Opposition Brief — Mosco v. Baltimore & Ohio Railroad

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QZ = | 2 ~ | Supreme Court, U.S,

0 FILED

AUG 22 W987

gE ANIOL, JR,

CLERK

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

LEE A. MOSCO, JR..,

Petitioner,

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

H. RUSSELL SMOUSE

RANSOM J. DAVIS

NANCY S. ALLEN

MELNICOVE, KAUFMAN,

WEINER, SMOUSE &

GARBIS, P.A.

600 Charles Center South

36 South Charles Street

Baltimore, Maryland 21201-3060

(301) 332-8581

Counsel for Respondent

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED,

WILL BE ISSUED.

A NEW FICHE

QUESTIONS PRESENTED FOR REVIEW

I. Whether the grant of a directed

a verdict in a Federal Employers'

WH viaviiity Act and Boiler Inspection Act

case violates the Seventh Amendment to

the United States Constitution?

II. Whether the District Court and

Fourth Circuit Court of Appeals,

respectively, correctly entered and

affirmed the directed verdict in favor

'of The Baltimore and Ohio Railroad

Company where the undisputed facts

established as a matter of law that the

B&O did not violate the Federal Boiler

Inspection Act?

STATEMENT OF PARTIES

TO THESE PROCEEDINGS

The Petitioner, Lee A. Mosco, Jr.,

an employee of The Baltimore and Ohio

Railroad Company, at all relevant

times, was the plaintiff and appellant

below.

The Baltimore and Ohio Railroad

Company ("B&O") was the defendant and

appellee in the proceedings below. The

B&O was dissolved effective April 30,

1987, on which date Respondent The

Chesapeake and Ohio Railway Company

("C&O") assumed all B&O assets,

obligations, liabilities, rights and

privileges.*~” For purposes of

* The C&O is a wholly owned

subsidiary of CSX Corporation ("“CSX").

Subsidiaries and affiliates of CSX and

the C&O, other than those wholly owned

by them, are as follows:

(continued)

clarity, this Opposition to Petition

For a Writ of Certiorari continues to

(continued)

ke CSX Resources, Inc., a wholly

owned subsidiary of CSX, has a partial

interest in Mid-Allegheny Corporation.

: The C&O has a partial interest

in the following:

a. Allegheny and Western

Railway Company;

b. The Baltimore and

Philadelphia Railroad Company;

e. Clearfield and Mahoning

Railway Company;

d. Dayton and Michigan

Railroad Company;

e. Dayton and Union Railroad

Company;

- The Home Avenue Railroad

Company; ,

g. The Cleveland Terminal &

Valley Railroad Company.

. Western Maryland Railway

Company, a wholly owned subsidiary of

the C&O, has a partial interest in the

Baltimore and Cumberland Valley

Railroad Extension Company.

4. CSX Transportation, Inc., a

wholly owned subsidiary of CSX, has a

partial interest in the following:

(continued)

- iii -

en ae Ee

refer to the B&O in connection with

matters preceeding its dissolution.

(continued)

a. Augusta and Summerville

Railroad Company;

b. Beaver Street Tower

Company;

e. Central Transfer Railway

and Storage Company;

d. Chatham Terminal Company;

e. North Charleston Terminal

Company; :

Rs Paducah & Illinois

Railroad Company;

g. Winston-Salem Southbound

Railway Company;

h. Woodstock & Blockton

Railway Company.

$. Various subsidiaries of CSX

have a partial interest in Richmond

Washington Company, which in turn has a

partial interest in Richmond,

Fredericksburg and Potomac Railroad

Company.

- iV -

Bible. rm

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW.. 1

STATEMENT OF PARTIES TO THESE

PROCEEDINGS... ccccccccces ii

LOWER COURT OPINIONS............ vi

STATUTORY PROVISIONS............ vii

STATEMENT OF THE CASE........... 1

ARGUMENT . cccccccccsccescessecces 11

Be a ere See eee ee ll

4 The Grant Of A Directed

Verdict In Cases Involving

The FELA And Boiler

Inspection Act Does Not

Violate The Seventh Amendment

To The United States

oe ea 13

III. The Grant Of A Directed

Verdict In Favor Of The

B&O Was Correctly Entered

And Affirmed Where

Petitioner Mosco Failed

To Produce Sufficient

Probative Evidence That

The B&O Violated FRA

Regulations And That The

Alleged Violations

Caused The Accident....... 17

Ecce reweuscccceceteeces

OWE SC ccccccctehsiccecceeceecs

Published Opinion Of Fourth

Circuit Court Of Appeals....

Transcript Of Bench Opinion

Of United States District

Court For The District Of

og eee

Federal Railroad Admin-

istrations's Safety

Glazing Standards 49

ee vane ME EC oe so ce we owed

- vi -

27a

53a

4 a ter! WE GH LAAs

TABLE OF AUTHORITIES

CASES PAGE

Aerkfetz v. Humphreys, 145 U.S.

418, i2 S.Ge. S3s (3692) ..-- 26

Atchison, T. & S.F. Ry. Co. Vv.

Toops, 281 U.S. 351, 50 S.Ct.

BER CEBSO) ccccccccedecccsecs 16,19,

Atchison, T. & S.F. Ry. Co. v.

United States, 617 F.2d 485

(7th Cir. 1980) ..ccccccccces 16,22

Baltimore & O. R. Co. v. Groeger

266 U.S. 521, 45 S.Ct. 169

C1928) wccccccccscacesecceccs 15-16,

Brady v. Southern Ry. Co., 320

G.8. 276, Be BsGe-e Bee

CEOGGSS. csc sce Seeerereascecesece 16,26

Chicago Great Western R. Co.

v. Rambo, 298 U.S. 99,

S56 S.Ce. 69S CASSE) ccecccece 16,19

Consumer Product Safety Com'n

v. GTE Sylvania, Inc., 447

U.S. 102, 100 S.Ct. 2051

(1980) wccccccccccccccccccces 22 n.l

Davis v. Wolfe, 263 U.S. 239

44 S.Ct. 64 (1923) .....-.- 19,27-

Ehalt v. McCarthy, 138 P.2d

639 (Utah 1943) ......----ees 24-25

- vii -

PAGE

Ellis v. Union Pac. R. Co.,

329 U.S. 649, 67 S.Ct.

S396 (19647) .csce chub adebesecos 18

Escondido Mut. Water v. La

Jolla, 466 U.S. 765,

164 &.Ce. 2165 Ci9BE) ccccecce 22 n.l

Fryer v. St. Louis - San

Francisco Ry. Co., 63

Bsmoas GF Es BEES) cecccces 25

Galloway v. United States,

319 U.S. 372, 63 S.Ct.

og MG er 14

Green V. River Terminal Ry.

Co., 763 F.2d 805 (1985) .... 28

Inman v. Baltimore & Ohio

Railroad Company, 361 U.S.

LZe, GO B.Ge. 242 £1959) .noce 4,16

Jefferson Cty. Pharmaceutical

Ass‘n v. Abbot Labs., 460

U.S. 150, 103 S.Ct. 1011

CR cénebaee des esédeowrweos 22 n.l

Johnson v. Chicago Great

Western Ry. Co., 64 N.W.2d

Ste Geese BUOED cocccescocss 28

Lang v. New York Cent. R. Co.,

255 U.S. 455, 41 S.Ct. 381

CEEBED codes ccesedssessececes 28

Lavender v. Kurn, 327 U.S.

645, 66 S.Ct. 740 (1946) .... 18

- viii -

nee

PAGE

Luce v. New York, C & St. L.

rr ee BAF Ave

209 App. Div. 728 (1924) .... 25-26

Mosco v. Baltimore & Ohio

R.R., 817 F.2d. 1088

SGM CEOs BOGT) secscrcoccece xi,10,

Myers v. Reading Co., 331 U.S.

G77, GF Wetec Saae C3967) .-- &8

National Insulation Transp.

Committee v. I.C.C., 683

F.2d. 533 (D.C. Cir. 1982) .. 22n.1

New York Cent. R. Co. v.

Ambrose, 280 U.S. 486,

§ ©. Se. ee: } 16,19,

Pryor v. Chicago, R.I. &

P. Ry. Co., 39 P.2d 563

Tt. Dee he ekeheseseeeeees 25,28

Southern Railway Co. v.

Lunsford, 297 U.S. 398,

Se Meus BOG EESSOD sccecccecs 4

St. Louis & S.F.R. Co. v.

Conarty, 238 U.S. 243, 35

- Fe, . Be. i) > ree 28

Toledo, St. L. & W. R. Co.

v. Allen, 276 U.S. 165,

SB BAe eee C1928) cccocscces 16

- ix -

STATUTES AND REGULATIONS

PAGE

Federal Boiler Inspection Act,

We Weems MEE be eee eeéscscce xii,xiv

Federal Employers’ Liability

MGs SS BeBicG. SSA occ ccccs xii-xiv

Federal Railroad Administration

Regulations, 49 C.F.R.

Sw ee eee xiv,5

Federal Railroad Administration

Regulations §229.119(b)

RY CR ASO irae ls oe | xii,xv,

6,20

SUPREME COURT RULES

Supreme Court Rule 17.1....... 12,14

Supreme Court Rule SEs BGee. «cae. &

OTHER SOURCES

Black's Law Dictionary,

425 (rev. Sth ed. 1979) .... 21

Webster's New Twentieth

Century Dictionary

Unabridged, 534 and 2028

(2nd ed. 1964) ....cccccccce 21-22,

; 23

WER SL en

We Ss epi ed

LOWER COURT OPINIONS

The Bench Opinion of Judge John R.

Hargrove of the United States District

Court for the District of Maryland has

been transcribed and appears in the

Appendix (App. 27a). The Opinion of

Circuit Judges Phillips and Ervin and

Senior District Judge Merhige for the

Eastern District of Virginia, sitting

by designation is published, Mosco v.

Baltimore & Ohio R. R., 817 F.2d 1088

(4th Cir. 1987) and appears in the

Appendix (App. la)

« 2

STATUTORY PROVISIONS

This case involves the partial

grant and affirmance of a directed

verdict in favor of Respondent, The

Baltimore and Ohio Railroad Company

("B&O") whereby the lower courts held

as a matter of law that the B&O was not

liable to Petitioner Mosco under the

Federal Employers’ Liability Act

("FELA"), 45 U.S.C. §51 by reason of an

alleged violation of the Federal Boiler

Inspection Act, 45 U.S.C. §23 and more

specifically regulations promulgated

thereunder by the Federal Railroad

Administration ("FRA") pertaining to

ventilation and undistorted window

panes. 49 C.F.R. §229.119(b) and (qd).

LIABILITY ACT

Every common carrier by

railroad while engaging in

commerce between any of the

several States or Territories, or

- xii -

‘

between any of the States and

Territories, or between the

District of Columbia and 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

negligence of any of the officers,

agents, or employees of such

Carrier or by reason of any defect

Or insufficiency, 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 interstate or foreign commerce;

or shall, in any way directly or

Closely and substantially, affect

such commerce 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

- xiii -

entitled to the benefits of this

chapter.

45 U.s.C. §51.

§23 THE BOILER INSPECTION ACT

It shall be unlawful for any

Carrier to use or permit to be used

on its line any locomotive unless

said locomotive, 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

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 to 34 of this title and are able

to withstand such test or tests as

may be prescribed in the rules and

regulations hereinafter provided

for.

45 U.S.C. §23.

REGULATIONS OF THE FEDERAL

RAILROAD ADMINISTRATION

The provisions of the FRA's Safety

Glazing Standards, 49 C.F.R. Part 223,

are set forth in pertinent part in the

Appendix (App. 53a).

- xiv -

FRA Regulation Re:

Undistorted Window Panes

Cab 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.

(See also, Safety Glazing

Standards, 49 CFR Part 223, 44 FR

77348, Dec. 31, 1979.)

49 C.F.R. §229.119(b).

FRA Regulation Re: Ventilation

The cab shall be provided with

proper ventilation and with a

heating arrangement that maintains

a temperature of at least 50

degrees Fahrenheit 6 inches above

the center of each seat in the cab.

49 C.F.R. §229.119(d).

No. 86-2037

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1987

LEE A. MOSCO, JR.,

Petitioner,

Vv.

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

FOURTH CIRCUIT

STATEMENT OF THE CASE

Petitioner, Lee A. Mosco, Jr., a

locomotive engineer of Respondent, The

Baltimore and Ohio Railroad Company,

filed suit in the United States

—— a

EE, eT Pn. Sl

Teel cs 4 Shae An

Pe Be a hk ee ha i eh BS oh

District Court for the District of

Maryland against his railroad employer

for an injury he allegedly sustained on

August 3, 1983. While Mosco was

Operating a locomotive with the side

window opened in the vicinity of the

Virginia Avenue Tunnel in Washington,

D. C. he was struck on the head by an

unidentified object which Mosco

speculated to have been a stone thrown

by a juvenile. The only evidence as to

how the accident occurred was Mosco's

own, equivocal testimony that he

thought he saw a blur originating from

the embankment near the tunnel and

overhead bridge. No one, including

Mosco, had seen a juvenile in the

vicinity at the time of the occurrence,

however. Mosco sustained a mild

concussion from which he fully

recovered but he did not return to his

usual duties as an engineer. According

to Mosco, he was permanently disabled

by alleged double vision which his own

physician could not detect.

Mosco sought to hold the B&O liable

for the alleged consequences of his

injury based upon three theories.

Mosco's first theory, which he most

strenuously urged before the lower

courts, was premised upon an erroneous

interpretation of the general

provisions of Section 23 of the Boiler

Inspection Act as imposing a standard

of strict liability. Mosco argued that

the occurrence could have been

prevented if the B&O had installed

bars, grates, screens or similar

devices over the locomotive'’s window,

and, therefore, the B&O was required to

install the same to comply with the

Boiler Inspection Act. The Boiler

Inspection Act does not make a carrier

an insurer, however. Cf. Inman v.

Baltimore & Ohio Railroad Co., 361 U.S.

138, 140, 80 S.Ct. 242,243 (1959). Its

provisions require railroads to keep

their locomotives and their parts and

appurtenances in proper condition and

safe to operate for their intended

purpose without unnecessary peril to

life and limb -- not to install every

conceivable piece of equipment which

could prevent an injury no matter how

unconnected with the operation of the

locomotive. Southern Railway Co. v.

tunsford, 297 U.S. 398, 56 S.Ct. 504

(1936).

Moreover, Mosco did not dispute

that tie B&O had complied with the

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regulations promulgated by the Federal

Railroad Adminstration, setting the

standard of compliance with Section 23

as to window protection. See 49 C.F.R.

Part 223, requiring windows to be

glazed with a bullet-proof material.

And Mosco was not prepared to offer any

evidence that the window as it existed

at the time of the occurrence was

unsafe to operate under the general

standard of Section 23. Instead, Mosco

intended to have the jury, in effect,

promulgate regulations requiring bars,

screens, grates or similar devices

based solely upon proposed lay, opinion

testimony of Mosco's fellow trainmen

that if such devices had been installed

the occurrence would not have happened.

Mosco's second theory of liability

for which he seeks review by the Court

was a tangential argument given little

focus by Mosco during the course of

trial and on appeal. According to this

theory the accident was caused because

the window on the right side of the

locomotive was allegedly dirty and the

interior cab of the locomotive was

allegedly hot, purportedly in violation

of the FRA's regulations that

locomotives be equipped with

undistorted window panes and provide

adequate ventilation. See 49 C.F.R.

§229.119(b) and (dad). Mosco, however,

failed to produce sufficient evidence

that the B&O violated the regulations.

If the windows were dirty it was solely

Mosco‘s fault -- not the B&O's. Mosco

unequivocally testified that he alone

was responsible for cleaning all of the

locomotive‘*s windows but he had

neglected to do so. And Mosco's

allegations about the ventilation

system was based merely upon his

testimony that it was a hot summer day

and, therefore, the temperature inside

the locomotive's cab compartment was

high. No evidence at all was produced

regarding the ventilation system,

itself.

Likewise, Mosco was unable to show

a sufficient causal connection between

the alleged dirty window and the summer

heat and the criminal act of the

alleged stone thrower. Instead Mosco

urged an attenuated theory premised

upon his testimony that if the side

window had not been dirty and if it had

not been a typical August day and,

therefore, hot inside the locomotive,

he would not have opened the window.

The argument continued, that since the

window was opened, the B&O was required

to install bars grates or similar

devices because if the B&O had done so,

the occurrence would not have

happened. This scenario was too

attenuated and remote to establish a

causal connection between the alleged

violations of the FRA regulations and

the criminal act of the alleged stone-

thrower.

Mosco's third theory was premised

upon the general provisions of Section

51 of the FELA, requiring carriers to

exercise ordinary care to provide a

reasonably safe workplace.

The case proceeded to trial from

February 24 through 26, 1986 before

District Judge Hargrove and a jury. At

the close of Mosco's case on February

25, 1986, the trial court granted a

directed verdict, in favor of the B&O

in regard to both of Mosco's theories

under the Boiler Inspection Act. Trial

continued on Mosco's claim against the

Railroad under the FELA, and the jury

eventually returned a verdict in favor

of Respondent B&O under this theory of

liability as well.

Mosco thereafter filed a timely

Notice of Appeal to the United States

Court of Appeals for the Fourth

Circuit. On April 21, 1987, in an

Opinion by Judge Ervin, joined in by

Judge Phillips and Judge Merhige,

sitting by designation (hereinafter

"the Panel”), the Panel affirmed the

decision of the district court granting

a directed verdict in favor of the B&O

under the Boiler Inspection Act and

upheld the jury verdict in favor of the

B&O under Section 51 of the FELA.

The Panel rejected Mosco's first

theory of liability, that the B&O was

required to install devices on the

locomotive's window, sdlely on the

basis of statutory construction. The

Panel held that “"...a carrier cannot be

held liable under the Boiler Inspection

Act for failure to install equipment on

its locomotive unless the omitted

equipment (1) is required by applicable

federal regulations; or (2) constitutes

an integral or essential part of a

complete locomotive” and that bars,

grates, screens and similar devices do

not come within the rule. 817 F.2d

1088, 1091. (App. 12a.) Mosco does

not dispute the accuracy of the Panel's

statutory interpretation.

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In regard to Mosco's second theory

the Panel held that Mosco failed to

produce sufficient evidence to

establish a violation of the FRA

regulations. The district court

directed the verdict on the same basis

and further held that Mosco failed to

show the requisite causal nexus between

the alleged violation and the

occurrence.

Thereafter on July 20, 1987, Mosco

filed a timely Petition for Writ of

Certiorari to the United States Court

of Appeals for the Fourth Circuit.

ARGUMENT

I. Summary

Petitioner Mosco seeks review by

this Court, contending that a grant of

a directed verdict in general and in

FELA and Boiler Inspection Act cases in

particular violates a plaintiff's

constitutional right to a jury trial.

Mosco further alleges that the lower

courts erred in holding that his

testimony regarding the alleged heat

and dirt was insufficient, as a matter

of law, to show a violation of the FRA

regulations and to establish a causal

connection with the alleged criminal

act of an unidentified party. In this

Same vein, Mosco also contends that the

Court erred in determining factual

issues, albeit in his favor, instead of

presenting these issues to the jury.

The B&O submits that Mosco's

Petition for Writ of Certiorari is not

properly before the Court. None of the

“special and important reasons” for

review required by Supreme Court Rule

17.1 here exist.

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Significantly, Mosco failed to

specifically set forth the reasons

relied on for the allowance of the writ

as required by Supreme Court Rule

21.1(3). Instead, Petitioner

generally espouses the importance of

constitutional rights and the policy

underpinnings of the FELA, without

regard to the issues actually decided

in this case. The B&O respectfully

submits that Petitioner's general

statements do not suffice to warrant a

grant of review by this Court.

II. The Grant Of A Directed Verdict

In Cases Involving The FELA And

Boiler Inspection Act Does Not

Violate The Seventh Amendment To

The United States Constitution.

Mosco's argument that the grant of

a directed verdict violates a

plaintiff's constitutional right to a

jury trial does not present a proper

question for review under Supreme Court

Rule 17.1. As expressed by this Court

in Galloway v. United States, 319 U.S.

372, 389, 63 S.Ct. 1077, 1086 (1943),

Mosco's objection is nearly a century

too late.

Equally unavailing is Mosco's

contention that when Congress enacted

the FELA, it somehow changed the

Seventh Amendment. While it is true

that Congress altered the standard of

liability by allowing an FELA plaintiff

to recover when the carrier's

negligence was a cause in part of the

occurrence; Congress in no manner

altered the plaintiff's burden of proof

Or circumscribed the trial judge's

power and duty to grant a directed

verdict. As in all cases, the trial

judge must determine whether to grant a

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PED EE PRIME ELI TP I tales ee ewe

directed verdict in light of the

standard of liability; but the judge

must nonetheless perform his duty to

direct the verdict when warranted, of

course. Therefore, when this Court was

presented with the identical issue in

Baltimore & O. R. Co. v. Groeger, 266

vie. een, SO 8.Ct. 169 (1925), it held

that the function of the court and jury

is no different in FELA and Boiler

Inspection Act cases than any other

Civil case.

The credibility of witnesses,

the weight and probative value of

evidence are to be determined by

the jury and not by the judge.

However, many decisions of this

court establish that, in every

case, it is the duty of the judge

to direct a verdict in favor of

one of the parties when the

testimony and all the inferences

which the jury could justifiably

draw therefrom would be

insufficient to support a

different finding.

“| ae

eT TT

266 U.S. at 524, 45 S.Ct. at 170-171

(emphasis supplied) (citations

omitted). And this Court has not

hesitated to hold that a lower court

erred when it failed to direct a

verdict in a number of actions brought

under the FELA, Chicago Great Western

R. Co. v. Rambo, 298 U.S. 99, 56 §.Ct.

693 (1936); New York Cent. R. Co. v.

Ambrose, 280 U.S. 486, 50 S.Ct. 198

(1930); Atchison, T. & S.F. Ry. Co. v.

Toops, 281 U.S. 351, 50 S.Ct. 281

(1930); and Toledo, St. L. & W.R. Co.

v. Allen, 276 U.S. 165, 48 S.Ct. 215

(1928) or affirm the grant of a

directed verdict, Inman, supra; Brady

v. Southern Ry. Co., 320 U.S. 476, 64

S.Ct. 232 (1943); and Aerkfetz v.

Humphreys, 145 U.S. 418, 12 S.Ct. 835

(1892).

- 16 =-

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III. The Grant Of A Directed Verdict

In Favor Of The B&O Was

Correctly Entered And Affirmed

Where Petitioner Mosco Failed To

Produce Sufficient Probative

Evidence That The B&O Violated

FRA. Regulations And That The

Alleged Violations Caused the

Occurrence.

Petitioner Mosco's allegation of

liability regarding the FRA regulations

was premised upon Section 5l of the

FELA which confers a cause of action

upon a railroad employee whose injury

was caused in part by the negligence of

the employer or a violation of the

Boiler Inspection Act including

regulations promulgated by the FRA

pursuant thereto. It is well-settled,

and Mosco does not dispute, that to

impose liability under the Boiler

Inspection Act he was required to show

both that the B&O violated the FRA

regulations and that the alleged

a. sare

violations were a cause in part of the

occurrence.

Petitioner Mosco, however, contends

that under the holdings of Myers v.

Reading Co., 331 U.S. 477, 67 S.Ct.

1334 (1947); Ellis v. Union Pac. R.

Co., 329 U.S. 649, 67 S.Ct. 598 (1947);

and Lavender v. Kurn, 327 U.S. 645, 66

§.Ct. 740 (1946) that a jury question

was presented as long as he produced

any evidence.

The B&O submits that this Court has

never held that the mere production of

evidence, without more, is sufficient

to raise a jury question. A proper

reading of the above cited cases is

that in regard to causation the

evidence must be of sufficient

probative value, capable of raising a

reasonable inference of causation. See

a 36 «

Ok nbs POT X etek.

i. ele

also Toops supra; and Ambrose, supra.

When the evidence produced is only

suggestive of a remote causal

connection, this Court has consistently

held that the verdict must be

directed. Davis v. Wolfe, 263 U.S.

239, 243, 44 S.Ct. 64, 66 (1923); and

Brady, supra, 320 U.S. at 483-484, 64

S.Ct. at 236-237.

Moreover, the above rule set forth

in the cases cited by Mosco is derived

from the “cause in part" language of

the FELA and does not apply to proof of

a violation of the Boiler Inspection

Act. In the latter case, this Court

has firmly held that plaintiff must

produce “substantial” probative

evidence that the Act has been

violated. Rambo, supra, 298 U.S. at

105, 56 S.Ct. at 695.

= 29 =

The FRA regulations upon which

Mosco relied to show negligence per se

provide:

Cabs, floors, and passageways.

(b) Cab 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,

(See also, Safety Glazing

Standards, 49 CFR Part 223, 44 FR

77348, Dec. 31, 1979.)

(d) The cab shall be provided

with proper ventilation and with a

heating arrangement that maintains

a temperature of at least 50

degrees Fahrenheit 6 inches above

the center of each seat in the cab.

49 C.F.R. §229.119 (b) and (qd).

Under the standard set forth in

Rambo, supra, Mosco was required to

produce substantial evidence that the

B&O violated the FRA regulations.

Mosco not only failed to sustain his

» 26 =

went,» wade | a:

burden, in one instance, he actually

a any inference that the B&O was

to blame.

In regard to paragraph (b), Mosco

merely testified that the side window

was dirty and therefore, he did not

have adequate visilibity of the

tracks. Mosco did not testify that the

window provided a distorted view as the

term is used in pargraph (b). See

Black's Law Dictionary, 425 (rev. 5th

ed. 1979) ("Distort. To twist out of

natural or regular shape; to twist

aside physically; to force or put out

of true posture; to wrest, or

deform."); and Webster's New Twentieth

Century Dictionary Unabridged, 534 (2nd

ed. 1964) (“Distort, ... 1. to twist

out of natural or regular shape; to

- 21-

change the usual shape or appearance

of; as, to distort the features.")+”

Likewise, in regard to paragraph

(d) Mosco merely testified that it was

a hot summer day and, therefore, the

temperature was high inside the

locomotive’s cab compartment. Mosco

did not produce any evidence at all

regarding the ventilation system,

itself, -- the operative term in

See the following cases

holding that the courts should

generally assume that Congress intended

to express its purpose through the

ordinary meaning of the words it uses:

Escondido Mut. Water v. La Jolla, 466

U.8. 763. Tid,» 196 Bee Bees 24a8

(1984); Jefferson Cty. Pharmaceutical

Ass‘n v. Abbott Labs., 460 U.S. 150,

157-171, 103 S.Ct. 1011, 1017-1024

(1983); Consumer Product Safety Com'n

v. GTE Sylvania, Inc., 447 U.S. 102,

108, 100 S.Ct. 2051, 2056 (1980);

Atchison, T. & S. F. Ry. Co. v. United

States, 617 F.2d 485, 490-491 (7th Cir.

1980); and National Insulation Transp.

Committee v. I.C.C., 683 F.2d 533,

537-540 (D.C. Cir. 1982).

by eae

ene)

sip n ay seh

Pe es WEL ay oe

iS Daae e, MaAGS ARUR NO

elt a Maa? nl ra ty gal hl la Tn Sa inl A ann Nate Ss LS gash Aa cael a ARN REY [AER ARIS Sa a0

paragraph (d). See Webster's New

Twentieth Century Dictionary

Unabridged, 2028 (2nd ed. 1964)

("Ventilate, ... 1. to circulate fresh

air in (a room, etc.), driving out foul

air. 2. to circulate in (a room, etc.)

so as to freshen: said of air. 3. to

provide with an opening for the escape

of air, gas, etc.; to furnish a means

for airing ...." “Ventilation, 1. the

act or process of ventilating. 2.

means of doing this; ventilating

equipment....”)

Although the FRA provisions clearly

do not pertain in the instant case, the

lower courts gave Mosco every benefit

of the doubt by assuming that the

regulations were applicable and

accepting as true Mosco's testimony

that the window indeed was dirty and

a 22 «

the temperature inside the locomotive's

cab was hot. Even so, the evidence was

insufficient. In affirming the grant

of a directed verdict the Fourth

Circuit Panel correctly held:

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 testified that on the day he

was injured, he inspected the

locomotive before beginning work

but he 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 of the B&O to

maintain the parts and

appurtenances of the locomotive in

safe and proper condition as

required by the Boiler Inspection

Act.

817 F.2d at 1092. (App. 16a-17a.) See

also Ehalt v. McCarthy, 138 P.2d 639,

645-646 (Utah 1943) (where the

» 20 =

locomotive's boiler was in proper

condition and safe to operate, but

plaintiff neglected to keep it filled

with water, the cailroad did not

violate the Boiler Inspection Act);

Pevor v¥, Chicago, R.l. & P.Ry. Co., 39

P.2d 563, 570 (Okl. 1935); Fryer v. St.

Louis-San Francisco Ry. Co., 63 S.W.2d

47, 53 (Mo. 1933)("{A] plaintiff cannot

recover when his evidence not only

shows no defect but also fails to show

that the unsafe operation of the

appliance was not the result of his own

improper act, when the circumstances

tend to show that such unsafe operation

of the appliance would be a natural and

usual result of his improper

Operation."); Luce v. New York, C & St.

L.R. Co., 205 N.¥.S. 273, 277, 209 App.

Div. 728 (1924) (where defendant

«= 28 =

provided the plaintiff with a safe

locomotive, but plaintiff failed to oil

it, the defendant did not violate the

Boiler Inspection Act); cf. Brady,

supra, 320 U.S. at 484, 64 S.Ct. at 236

("Here the rail was sufficient for

ordinary use, and the carrier was not

obliged to foresee and guard against

misuse of the derailer, even though the

misuse occurred as often as the

evidence indicated. It was the

wrongful use of the derailer that

immediately occasioned the harm.")

The Fourth Circuit likewise

rejected Petitioner's contention

regarding ventilation, but as a matter

of statutory construction. The Panel

held that this argument ”. .. is

merely a restatement of his claim that

the cab windows should have been

« 26 «

equipped with protective devices." 817

F.2d at 1092. (App. 16a-17a.)

Significantly Mosco does not seek

review of the Panel's interpretation of

the statute and therefore his

contention regarding adequate

ventilation must also fail.

The District Court rejected Mosco's

Boiler Inspection Act claim on the same

basis and also set forth another reason

why the claim was fatally flawed.

Common sense compels the conclusion

that the occurrence was caused by the

alleged misconduct of a third party --

not by dirt and heat. Simply stated

the remote causal connection woven by

Mosco was too attenuated to impose

liability upon the B&O for another

person's misdeeds. Davis v. Wolfe,

Supra, 263 U.S. at 243, 44 S.Ct. at 66

= 27

("{A]n employee cannot recover under

the Safety Appliance Act if the failure

to comply with its requirements is not

a proximate cause of the accident which

results in his injury, but merely

creates an incidental condition or

situation in which the accident,

otherwise caused, results in such

injury ....") See also Green v. River

Terminal Ry. Co., 763 F.2d 805, 810

(1985); Johnson v. Chicago Great

Western Ry. Co., 64 N.W.2d 372, 376-378

(Minn. 1954); and Pryor, supra, 39 P.2d

at 571-572; cf. St. Louis & §. F. R.

Co. v. Conarty, 238 U.S. 243, 249, 35

S.Ct. 755, 786; and Lang v. New York

Cent. R.§ Co., 255 U.S. 455, 461, 41

S.Ct. 381, 384.

a Se

CONCLUSION

For the foregoing reasons,

Respondent, The Baltimore and Ohio

Railroad Company respectfully requests

that this Honorable Court deny

Petitioner's Request for Writ of

Certiorari.

Respectfully submitted,

H. RUSSELL SMOUSE

RANSOM J. DAVIS

NANCY S. ALLEN

MELNICOVE, KAUFMAN,

WEINER, SMOUSE &

GARBIS, P.A.

600 Charles Center South

36 South Charles Street

Baltimore, MD 21201-3060

(301) 332-8581

Attorneys for Respondent

5888a

= 26 «

APPENDIX

IN THE

UNITED STATES COURT OF /.PPEALS

FOR THE FOURTH CIRCUIT

Civil Action No.

86-2037

LEE A. MOSCO, JR.,

Plaintiff-Appellant,

THE BALTIMORE & OHIO

RAILROAD COMPANY,

Defendant-Appellee.

Before Phillips and Ervin, Circuit

Judges, and Merhige, Senior District

Judge for the Eastern District of

Virginia, sitting by designation.

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 Federal Boiler Inspection

Act, 45 U.S.C. §23 (1982), and the

Federal Employers’ Liability Act

("FELA"), 45 U.S.C. §§51 et seq. (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.

- 2a -

At the time the injury occurred,

Mosco was approaching 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

locomotive 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 window 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

- 3a -

offering any evidence concerning the '

absence of screens, bars, grates or

similar devices from the windows of the

locomotive's cab, and to prevent Mosco

from contending that the absence of such

protective devices constituted a

violation of the Boiler Inspection 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 directing a verdict

for the B&O on the Boiler Inspection

Act claim. In our view, the district

- 4a -

court acted properly in granting the

B&O*s motions in limine and for directed

verdict, although we reach this

conclusion for different 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 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. . ..” 45 U.S.C. §23. The Act

also prohibits the operation of any

locomotive that has not passed certain

tests and inspections prescribed in the

applicable rules and regulations. Id.

The Federal Railroad Administration has

promulgated regulations concerning

locomotive safety standards and

inspections. See 49 C.F.R. §§ 200 et

seq. (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 (1943). Carriers that

violate the Act may be held liable to

employees who are injured as a result of

the violation. See, e.g., Lilly, 317

U.S. at 485; Green v. River Terminal

Railway Co., 763 F.2d 805, 810 (6th

Cit. 3963). :

In this case, the essence of Mosco's

Boiler Inspection Act claim was that the

locomotive in which he was injured was

- 6a -

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, because it

was often necessary to operate the

locomotive with its windows open.

We believe that the district court

incorrectly apprehended the nature of

the duty imposed by the Boiler

Inspection Act in granting the B&O's

motion in limine. The district court

was of the opinion that a carrier cannot

violate the Act so long as it complies

with the applicable safety and

inspection regulations promulgated by

the Federal Railroad Administration.

As the district court correctly noted,

the B&O had complied with the regulation

- Ja-

requiring safety glazing of locomotive

cab windows. See 49 C.F.R. §223. The

district court believed that the B&0O's

compliance with this regulation

satisfied its duty under the Boiler

Inspection Act. Accordingly, the

district court excluded the evidence

concerning the absence of screens,

bars, grates or similar protective

devices from the cab windows that Mosco

intended to offer to prove a violation

of the Boiler Inspection 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 Inspection Act in one of two

ways. First, it may fail to comply with

the regulations promulgated by the

Federal Railroad Administration.

- 8a -

Compliance with these regulations 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 locomotives

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, “[t]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 (Sth Cir. 1968);

Calabritto 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 appurtenances" does not

include every item of equipment that

- 10a -

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

Interstate Commerce Commission

[now the Federal Railroad

Administration], are within the

[Boiler Inspection Act]. But mere

experimental devices which do not

increase the peril, but may prove

helpful in an emergency, are not.

These have not been excluded 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., 720 F.2d

1149, 1152 (9th Cir. 1983) (Lunsford

interpreted “parts and appurtenances"

“as encompassing ‘[w]lhatever in fact is

an integral or essential part of a

completed locomotive, and all parts or

attachments definitely prescribed by

- lla -

lawful order of the [Secretary]

. -'") (emphasis deleted).

From Lunsford, we derive the rule

that a carrier cannot 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

- 12a -

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 devices 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 believe that the district court

correctly excluded evidence concerning

the absence of such protective devices

as irrelevant. Mosco contends, however,

that even if the exclusion of this

evidence was proper, the district court

- 13a -

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 the windows were

kept open, the interior of the cab

became 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

“({c]lab windows of the lead locomotive

shall provide an undistorted view of

- 14a -

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 testified 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

- 15a -

failure of 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 adequate if

the windows were left open. There was,

however, as he points out, no way to

prevent objects from entering the open

windows of the cab. We fail te see how

this state of affairs violates the

requirement that carriers provide their

locomotive cabs with adequate

ventilation. 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

- 16a -

protective devices. For the reasons

discussed above, this claim does not

constitute 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 similar

protective devices from the windows of

the locomotive's cab, the B&O was

entitled to a directed verdict on

Mosco’s Boiler Inspection Act claim.

The evidence of dirty windows and

purportedly inadequate ventilation,

which was admitted, was not substantial

enough to support a verdict in favor of

Mosco on the Boiler Inspection 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,

- 17a -

e.g., Gairola v. Commonwealth of

Virginia Department 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

windows, it could have returned a

verdict for Mosco based on breach of

the B&O's duty of reascnable 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 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

- 19a -

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 district 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 concerning 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

- 20a -

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

- 2la -

juveniles who, according to Mosco,

congregated at the Virginia Avenue

Tunnel. 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 person,

such as the property Surrounding the

Virginia Avenue Tunnel. See Cazad v.

Chesapeake & Ohio Railway Co., 622 F.2d

72, 73 (4th Cir. 2966). The @istrict

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 — as the

dangerous condition was foreseeable to

the carrier.

In our opinion, these instructions

adequately informed the jury of the

- 22a -

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 inspect premises

owned by a third person for the purpose

- 23a -

of detecting the intentional criminal

activity of trespassers 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 committed prejudicial

error in questioning him on two

occasions 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.

- 24a -

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 snawlousie had testified that his

driver's license had not become due for

renewal 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 iuletiiien 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).

- 25a -

For the reasons stated in this

Opinion, the judgment of the district

court is affirmed.

- 26a -

IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF MARYLAND

Civil Action No.

HAR-84-4228

LEE A. MOSCO,-Jr.,

Plaintiff,

Vv.

THE BALTIMORE AND OHIO

RAILROAD COMPANY,

Defendant.

TRANSCRIPT OF PROCEEDINGS

Volume II

BEFORE THE HON. JOHN R.

HARGROVE, J.U.D.C.

APPEARANCES

For the Plaintiff: LAWRENCE A. KATZ, ESQ.

For the Defendant: RANSOM J. DAVIS, ESQ.

[131] MR. DAVIS: Your Honor, the

defendant does [have] a written motion

- 27a -

for a directed verdict in this case at

the close of plaintiff's evidence, under

Rule 50A, of the Federal Rules of Civil

Procedure.

iI have not prepared a separate

legal memorandum in support of the

motion. The grounds of the motion in

general terms are stated there. Of

course, I would rely on the legal

argument on the trial memorandum that

we submitted at the outset of the case.

[132] We have two statutory bases of

suit in this particular action as the

Court knows from the motion in limine

argued at the beginning of the case.

Under the Boiler Inspection Act and

given the state of the plaintiff's proof

here and frankly, the Court's prior

ruling, it seems to me the defendant is

entitled to a directed verdict under

that theory of the case.

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The plaintiff has virtually no

evidence before the Court and before

this jury showing any violation of the

Boiler Inspection Act, showing any

unsafe condition of the locomotive. And

of course to the extent his proffer was

that something about the window was

deficient, the design of the window

really in terms of screens, bars,

grading, that type of thing, -- he

hasn't offered any proof, consistent

with the Court’s rule, --

THE COURT: The Court ruled that

the evidence was not proper under the

Boiler Inspection Act. The grates and

seals, -- screens, bars and seals and

other than the window itself. I mean,

that is the appurtenance that the [A]ct

talks about, the window. It doesn't

talk about things that are not on the

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vehicle. I mean on the locomotive. It

talks about what is on there, whether or

not, -- I think the [A]ct itself says

[133] parts and appurentences. It

doesn't say what might and what might

not. I think we have been into that.

There is no sense in going, --

MR. DAVIS: Exactly, there is no

point, --

THE COURT: I note that you do talk

about the absence of screens, -- but I

restricted him from getting involved in

that, simply because that was not

relevant in this case, under the safety

act.

MR. DAVIS: Well, the motion itself

was prepared prior to the beginning of

trial.

THE COURT: That is probably, --

okay, all right.

- 30a -

MR. DAVIS: Exactly, -- I might say

also that plaintiff was not prepared for

example, even to offer any expert

testimony on their, which even without

the Court's ruling would have been a

deficiency in proof.

THE COURT: It would have been very

tough to do that without expert

witnesses.

MR. DAVIS: The Federal Boiler

Liability Act is the next grounds of

suit. Now, I would submit that at this

stage in the case, we are entitled to a

directed verdict on that theory as well.

We are arguing here as we said in

the beginning of the case, with the

intentional act of a third person.

This is accepting the plaintiff's

theory [134] in the case that this

incident is attributable to the actions

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of some malicious stone thrower, a kid

Or otherwise.

There isn't sufficient evidence I

submit to Your Honor on the issue of

forseeability even given the favorable

inferences that must be drawn to the

plaintiff's proof at this point to

support a finding in the plaintiff's

favor. There is not sufficient

testimony from any of the individuals

who appeared, Mr. Epperly, Mr. Adkins

Or Mr. Mosco, as to sufficient number

of incidents, --

THE COURT: Well, Mr. Epperly and

Mr. Adkins didn't, -- didn't have any

of the actual -- they were not there,

but they talked about previous

incidents.

MR. DAVIS: They talked about other

occasions. They certainly weren't part

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of the train crew on that particular

day. Mr. Adkins’ memory was so bad

that he said he may have been on that

particular run once or twice before

August 1983, but his testimony was so

blurred in terms of placing the time, as

to whether it was before or after

August, ‘83, that I submit it is not

entitled to any credit.

But even Mr. Epperly'‘s testimony

however, before the Court and Mr.

Mosco's, there isn’t sufficient

evidence there to identify this as a

trouble [135] spot, that the railroad

should have done more than it already

had done, which was to equip that

locomotive with shatterproof windows

and to have police available to respond

to calls.

I submit that given the piaintiff's

proofs, he hasn't made this out to be a

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trouble spot such as would call for mor:

measures than were already done in this

particular instance.

And I would go one step further. I

think the Court at the bench conference,

and of course, as we developed in

testimony through Mr. Mosco, the proof

here really doesn't even go that far.

We don't have any identified stone

thrower. There is no proof known that

even supports the inference that this

rock or projectile or whatever it was,

may have originated with a-bridge or

some other place. We can't even

identify it with a third person.

On that basis, I can't imagine how

frankly the railroad could have

responded in any fashion. Police

protection can't address falling matter

from the tunnel area or something of

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Ba bet "

that nature. On this basis, and as

well of course, the acknowledged fact

which plaintiff now stiplates, that this

is Conrail's property, not the B&O's

property, we just do not have even a

threshhold showing of negligence which

would [136] compel the B&O to go

forward in any way, and respond to

plaintiff's evidence.

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

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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 stringent.

THE COURT: Well, they are more

stringent in some areas, but neglience

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

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not they had sufficient notice that

somebody might, -- there is a lot of

ifs, -- that somebody might be hit with

a rock, providing the engineer 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 evidence. We don't

know, -- is it just as easy to -- if you

want to surmise or make an educated

guess as Mr. Mosco, -- he could have

bumped his’ head, couldn't he? That is

just as probable isn‘t it, as something

being thrown?

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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.

THE COURT: Well, that is one

version. Then [138] here are a couple

of other versions where he said he

didn't see anything. So, it depends on

which version you want to take.

MR. KATZ: But isn't that the role

of the jury Your Honor?

THE COURT: Oh, yes, I didn't say

that wasn't the role of the jury. I

said it depends on which version. I

guess you could argue that he has given

several versions. He has given a couple

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of versions in writing, and then he

gives his version in court, -- and of

course, it is up to the jury how much

credibility you give to that type of

testimony.

But that doesn't go to negligence.

Even with all that, where is the

neg ligence?

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 testimony 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.

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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 department 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 question 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.

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In most of the safety act

provisions, something on the locomotive,

parts or appurtenants caused the

accident or played a very 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.

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

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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 railroad 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

{Boiler Inspection Act], -- I don't

think the Courts will bend the [A]ct to

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that great extent. You are bending it

way out of proportion.

I think if you look at that {Boiler

Inspection Act], the sole purpose of

that [A]ct was that if something on the

train, in the locomotive 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 [A]ct too far.

No, I think you are going to have to

show more than that. I think under the

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[A]ct itself, that safety act, you are

going to have to show that it was

something on the part or appurtenant,

which is really what the [A]ct 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 of

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 [A]ct. And even if you talk about

all the other things which I think you

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attempted to talk about, you still

wouldn't meet this [142] [A]ct, woul

[sic] meet the burden under this

[A]ct. Because it gives you sort of an

absolute liability. And when there is

absolute liability, you have got to

show clearly that it was a part or

appurtenance 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.

MR. KATZ: Under the Federal

Employees Liability Act, the Courts,

including our Supreme Court, has granted

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us broad discretion to use

circumstantial evidence. I think that

the evidence in this case, and all of

the inferences that can pe made from it,

and all of the intelligent inferences

that are permissible from it, certainly

creates a case by which the jury, --

THE COURT: Mr. Katz, don‘t you have

to draw, -- in circumstantial evidence

don't you have to draw, -- you can only

use it from known facts or

Circumstances. You can‘t draw an

inference from a supposition or a

possibility or a speculative fact. It

must be a known fact for which there are

[143] circumstances surrounding it.

That is my understanding of

circumstantial evidence; that you must

have some facts, and they must be proven

facts, from which the circumstances, --

- 46a -

and you must prove your facts by -- you

have to prove your facts at this point.

The facts must be proven.

And from those facts, and each fact

doesn't have to add up certainly to

negligence, but there must at least be

some facts which amount to, if you put

them all together. And when you put

—them all together, then they must

establish, -- at this point, sort of a

prima facie case on your part. And that

is, I think, what we have to deal with

now.

MR. KATZ: In this. case Your Honor,

THE COURT: Well, what are the

facts?

MR. KATZ: In this case Your Honor,

the evidence shows rather clearly that

several prior incidents of individuals

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throwing objects at locomotive trains

occurred at this precise location. The

evidence shows that many of these

Situations occurred from the embankment

area.

The evidence shows that at the time

of this accident, an object came from

the area of the embankment.

THE COURT: Well, I don't believe

that to be [144] the evidence Mr. Katz.

I believe you tried to get that evidence

in, but the only thing -- Mr. Katz, I

stopped Mr. Mosco, because he said at

one time, -- he didn't know what hit him

or where it came from. Then I think on

cross examination or redirect, you

attempted to get him to say that it came

from the embankment area.

I think at one point he said that he

might have thrown things, or that

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children might have been at the

embankment area, but I think in this

case, the evidence is -- his testimony

is I think on cross examination, -- he

said he didn’t know where it came from.

That was his testimony.

MR. KATZ: Your Honor, on redirect

examination, in relation to the entire

area which he described to the jury, --

he testified where that originated from.

He testified, from the embankment.

THE COURT: Well, I didn't permit

that Mr. Katz. You must remember I said

that, I stopped you baasess it was

purely and simply against, -- on his

part he had no basis for which to make

that statement, and he said so, many

times. And I think you were attempting

to-try to £111 it in.

But he said, without any question in

cross examination, and I believe on

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direct, he didn't know [145] where this

came from. And I think that is

consistent not only with those

statements, but it is consistent with

the reports and other statements, -- all

of them say he didn't know what hit him.

And he never said where it came from.

I think what happened is, we are now

trying to establish negligence by what

happened some other time. You don't do

it that way. The only reason that you

would have that is to show that the

railroad should have had knowledge that

maybe this is a troublesome area, and

that they should have taken some

precaution perhaps to protect the train.

But then you have got a next step,

you have to go with, what protection

should they have taken with the train

that they hadn't already provided. And

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if you can show what they didn't do, and

you show that that was a negligent act,

-- then perhaps that's how you reach

negligence in this type of case. And

that's the whole question here.

I will tell you, -- the issue here,

there is some evidence, -- you have

presented evidence that, -- by some

people that they throw stones here in

this area, -- good or bad. I mean, it

is not the best area for the trains to

run. And I think Mr. Mosco said so, and

a couple of other people. But then he

said it was not. [146] Well, he didn't

say that, but there is a statement which

was purportedly given by him, -- he

said, he didn't say that part, but he

Signed it, -- and the jury can believe

it-or not believe it. If they believe

it, then they can discount which ever

one they believe.

- 5la -

No, I think what I am going to do in

this case, -- I think this is the kind

of case, I will have to reserve on this.

Because I am not one hundred percent

happy with what amounts to negligence in

this case, because I fail to see it as

clearly as maybe I might. But then I

think there is some evidence which I

think the jury ought to look at, to see

whether they agree or disagree. I think

I am going to reserve on it, and

therefore, I am going to require the

defendant to put his case on.

5880a/1

- 52a -

THE FEDERAL RAILROAD ADMINISTRATION'S

SAFETY GLAZING STANDARDS

FRA Definitions

x x x

(h) “Windshield"™ means the

combination of individual units of

glazing material of the locomotive,

passenger car, Or caboose that are

positioned in an end facing glazing

location.

(i) “End facing glazing

location" means any location where

a line perpendicular to the plane

of the glazing material makes a

horizontal angle of 50 degrees or

less with the centerline of the

locomotive, caboose or passenger

car. Any location which, due to

curvature of the glazing material,

can meet the criteria for either a

front facing location or a side

facing location shall be considered

a front facing location.

(j) “Side facing glazing

location” means any location where

a line perpendicular to the plane

for the glazing material makes an

angle of more than 50 degrees with

the centerline of the locomotive,

caboose or passenger car.

(k) “Certified glazing" means

a glazing material that has been

certified by the manufacturer as

having met the testing requirements

- 53a -

set forth in Appendix A of this

part and that has been installed in

such a manner that it will perform

its intended function.

(1) “Emergency opening

window” means that segment of a

side facing glazing location which

has been designed to permit rapid

and easy removal during a crisis

Situation.

*« x x

(n) “Locomotive cab" means

that portion of the superstructure

designed to be occupied by the crew

while operating the locomotive.

49 C.F.R. §223.5.

FRA Glazing Regulations

Subpart B--Specific Requirements

§223.9 Requirements for new or

rebuilt equipment.

(a) Locomotives, including

yard locomotives, built or rebuilt

after June 30, 1980, must be

equipped with certified glazing in

all locomotive cab windows.

(b) Cabooses, including yard

cabooses, built or rebuilt after

June 30, 1980, must be equipped

with certified glazing in all

windows.

- 54a -

self-propelled passenger cars,

built or rebuilt after June 30,

1980, must be equipped with

certified glazing in all windows

and at least four emergency opening

windows.

49 C.F.R. §223.9.

§223.11 Requirements for existing

locomotives.

(a) Locomotives, other than

yard locomotives, built or rebuilt

prior to July 1, 1980, which are

equipped in the forward and

rearward end facing glazing

locations of the locomotive cab

windshield with a glazing material

that meets the criteria for either

portion of the impact testing

required for a Type I test under

the provisions of Appendix A of

this part, will not require the

installation of certified glazing

in the windshield location except

to replace windshield glazing

material that is broken or damaged.

(b) Locomotives, other than

yard locomotives, built or rebuilt

prior to July 1, 1980, which are

equipped in all locomotive cab side

facing glazing locations with a

glazing material that meets the

criteria for either portion of the

impact testing required for a Type

II test under th provisions of

- 55a -

Appendix A of this part, will not

require the installation of

certified glazing in the sidefacing

glazing location except to replace

sidefacing glazing material that is

broken or damaged.

locomotives and locomotives

equipped as described in paragraphs

(a) and (b), of this section,

locomotives built or rebuilt prior

to July 1, 1980, shall be equipped

with certified glazing in all

locomotive cab windows after June

30, 1984.

(d) Each locomotive subject

to the provisions of paragraph (c)

of this section which, as a result

of an act of vandalism has a

locomotive cab window that is

broken or damaged so that the

window fails to permit good

visibility --

(1) Shall be placed in

Designated Service within 48 hours

of the time of breakage or damage or

(2) Shall be removed

from service until equipped with

certified glazing in the following

manner:

(i) If£ the broken

Or damaged window is a part of the

windshield of the locomotive cab,

all of the forward and rearward end

- 56a -

facing glazing locations of the

locomotive cab must be replaced

with certified glazing.

(ii) If the broken

or damaged window is a part of the

sidefacing window of the locomotive

cab, all of the sidefacing glazing

locations of the locomotive cab

must be replaced with certified

glazing.

49 C.F.R. §223.11.

Appendix A--Certification Of

Glazing Materials

As provided in this part,

certified glazing materials

installed in locomotives, passenger

Cars, Or cabooses must be certified

by the glazing manufacturer in

accordance with the following

procedures:

a. General Requirements

(1) Each manufacturer that

provides glazing materials,

intended by the manufacturer for

use in achieving compliance with

the requirements of this part,

shall certify that each type of

glazing material being supplied for

this purpose has been successfully

tested in accordance with this

appendix and that test verification

data is available to a railroad or

to FRA upon request.

- 57a -

(2) The test verification

data shall contain all pertinent

original data logs and

documentation that the selection of

material samples, test set-ups,

test measuring devices, and test

procedures were performed by

qualified personnel using

recognized and acceptable practices

and in accordance with this

appendix.

b. - Testing Requirements

(1) The material to be tested

(Target Material) shall be a full

scale sample of the largest

dimension intended to be produced

and installed.

(2) The Target Material shall

be representative of production

material and shall be selected on a

documented random choice basis.

(3) The Target Material shall

be securely and rigidly attached in

a fixture so that the fixture’s own

characteristics will not induce

test errors.

(4) The Target Material so

selected and attached shall

constitute a Test Specimen.

(5) The Test Specimen will

then be equipped with a Witness

Plate that shall be mounted

parallel to and at a distance of

- 58a -

six inches in back of the Target

Material. The Witness Plate shall

have at least an area which will

cover the full map of the Target

Material.

(6) The Witness Plate shall

be an unbacked sheet of maximum

0.006 inch, alloy 1100 temper O,

aluminium stretched frame to

provide a taut surface.

(7) The Test Specimen will be

positioned so that the defined

projectile impacts it at an angle

of 90 degrees to the Test Specimen

surface.

(8) The point of impact of

the defined projectile will be

within a radius of 3” of the

centroid of the Target Material.

(9) Velocity screens or other

suitable velocity measuring devices

will be positioned so as to measure

the impact velocity of the defined

projectile within a 10% accuracy

tolerance, with test modifications

made to guarantee that the

stipulated minimum velocity

requirements are met.

(10) The Test Specimen for

glazing material that is intended

for use in end facing glazing

locations shall be subjected to a

Type I test regimen consisting of

the following tests:

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(i) Ballistic Impact in

which a standard 22 caliber long

rifle lead bullet of 40 grains in

weight impacts at a minimum of 960

feet per second velocity.

(ii) Large Object Impact

in which a cinder block of 24 lbs

minimum weight with dimensions of 8

inches by 8 inches by 16 inches

nominally impacts at a corner of

the block at a minimum of 44 feet

per second velocity. The cinder

block must be of composition

referenced in American Society for

Testing and Materials (ASTM)

Specification C33L or ASTM C90.

(11) The Test Specimen for

glazing material that is intended

for use only in side facing glazing

locations shall be subjected to a

Type II test regimen consisting of

the following tests:

(i) Ballistic Impact in

which a standard 22 caliber long

rifle lead bullet of 40 grains in

weight impacts at a minimum of 960

feet per second velocity.

(ii) Large Object Impact

in which a cinder block of 24 1bs

minimum weight with dimension of 8

inches by 8 inches by 16 inches

nominally impacts at the corner of

the block at a minimum of 12 feet

per second velocity. The cinder

- 60a -

block must be of the composition

referenced in ASTM C33L or ASTM C90.

(12) Three different test

specimens must be subjected to the

ballistic impact portion of these

tests.

(13) Two different test

specimens must be subjected to the

large object impact portion of

these tests.

(14) A material so tested

must perform so that:

(i) there shall be no

penetration of the back surfaces

(side closest to Witness Plate) of

the Target Material by the

projectile. Partial penetration of

the impact (front) surface of the

Target Material does not constitute

a failure; and

(ii) there shall be no

penetration of particles from the

back side of the Target Material

through the back side of the

prescribed Witness Plate.

(15) Test specimens must

consecutively pass the required

number of tests at the required

minimum velocities. Individual

tests resulting in failures at

greater than the required minimum

velocities may be repeated but a

failure of an individual test at

- 6la -

less than the minimum velocity

shall result in termination of the

total test and failure of the

material.

(16) After successful

completion of the prescribed set of

required consecutive tests, a

manufacturer may certify in writing

that a particular glazing material

meets the requirements of these

standards.

c. Material Identification

(1) Each individual unit of

glazing material shall be

permanently marked, prior to

installation, to indicate that this

type of material has oeen

successfully tested as set forth in

this appendix and that marking

shall be done in such a manner that

it is clearly visible after the

material has been installed.

(2) Each individual unit of a

glazing material that has

successfully passed the Type I

testing regimen shall be marked to

indicate:

(i) “FRA Type I"

material;

(ii) the manufacturer of

the material;

- 62a -

(iii) the type or brand

identification of the material.

Appendix to 49 C.F.R. §§221.1 - 223.17

5880a

- 63a -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.