district of

the residence of the defendant, or in which the cause

of action arose, or in which the defendant shall be

doing business at the time of commencing such ac-

tion. The jurisdiction of the courts of the United

States under this chapter shall be concurrent with

that of the courts of the several States.” 45 U.S.C.

§ 56.

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6

REASONS FOR GRANTING THE WRIT

I. BECAUSE THE UNITED STATES COURT OF AP-

PEALS FOR THE FOURTH CIRCUIT IGNORED

THE INTENT OF CONGRESS THAT ISSUES OF

FACT UNDER THE FEDERAL EMPLOYERS’ LIA-

BILITY ACT AND THE FEDERAL BOILER IN-

SPECTION ACT ARE TO BE DETERMINED BY

A JURY.

II. BECAUSE THE UNITED STATES COURT OF AP-

PEALS FOR THE FOURTH CIRCUIT FAILED TO

PROPERLY ADMINISTER THE FEDERAL EM-

PLOYERS’ LIABILITY ACT AND THE FEDERAL

BOILER INSPECTION ACT AND IN ADMINIS-

TERING THOSE ACTS FAILED TO FOLLOW DE-

CISIONS OF THIS COURT.

Petitioner, an injured railroad employee, was improp-

erly denied the right to have his claims under the Federal

Boiler Inspection Act determined and resolved by a jury.

This Court has long recognized that “(t)he right to trial

by jury is a basic and fundamental feature of our system

of federal jurisprudence.” Bailey v. Central Vermont Ry.,

Inc., 319 U.S. 350, 854 (1943); Jacob v. City of New

York, 315, U.S. 752 (1942); Tiller v. Atlantic Coast Line

R. Co., 318 U.S. 54, 67-8 (1943). This right is protected

by the Seventh Amendment to the Constitution of the

United States and is part and parcel of the remedy af-

forded railroad workers by Congress under the Federal

Employers’ Liability Act (FELA). Bailey, supra at 354;

Tiller, supra at n.30. It was Congress’ intent, in estab-

lishing the employees’ remedies under the FELA, that a

jury determine whether the railroad’s conduct played any

part in the employee’s accident. Rogers v. Missouri Pacific

R.R. Co., 352 U.S. 500, 508-09 and n. 18 (1957). This

Court has observed that to deprive an injured railroad

worker “of the benefit of a jury trial ... is to take away

a goodly portion of the relief which Congress has afforded

7

them.” Bailey, supra at 354, Blair v. Baltimore & Ohio

R. Co., 323 U.S. 600, 602 (1945).

The right to a jury trial, because it is “so fundamental

and sacred to the citizen,” should be jealously guarded by

the courts. Jacob, supra at 752-53. Therefore, this Court

has historically been vigilant to exercise its power of re-

view in any case where it appears that the litigants have

been improperly deprived of a jury determination. Like-

wise, this Court has effectuated the Congressional inten-

tion of securing to injured railroad workers the right

to a jury trial by granting certiorari where this right

has been denied. This granting of certiorari has been

intended to correct instances of “improper administration

of the Act to prevent its erosion by narrow and nig-

gardly construction.” Rogers, supra at 509-510; Wilker-

son v. McCarthy, 336 U.S. 58, 70-73 (Douglas, J. con-

curring. )

The United States Court of Appeals for the Fourth

Circuit, and the trial court, ignored the important prin-

ciple of a right to trial by jury. Therefore, this Court

is urged to grant certiorari and exercise its supervisory

powers over the federal courts to correct this serious

departure from the accepted and usual course of judicial

proceedings under, and the administration of, the FELA

and the Federal Boiler Inspection Act.

The FELA and the Federal Boiler Inspection Act are

federal statutes’ which were enacted by Congress in re-

sponse “to the special needs of railroad workers who are

1 The Federal Boiler Inspection Act is in effect an amendment to

the FELA. It, and the Federal Safety Appliances Act, are supple-

mental to the FELA. Violation of the Act’s duty to provide safe

equipment constitutes “negligence per se” and dispenses with the

need by an injured employee to prove the railroad’s negligence.

Neither contributory negligence nor assumption of the risk is a

defense to the “absolute and continuing duty” of the railroad under

the Boiler Inspection Act. Urie v. Thompson, 337 U.S. 163, 179-190,

n.380 (1949); Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500,

n.13 (1957).

8

daily exposed to the risks inherent in railroad work and

are helpless to provide adequately for their own safety.”

Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 330

(1958), rehearing denied, 356 U.S. 978 (1958). The

Acts were designed to protect employees and “to put on

the railroad industry some of the cost for the legs, eyes,

arms and lives which it consumed in its operations.”

Wilkerson, supra at 68 (Douglas, J., concurring); Urie

v. Thompson, 337 U.S. 1638, 181, n. 20 (1949). Accord-

ingly, these statutes are, and have been, liberally inter-

preted to fully effectuate their remedial and humanitarian

purposes. Atchison, Topeka & Santa Fe R. Co. v. Buell,

USS. , 94 L.Ed. 2d 568, 570-71 (1987) ; Lilly v.

Grand Trunk Western R. Co., 317 U.S. 481, 486 (1943) ;

Urie, supra at 181, n. 20, n. 34.

These Acts have been held to require that only the

rarest case not be sent to the jury. A directed verdict

in favor of the railroad is only appropriate “when there

is a complete absence of probative facts” to support a

finding of liability. Lavender v. Kurn, 327 U.S. 645, 653

(1946) ; Myers v. Reading Co., 331 U.S. 477, 485 (1947).

“The choice of conflicting versions of the way the acci-

dent happened, the decision as to which witness was

telling the truth, the inferences to be drawn from un-

controverted as well as controverted facts, are questions

for the jury.” Ellis v. Union Pacific Co., 329 U.S. 649,

653 (1947). The appellate court’s function is exhausted

when an evidentiary basis becomes apparent, even if it

feels that another conclusion is more reasonable. Laven-

der, supra at 653. This evidentiary basis can be entirely

circumstantial. Circumstantial evidence is not only suf-

ficient, but may also be more certain, satisfying and per-

suasive than direct evidence. Rogers, supra at n. 17. ~

The Federal Boiler Inspection Act requires that loco-

motives, and all parts and appurtenances thereof, be “in

proper condition and safe to operate in the service to

which the same are put, that the same may be employed

/

§

9

in the active service of such carrier without unnecessary

peril to life or limb.” 45 U.S.C. § 23. It further provides

that the locomotive be in compliance with regulations prom-

ulgated by administrative agencies. Violation of agency

regulations also give rise to damage suits. Urie, supra

at 191. If that standard is not met, and the failure to

provide a proper and safe locomotive “played any part,

even the slightest, in producing the injury or death for

which damages are sought,” Rogers, supra at 506; Buell,

supra at n. 8; Coray v. Southern Pacific Co., 335 U.S.

520, 524 (1949), the railroad is liable to the injured

employee.

In this case there was clear evidence by which the jury

could have found that the railroad violated the Federal

Boiler Inspection Act and that its violation was a cause

of Petitioner’s injuries. The evidence established that the

Petitioner, a locomotive engineer, was struck in the head

by a hard object, which entered the cab from outside

through the right side window. Although the window

was made of shatter-proof material and provided protec-

tion to the cab’s occupants when closed, the evidence es-

tablished that Petitioner had to leave the window open

while operating the locomotive. As the United States

Court of Appeals for the Fourth Circuit summarized the

evidence:

“At the time the injury occurred, Mosco was

approaching the Virginia Avenue Tunnel in Wash-

ington, D.C. * * * He... stated that on the day

of the accident, he was operating the locomotive with

its right window . . . open, in order to cool and ven-

tilate the cab of the locomotive.” (Appendix 2a)

Evidence of co-workers confirmed that due to poor ven-

tilation locomotives could not be operated during the sum-

mer ? without opening the windows. Its summary of facts

continued,

2 This accident occurred on August 8, 1983.

10

“As he approached the Virginia Avenue Tunnel,

Mosco opened the window .. . to a width of about

eight inches. He testified that it was necessary for

him to open the window to check his ground speed,

because the window was so dirty he could not other-

wise see out.” (Appendix 2a)

“Mosco testified that on the day his injury occurred,

the windows of the locomotive cab were so dirty that

he had to open them to see out. He also testified that

unless the windows were kept open, the interior of

the cab became unbearably hot and inadequately

-ventilated.” (Appendix 6a-7a)

In addition to the absolute obligation to provide a loco-

motive which is “safe to operate”, 45 U.S.C. § 23, 49

C.F.R. §§ 229.7, 229.45 (Appendix 19a), the railroad

was required to provide a locomotive having cab windows

which “provide(d) an undistorted view of the right-of-

way for the crew from their normal position in the cab”

and which had “proper ventilation” 49 C.F.R. § 229.11

(Appendix 19a).

There was ample evidence for the jury to find that the

railroad violated the Boiler Inspection Act, and that its

violation caused Petitioner’s accident and injuries. The

jury could have found, based on Petitioner’s testimony,

that the locomotive did not comply with 49 C.F.R.

§ 229.11. The jury could have found that the inability

to see out of the side window ° violated the continuing duty

to provide an “undistorted view of the right of way.” The

jury could have found that the unbearably hot locomotive

cab violated the duty to provide “adequate ventilation”.

3 Foreign substances on an engine, even if caused by natural

conditions, which render a locomctive, or part thereof unsafe to

operate, can render a carrier liable under the Federal Boiler Inspec-

tion Act. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481

(1948); Calabritto v. New York, New Haven and Hartford R.R.

Co., 287 F.2d 394 (2d Cir. 1961); Whelan v. Penn Central Co., 503

F.2d 886 (2d Cir. 1974); St. Louis Southwestern Ry. Co. v.

Williams, 307 F.2d 147 (5th Cir. 1968).

11

This evidence could have also supported the conclusion that

the railroad violated the general obligation to provide a

safe locomotive. Finally, the jury could have found that

these unsafe conditions were the reason that the right

side window was open and that these unsafe conditions

played a part, even if only the slightest, in the foreign

object entering the cab and striking the Petitioner.

The trial court, in directing a verdict against the Pe-

titioner on his Boiler Inspection Act claims, and the

United States Court of Appeals for the Fourth Circuit,

in affirming that trial court action, improperly usurped

the jury’s role. The lower courts imposed their own con-

clusions of fact, made their own inferences and reached

their own conclusions as to credibility. These were mat-

ters which were clearly reserved for the jury. Myers,

supra at 485; Ellis, supra at 653; Lavender, supra at

653. Specifically, some of the questions which the jury

should have been allowed to consider were: Was Mr.

Mosco’s testimony credible?; Was Mr. Mosco unable to

see out of his right side window without opening it?;

What was the extent of the window’s visibility obstruc-

tion?; Why was the window obstructed?; Was the condi-

tion of the window contrary to the commands of 49

C.F.R. § 229.1127; Was the cab ventilation adequate?;

What were the ventilation conditions in the cab? Who

was responsible for the ventilation conditions in the cab?;

Was the cab ventilation contrary to the commands of 49

C.F.R. § 229.11; Did the dirty right side window play

any part, even the slightest, in Mr. Mosco’s accident and

injuries?; Did the inadequate ventilation play any part,

even the slightest, in Mr. Mosco’s accident and injuries? ;

Was the locomotive unsafe and did it play any part, even

the slightest, in causing Mr. Mosco’s accident and in-

juries?

These questions were answered “no” by the lower

courts. But, as noted before, these questions should have

never been considered by the courts as they were solely

12

for the jury to determine. The failure of the lower courts

to permit those issues to go to the jury, where there was

not a complete absence of probative facts, was improper.

It deprived Petitioner of his basic and fundamental right

to a trial by jury, which is both guaranteed by the Sev-

enth Amendment to the Constitution of the United States

and is part and parcel of the remedy afforded him by

Congress through the Federal Employers’ Liability Act

and The Federal Boiler Inspection Act.

CONCLUSION

For the reasons set forth above, Petitioner respectfully

prays that this Honorable Court grant his petition for

certiorari.

Respectfully submitted,

LAWRENCE A. KATZ

JOSEPH A. COFFEY, JR.

CoFFEY & KAYE

~ Suite 718, Two Bala Plaza

Bala Cynwyd, Pa. 19004

(215) 668-9800

Attorneys for Petitioner,

Lee A. Mosco, Jr.

Dated: July —, 1987.

APPENDIX

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 86-2037

LEE A. Mosco, JR.,

Plaintiff-Appellant,

versus

BALTIMORE & OHIO RAILROAD,

Defendant-A ppellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore

John R. Hargrove, District Judge—(CA 84-4228)

Argued: January 8, 1987 Decided: April 21, 1987

Before PHILLIPS AND ERVIN, Circuit Judges, and

MERHIGE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

Lawrence A. Katz (Joseph A. Coffey, Jr. on brief) for

appellant; Ranson J. Davis (H. Russell Smouse; Nancy

2a

S. Allen; C. Keith Meiser; Melnicove, Kaufman, Weiner,

Smouse & Garbis, P.A. on brief) for appellee.

ERVIN, Circuit Judge:

Plaintiff Lee A. Mosco, Jr., appeals from a judgment

entered in favor of defendant Baltimore & Ohio Railroad

(“B & O”) in this case involving claims under the Fed-

eral Boiler Inspection Act, 45 U.S.C. § 23 (1982), and

the Federal Employers’ Liability Act (“FELA”), 45

U.S.C. §§ 51 et seg. (1982). Although we do not entirely

agree with the reasoning of the district court, we affirm

the judgment for the B & O for the reasons stated below.

Mosco was employed by the B & O as a locomotive

engineer. He was injured when a rock, or some similar

object, came through the open window of the locomotive

he was operating and struck him in the head. Although

the windows of the locomotive were made of shatter-proof

material, they were not equipped with any protective

screens, bars, grates or similar devices.

At the time the injury occurred, Mosco was approach-

ing the Virginia Avenue Tunnel in Washington, D.C. He

testified that he had been stoned by juveniles in this area

on a number of occasions, and that he had reported these

stoning incidents to the B & O. He further stated that

on the day of the accident, he was operating the locomo-

tive with its right window two to three inches open, in

order to cool and ventilate the cab of the locomotive. As

he approached the Virginia Avenue Tunnel, Mosco opened

the window further to a width of about eight inches. He

testified that it was necessary for him to open the win-

dow to check his ground speed, because the window was

so dirty that he could not otherwise see out.

Before trial began, the B & O made a motion in limine

to preclude Mosco from offering any evidence concerning

the absence of screens, bars, grates or similar devices

from the windows of the locomotive’s cab, and to prevent

—

8a

Mosco from contending that the absence of such protec-

tive devices constituted a violation of the Boiler Inspec-

tion Act. The district court granted this motion and, at

the close of Mosco’s case, directed a verdict for the B & O

on the Boiler Inspection Act claim. Mosco’s FELA claim

went to the jury, and the jury returned a verdict for the

B&O.

Although Mosco makes numerous assignments of error,

his primary contention is that the district court erred in

granting the B & O’s motion in limine and in later di-

recting a verdict for the B & O on the Boiler Inspection

Act claim. In our view, the district court acted properly

in granting the B & O’s motions in limine and for di-

rected verdict, although we reach this conclusion for dif-

ferent reasons than those relied upon by the district

court.

The Boiler Inspection Act prohibits common carriers

by railroad from operating any locomotive unless the

“locomotive, its boiler, tender, and all parts and appur-

tenances thereof are in proper condition and safe to op-

erate in the service to which the,same are put, that the

same may be employed in the active service of such car-

rier without unnecessary peril to life or limb... .” 45

U.S.C. § 28. The Act also prohibits the operation of any

locomotive that has not passed certain tests and inspec-

tions prescribed in the applicable rules and regulations.

Id. The Federal Railroad Administration has promul-

gated regulations concerning locomotive safety standards

and inspections. See 49 C.F.R. §§ 200 et seg. (1986).

The Boiler Inspection Act imposes upon carriers by

railroad an absolute duty to maintain their locomotives

in safe and proper condition. Lilly v. Grand Trunk

Western Railroad Co., 317 U.S. 481, 485 (1948). Car-

riers that violate the Act may be held liable to employees

who are injured as a result of the violation. See, e.g.,

4a

Lilly, 317 U.S. at 485; Green v. River Terminal Railway

Co., 763 F.2d 805, 810 (6th Cir. 1985).

In this case, the essence of Mosco’s Boiler Inspection

Act claim was that the locomotive in which he was in-

jured was not safe to operate without screens, bars,

grates or similar protective devices over the windows of

the locomotive’s cab. Mosco claimed that such protective

devices were necessary to make the locomotive safe, be-

cause it was often necessary to operate the locomotive

with its windows open. :

We believe that the district court incorrectly appre-

hended the nature of the duty imposed by the Boiler In-

spection Act in granting the B & O’s motion in limine.

The district court was of the opinion that a carrier can-

not violate the Act so long as it complies with the appli-

cable safety and inspection regulations promulgated by

the Federal Railroad Administration. As the district

court correctly noted, the B & O had complied with the

regulation requiring safety glazing of locomotive cab

windows. See 49 C.F.R. § 223. The district court be-

lieved that the B & O’s compliance with this regulation

satisfied its duty under the Boiler Inspection Act. Ac-

cordingly, the district court excluded the evidence con-

cerning the absence of screens, bars, grates or similar

protective devices from the cab windows that Mosco in-

tended to offer to prove a violation of the Boiler Inspec-

tion Act.

We disagree with the district court’s rationale for

granting the B & O’s motion in limine. As other courts

have observed, a carrier may violate the Boiler Inspec-

tion Act in one of two ways. First, it may fail to com-

ply with the regulations promulgated by the Federal

Railroad Administration. Compliance with these regu-

lations is not, however, the only duty imposed by the

Act. The Act also imposes a broader duty on carriers

to keep all the parts and appurtenances of their loco-

ES Regt LAO a ) LE

WAS a RR wee TL TAEL

5a

motives in proper condition and safe to operate without

unnecessary peril to life or limb. Thus, even if a carrier

complies with the regulations, it may still violate the

Act if the parts or appurtenances of its locomotives are

otherwise unsafe. Contrary to the district court’s view,

“Tt]he argument that there can be no violation of the

Act absent a violation of some regulation or order of

the . . . Federal Railroad Administration is without

merit.” Herold v. Burlington Northern, Inc., 761 F.2d

1241, 1246 (8th Cir.), cert denied, 106 S.Ct. 208 (1985).

Accord Whelan v. Penn Central Co., 503 F.2d 886, 890

(2d Cir. 1974); St. Louis Southwestern Railway Co. v.

Williams, 397 F.2d 147, 149-51 (5th Cir. 1968); Cala-

britto v. New York, New Haven & Hartford Railroad

Co., 287 F.2d 394, 396 (2d Cir.), cert denied, 366 U.S.

928 (1961).

This is not to say, however, that liability under the

Boiler Inspection Act may be imposed in every case in

which it is alleged that a carrier’s failure to install some

device on a locomotive rendered the locomotive unsafe.

The Act imposes on carriers only the duty to maintain

the parts and appurtenances of their locomotives in safe

and proper condition, and the term “parts and appur-

tenances” does not include every item of equipment that

conceivably could be installed on a locomotive. Rather,

as the Supreme Court has stated:

Whatever in fact is an integral or essential part of

a completed locomotive, and all parts or attachments

definitely prescribed by lawful order of the Inter-

state Commerce Commission [now the Federal Rail-

road Administration], are within the [Boiler In-

spection Act]. But mere experimental devices which

do not increase the peril, but may prove helpful in

an emergency, are not. These have not been ex-

cluded from the usual rules relative to liability.

Southern Railway Co. v. Lunsford, 297 U.S. 398, 402

(1936) ; see also Marshall v. Burlington Northern, Inc.,

6a

720 F.2d 1149, 1152 (9th Cir. 1983) (Lunsford inter-

preted “parts and appurtenances” “as encompassing

‘[w]jhatever in fact is an integral or essential part of a

completed locomotive, and all parts or attachments defi-

nitely prescribed by lawful order of the [Secretary]

.’”) (emphasis deleted).

From Lunsford, we derive the rule that a carrier can-

not be held liable under the Boiler Inspection Act for

failure to install equipment on a locomotive unless the

omitted equipment (1) is required by applicable federal

regulations; or (2) constitutes an integral or essential

part of a completed locomotive. In this case, the bars,

screens, grates or similar protective devices, which Mosco

claims should have been installed over the windows of the

locomotive’s cab, are not required by applicable federal

regulations. Thus, under the rule we have stated, Mosco

would have a viable claim under the Boiler Inspection °

Act only if the omitted protective devices constitute an

integral or essential part of a completed locomotive. In

our opinion, they do not. Cf. Lunsford, 297 U.S. at 399-

402 (experimental safety braking device was not integral

or essential part of a completed locomotive).

Because the B & O’s failure to install protective de-

vices over the windows of the locomotive in which Mosco

was injured did not amount to a failure to maintain the

parts and appurtenances of the locomotive in safe and

proper condition under the Boiler Inspection Act, we be-

lieve that the district court correctly excluded evidence

concerning the absence of such protective devices as ir-

relevant. Mosco contends, however, that even if the

exclusion of this evidence was proper, the district court

nonetheless erred in directing a verdict for the B & O on

the Boiler Inspection Act claim. We disagree.

Mosco testified that on the day his injury occurred, the

windows of the locomotive’s cab were so dirty that he

had to open them to see out. He also testified that unless

iets

Ta

the windows were kept open, the interior of the cab be-

came unbearably hot and inadequately ventilated. Mosco

contends that this evidence was sufficient to withstand

the B & O’s motion for directed verdict, because the

dirtiness of the windows and the inadequate ventilation

violated federal regulations promulgated under the Boiler

Inspection Act. The pertinent regulations provide that

“Tejab windows of the lead locomotive shall provide an

undistorted view of the right-of-way for the crew from

their normal position in the cab” and “[t]he cab shall be

provided with proper ventilation. . . .” 49 C.F.R.

§ 229.119 (b) and (d).

We find Mosco’s arguments unpersuasive. There is no

suggestion that the cab windows would have provided

inadequate visibility if they had been clean. Mosco testi-

fied that on the day he was injured, he inspected the

locomotive before beginning work but did not clean the

windows. He further indicated that on some occasions,

he did clean the windows if they were extremely dirty.

Thus, it appeared from Mosco’s own testimony that any

impaired visibility resulting from dirt on the windows

was due to his own failure to clean the windows, and

not to any failure cf the B & O to maintain the parts

and appurtenances of the locomotive in safe and proper

condition as required by the Boiler Inspection Act.

Mosco’s argument concerning inadequate ventilation of

the locomotive’s cab is similarly without merit. Mosco’s

testimony indicated that ventilation in the cab was ade-

quate if the windows were left open. There was, how-

ever, as he points out, no way to prevent objects from

entering the open windows of the cab. We fail to see

how this state of affairs violates the requirement that

carriers provide their locomotive cabs with adequate ven-

tilation. In our view, Mosco’s argument on this point is

merely a restatement of his claim that the cab windows

should have been equipped with protective devices. For

the reasons discussed above, this claim does not consti-

8a

tute a viable cause of action under the Boiler Inspection

Act.

Because the district court properly excluded evidence

concerning the absence of bars, grates, screens or sim-

ilar protective devices from the windows of the loco-

motive’s cab, the B & O was entitled to a directed ver-

dict on Mosco’s Boiler Inspection Act claim. The evi-

dence of dirty windows and purportedly inadequate ven-

tilation, which was admitted, was not substantial enough

to support a verdict in favor of Mosco on the Boiler In-

spection Act claim. Because reasonable jurors could not

have returned a verdict for Mosco, the district court

properly directed a verdict for the B & O on this claim.

See, e.g., Gairola v. Commonwealth of Virginia Depart-

ment of General Services, 753 F.2d 1281, 1285 (4th Cir.

1985) (test for directed verdict is whether there can be

only one conclusion as to verdict that reasonable jurors

could reach; unless there is substantial evidence upon

which jury could properly return verdict for nonmoving

party, motion for directed verdict must be granted).

Although Mosco had no viable Boiler Inspection Act

claim based on the absence of protective devices from the

windows of the locomotive’s cab, it is possible that he

might have stated a meritorious FELA claim based on

the same facts. As the Supreme Court has indicated,

devices or equipment that do not fall within the coverage

of the Boiler Inspection Act are not therefore excluded

from the usual rules of liability. Lunsford, 297 U.S. at

402. If the jury had found that the B & O was negligent

in failing to install protective devices over the cab win-

dows, it could have returned a verdict for Mosco based

on breach of the B & O’s duty of reasonable care under

the FELA.

Mosco, however, never offered any evidence concerning

the absence of protective devices from the cab windows

to prove breach of the B & O’s duty of care under the

9a

FELA. In response to our questioning at oral argument,

Mosco’s counsel stated that he believed that the district

court’s ruling on the motion in limine had precluded him

from introducing this evidence for any reason, including

proving negligence of the B & O under the FELA. We

note, however, that the B & O’s motion in limine was

directed only to the exclusion of evidence concerning the

absence of protective devices for purposes of Mosco’s

Boiler Inspection Act claim. Mosco never asked the dis-

trict court whether its ruling on the motion in limine

extended to his FELA claim as well, and he never made

a proffer concerning the absence of protective devices to

prove a FELA violation. It was not until oral argument

before this court that Mosco first made the claim that

the district court had improperly excluded evidence con-

cerning the absence of protective devices from the cab

windows for purposes of his FELA claim.

Under these circumstances, we find no reversible error

in the district court’s grant of the motion in limine. It

appears to us that Mosco simply failed to ascertain the

scope of the district court’s ruling and thereafter failed

to offer evidence that might have enabled him to prevail

on a negligence theory under the FELA. Mosco’s failure

to bring the error he now asserts to the attention of the

trial court precludes us from granting him relief on this

ground, since any error that was committed below was

not plain error.

Mosco’s remaining assignments of error require little

discussion. Mosco’s primary claim under the FELA was

that the B & O had breached its duty to provide him a

safe place to work by failing to take precautions against

the activities of the rock-throwing juveniles who, accord-

ing to Mosco, congregated at the Virginia Avenue Tun-

nel. The district court correctly instructed the jury that

the B & O had a nondelegable duty under the FELA to

provide Mosco a safe place to work, even when Mosco’s

duties required him to go onto property owned by a third

10a

person, such as the property surrounding the Virginia

Avenue Tunnel. See Cazad v. Chesapeake & Ohio Rail-

way Co., 622 F.2d 72, 75 (4th Cir. 1980). The district

court further instructed the jury that a carrier may be

held liable under the FELA if a dangerous condition on

a third person’s property causes injury to an employee

of the carrier, so long as the dangerous condition was

foreseeable to the carrier.

In our opinion, these instructions adequately informed

the jury of the duty imposed on the B & O by the FELA.

Mosco, however, contends that the district court erred in

failing to instruct the jury that the B & O had a duty

to inspect the premises surrounding the Virginia Avenue

Tunnel for the purpose of discovering the juveniles who,

according to Mosco, customarily stoned passing trains.

In cases in which property defects on premises owned by

a third person have caused injury to a railroad employee,

we have held that the railroad has a duty to inspect the

premises and protect its employees from possible danger.

See, e.g., Cazad, 622 F.2d at 75. However, Mosco has

cited no authority, and we have found none, holding that

the FELA imposes a duty on railroad employers to in-

spect premises owned by a third person for the purpose

of detecting the intentional criminal activity of tres-

passers that may occur there. We are unwilling to hold

that the B & O had such a duty in this case, and,

accordingly, we conclude that the district court did not

err in declining to give the jury an instruction to that

effect.

Mosco’s final argument is that the district court com-

sions prejudicial error in questioning him on two occa-

sions during the trial. On the first occasion, the district

court questioned Mosco about a statement he had given

to a claims agent for the B & O after his injury. This

interrogation, which elicited nothing more than the same

answers that Mosco had previously given on cross-

examination, was not prejudicial to Mosco.

lla

On the second occasion, the district court questioned

Mosco about the renewal of his driver’s license as it

related to his claim of impaired vision resulting from the

head injury he had suffered. Mosco previously had testi-

fied that his driver’s license had not become due for re-

newal for a period of two and one-half years, although,

as the district court noted, applicable state law requires

renewal of driver’s licenses every two years. Because

Mosco’s testimony on this point was confusing and likely

erroneous, the district court acted properly in question-

ing him to obtain clarification. See, e.g., United States

v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983) (district

court has duty to see that facts are properly developed

at trial).

For the reasons stated in this opinion, the judgment

of the district court is affirmed.

AFFIRMED.

12a

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

Docket No.: HAR-84-4228

LEE A. Mosco, JR.,

Plaintiff,

—

BALTIMORE & OHIO RAILROAD,

Defendant.

Baltimore, Maryland

February 25, 1986

VOLUME II

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HON. JOHN R. HARGROVE, J.U.S.D.C.

TRANSCRIPT ORDERED BY:

LAWRENCE A. KATZ, ESQ.

APPEARANCES:

For the Plaintiff: LAWRENCE A. KATZ, Esq.

For the Defendant: RANSOM Davis, Esq.

Processed By: GAIL PRESTON

13a

[186] -MR. KATZ: Your Honor, we obviously have

not had an opportunity to specifically respond to any of

this motion either, and we too, —

THE COURT: Well, it is very rare that you get

that opportunity at the end of your case. You usually

go right on to the next part.

MR. KATZ: Your Honor, I will attempt to lay out

our general memorandum of law on this item. We note

the series of cases on page 7 of our memorandum that

point out as in most law, that in granting a nonsuit,

Your Honor has to give us every single benefit of the

doubt. In the FELA cases, these cases are more strin-

gent.

THE COURT: Well, they are more stringent in some

areas, but negligence is negligence.

MR. KATZ: That is true.

THE COURT: And you still have to meet the burden

of negligence. Now, they have some stringent aspects of

it certainly. But the threshold of it is you have to show

that the proximate cause of the accident was an act of

the B & O Railroad, whether it was because the place in

which he was working had something to do with it, or

whatever. Or that they had [137] something to do, —I

think the issue here is whether or not they had sufficient

notice that somebody might, there is a lot of ifs, —that

somebody might be hit with a rock, providing the engi-

neer goes through there and opens his window. And I

think these are all the ifs you have in this particular

case.

I am not suggesting anything one way or another, but

this is what we are dealing with here. I don’t think

there is any evidence of anything on the locomotive itself

which causes injury. At least, —well, we don’t know.

We don’t know, and if you don’t know, that’s no evi-

dence. We don’t know, —is it just as easy to—if you

went to surmise or make an educated guess as Mr.

Mosco, —he could have bumped his head, couldn’t he?

l4a

That is just as probable isn’t it, as something being

thrown?

MR. KATZ: No.

THE COURT: Why not? From the testimony in this

case?

MR. KATZ: Because from the testimony in this case,

he saw a blur of the object coming in from the outside

into the engine and then immediately felt the impact.

[188] MR. KATZ: Your Honor, the first reading of

the Boiler Inspection Act, —

THE COURT: Well, there is just no evidence in that

is it? I haven’t seen any.

MR. KATZ: It was adduced during Mr. Mosco’s tes-

timony that in fact, the window itself had to remain

open for him to properly perform his job, because of

the distorting effect of the dirt on the window.

THE COURT: Well, was that the B & O Railroad’s

fault or his fault, because he didn’t clean the window?

[139] MR. KATZ: Well, there is an engineering de-

partment and there is an equipment department.

THE COURT: Well, my recollection of the evidence

was that he said he didn’t have time to do it. He didn’t

fault anybody. He said he didn’t have time. I guess you

can infer from that that it was one of his responsibilities.

He said he cleaned off the front windows and not the

side.

I am not suggesting a whole lot in that but, the ques-

tion is, whether or not that’s—you see, the safety act

implied more than just dirty windows. It goes to a, —

the dirty windows did not cause this accident.

In most of the safety act provisions, something on the

locomotive, parts or appurentant caused the accident or

played a very prominent part in it. But that is not what

played a prominent part in this. The stone played the

most prominent part, or whatever it was. Everybody is

calling it a stone, you have me calling—nobody knows

what it was. Whatever it was played the pertinent part.

l5a

So there is a real serious question and maybe the jury,

—I don’t know, maybe the jury, —But on the safety act,

you have an additional burden. You have to show that a

part or appurtenant of this [140] locomotive was the

cause of—had something to do with this.

MR. KATZ: Your Honor, it is my understanding of

the law is that our burden is to show that that part and

appurtenance played a part even in the slightest, in the

happening, —

THE COURT: Yes, but what part are you talking

about?

MR. KATZ: Well, certainly under the facts that are

on the record at this time. If Mr. Mosco, under the

operating conditions in which he was operating, had to

leave the window open in order to properly operate, —

that you could properly find that the need to remove

whatever minimal protection was provided by the rail-

road was created by an unsafe condition.

THE COURT: Oh, that is stretching it an awful

lot. That is stretching it so far down the line Mr. Katz,

that it almost breaks. I don’t think the act, —I don’t

think the Courts will bend the act to that great extent.

You are bending it way out of proportion.

I think if you look at that act, the sole purpose of

that act was that if something on the train, in the loco-

motive breaks, falls apart, which causes [141] injury,

—for example, you get a lot of cases where the brakes

jam and the people in the vehicle rush forward and

strike their heads on, you know.

We have had some strange situations, but none of

them that we have to take eight or nine but ifs to get

there. And I think you need a lot of but ifs, to get there,

which makes it so unreasonable that I think it stretches

the act too far.

No, I think you are going to have to show more than

that. I think under the act itself, that safety act, you

are going to have to show that it was something on the

16a

part or appurtenant, which is really what the act says,

that caused him to be injured.

And the window didn’t cause him to be injured. The

fact that the window was open, perhaps was the cause

of something coming through, but that didn’t cause the

injury. Whatever hit him caused the injury. And that

had nothing to do with any part or appurtenants on

the train. It is the act of a third party or third thing

or an unknown depends on how the jury perceives it.

No, I don’t have any doubt in my mind. There is no

evidence at all of this act. And even if you talk about

all the other things which I think you attempted to talk

about, you still wouldn’t meet this [142] act, woul meet

the burden under this act. Because it gives you sort of

an absolute liability. And when there is absolute lia-

bility, you have got to show clearly that it was a part

or appurtenant of the thing which caused the injury.

And that is what it does.

No, I will have to grant the motion on that second

phase on the safety act.

MR. KATZ: If it please Your Honor, I except—

THE COURT: Well, you always have an exception

anyway. I grant the motion.

All right, now on the other.

* * * *

[1383] THE COURT: All right, any exception. You

can come right up.

(Bench Conference)

MR. KATZ: Your Honor, first I take a general ex-

ception to the Court’s charge on points 12 through 16.

They are the issues already raised under the Boiler In-

spection Act.

[1384] THE COURT: All right, well, I don’t know if

that is an exception. That just didn’t get in the case.

* ” * a

17a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action File No. HAR-84-4228

LEE A. Mosco, JR.,

Plaintiff

vs.

BALTIMORE & OHIO RAILROAD,

Defendant

JUDGMENT

This action came on for trial before the Court and a

jury, Honorable John Hargrove, United States District

Judge, presiding, and the issues having been duly tried

and the jury having duly rendered its verdict.

It is Ordered and Adjudged that judgment is hereby

entered in favor of Defendant against Plaintiff, dated

this 27th day of February, 1986.

JOSEPH A. HAAS

Clerk

/s/ [Illegible]

by BELINDA ARRINGTON

Deputy Clerk

18a

UNITED STATES CODE

Title 45; Section 28

§ 23. Use of unsafe locomotives and appurtenances un-

lawful; inspection and tests

It shall be unlawful for any carrier to use or permit

to be used on its line any locomotive unless said locomo-

tive, its boiler, tender, and all parts and appurtenances

thereof are in proper condition and safe to operate in

the service to which the same are put, that the same may

be employed in the active service of such carrier without

unnecessary peril to life or limb, and unless said locomo-

tive, its boiler, tender, and all parts and appurtenances

thereof have been inspected from time to time in accord-

ance with the provisions of sections 28 to 30 and 32 of

this title and are able to withstand such test or tests as

may be prescribed in the rules and regulations herein-

after provided for.

Feb. 17, 1911, c. 103, § 2, 36 Stat. 918; Mar. 4, 1915,

ce. 169, § 1, 38 Stat. 1192; June 7, 1924, c. 355, § 2, 43

Stat. 659.

19a

CODE OF FEDERAL REGULATIONS

Chapter II—Federal Railroad Administration

Title 49—Transportation

§ 229.7 Prohibited acts.

(a) The Locomotive Inspection Act (45 U.S.C. 22-34)

makes it unlawful for any carrier to use or permit to be

used on its line any locomotive unless the entire locomo-

tive and its appurtenances—

(1) Are in proper condition and safe to operate in

the service to which they are put, without unnecessary

peril to life or limb; and

(2) Have been inspected and tested as required by

this part.

(b) A carrier is subject to a penalty, as provided in

Appendix B, if it fails to comply with any provision of

this part or of the Locomotive Inspection Act.

§ 229.11 Cabs, Floors, & Passageways

“(b) Cabs windows of the lead locomotive shall pro-

vide an undistorted view of the right-of-way for the

crew from their normal position in the cab. (See also,

Safety Glazing Standards, 49 C.F.R. Part 228, 44 FR ©

77348, December 31, 1979). (d) The cab shall be pro-

vided with proper ventilation and with a heating ar-

rangement that maintains a temperature of at least 50

degrees Fahrenheit 6 inches above the center of each

seat in the cab. * * *” (emphasis added).

§ 229.45 General Condition

“All systems and components on a locomotive should be

free of conditions that endanger the safety of the crew,

locomotive or train. * * *