Petition for a Writ of Certiorari — Leggett v. United States

Office S. oteme Court, U.S.

FILED

DEC 21 ivh:

JOHM F. DAVIS. CLE>

in the Supreme Court of the

Rnited States

October Term

JAMES SICILIANO initia

VS.

THE DENVER & RIO GRANDE WESTERN RAILROAD

COMPANY, R :

espondent. ,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF UTAH

CLARENCE M. BECK

Felt Building

Salt Lake City, Utah

and

GEORGE M. McMILLAN

i020 Kearns Building

Salt Lake City, Utai:

By George M. McMillan

Attorneys for Petitioner

_———

INDEX

Page

PETITION FOR WRIT OF CERTIORARI ; |

OPINION BELOW Sina, or Porenetone ae

JURISDICTIONAL STA’ eMENT Neasemhegs pada 2

eB oy 8 Eo! iS) ee Ne

CONSTITUTIONAL PROVISIONS AND

yy Cg ts) oS are

gy, SEE SESSA CR Se de ae 5

REA: CNS FOR GRANTING WRIT 200... a

pte ht | )

POINT 1. THE DEC ISION OF THE UTAH STATE

SUPREME COURT IS NOT IN ACCORD WITH

APPLICABLE DECISIONS OF THIS COURT IN

THAT, IN A FEDERAL EMPLOYERS’ LIAB.LITY

ACT CASE, IT FAILED TO LIMIT ITS REVIEW TO

THE QUESTION AS TO WHETHER THE EVIDENCE.

WITH REASON SUPPORTS THE JURY'S VERDICT. 9

POINT II. THE STATE COURT FAILED TO APPLY

APPLICABLE FEDERAL LAW IN RULING THAT

THE TRIAL COURT ERRED IN INSTRUCTING THE

JURY THAT UNDER FELA AN EMPLOYEE DOES

NOT ASSUME THE RISK OF EMPLOYER NEGLI-

INT ea re ieee ew ah es nap bela nsancesana. 13

POINT III]. THE ERRORS OF THE UTAH STATE

SUPREME COURT DEPRIVED THE PLAINTIFF

AND PETITIONER OF RIGHTS GIVEN TO HIM

BY THE STATUTES AND CONSTITUTION OF THE

UNITED STATES. SD Mia cakes rae

Page

CONCLUSION 000000... ORI LS SA RRO

APPENDIX A . archi cde Redna saopirc basa Sis een

INDEX OF AUTHORITIES

Anno. 4. L.Ed(2d) 1787, Note 8, page 1793 .. AEE

Arnold v. Panhandle & S.F.R. Co. (1957) 353, US. 360, l

oe | Nea ren eee eee 11

Atlantic Coast Line v. Burkett (CCA 5, 1951)

(RR st it ign a eae Olea 15, 18

Bruner v. McCarthy (1943) 105 Ut. 299, 142 P(2d) 649.. 17

Butler v. Whitman (1958) 356 U.S. 271, 2 L.Ed(2d) 754,

SU EN iad Seis escapades shancclanpltpoens asttchsinue 1]

Connor v. Butler (1959) 361 U.S. 29, 4 L.Ed(2d) 10, 80

I aiken cnenanlineciniiniestineeniniasentiabasncniennianseatubents 11

Davis v. Virginian R. R. Co. (1960) 361 U.S. 354, 4 L.Ed

(2d) 366, 80 S. Ct. 387 .. ae 11

Deen v. Gulf C. & S.F.R. Co. (1957) 353 US. 925, 1 LEd

gs ks RE Bae temmeeaneaie iene 10

Ferguson v. St. Louis-San Fran R. Co. (1958) 356 US. 41,

2 ee ot ee TE 11

Futrelle v. Atl. Coast Line R. Co. sibtliele 353 US. 920, 1

L.Ed(2d) 718, 77 S. Ct. 682 .. ie . 10

Gibson v. Thompson ee? 355 U s. 1, 2 LEd(2d) 1 l,

Fe IE Be iia eastrenrteseilvnniestanicnctememaninnemipaisistanmnantasiitiase 11

Harris v. Penn R.R. Co. (1959) 361 U.S. 15, 4 meet

1, 80 St. Ct. 22. me 11

Honeycutt v. Wabash RR. Co. (1958) 355, US. 424, 2

L.Ed(2d) 380, 78 S. Ct. 393. 303 SW’(2d) 153 ............ 11

Larsen v. Chicago & N.W. R. Co. (1948) CCA 7, 171 F

(2d) 841, 846 ......... RA MRE AERA Aare cr RRS OC NETO 15

McBride v. Toledo Terminal RCo. (1957) 354 U.S. 517,

bLOeee oe 08 Oe ll

__ Page

Moore v. D. & RG.W R. Co (1986) 4Ut. (2d) 255,

292 P. (2d) $19,852. 16

Moore v. Terminal R.R. _— iia, 358 Us 31, 3 Lid

(2d) 24. 78S. Cr. 2 11

O'Donnel v. Elgin. te & E.R. x (19. 19) 338 U Ss. 38-4,

94 L.Ed. 187, 70S. Ct. 200... a ae

Rogery v. Missourt Pac. R.R. Co. (1957) 352 U. S. 500. 1

Ed(2d) 493, 77S. Ct. 443, reh. d. 353 US. 943,

1 L.Ed(2d) 764, 77S. Ct. 808... 7. 8, 10, 14, 19

Sentilles v. Inter-Caribbean Shipping Cote. (1959) 361

US. 107, 42.8020) 142, 09S. Ce. 173... 1

Shaw v. Atl. Coast Line R. Co. ide 353 US. 920, l

L.Ed(2d) 718, 77 S. Ct. 680 . 10

Sinkler v. Missouri R.R. Co. (1958) 356 U s 326. 2 > L.Ed

(2d) 799, 78S. Ct. 758 oo... 12

Texas & Pac. R.R. vs. Buckles (CCA 5 % 1956) 232 (2d)

257. 263 cert.d. (1955) 351 US. 984, 100 L.Ed.

SA ar ie ie: WE ecco: estinc ease ai 1-4

Tiller v. Atlantic Coast Line R.R. (1943) 318 US. 54, 63

he SE, EF RIE oe sein accents inion 15, 17

Thomson v. Texas & Pac. R. Co. roe 353 U.S. 926, 1 L.

Ba( de) 722. 77:5. Ce. O96 ........--5..2 i

Unie v. Thompson (1939) 3370 s. 163, 174, 93 LEd. +1282,

1295, @ S. Ce. 1018. 11 ALR(2d) 252 .................°.. 19

Teg I MEE ook ucts cnet scutes sn cdvonnhsecconiin sos

oak oe | somal aerated Ake plieeelre mas: Ay

I Seis ois 5 artcreccdnnst oben 5

Ward v. Atlantic Coast Line Co. (1360) 3 362 US. 396,

4. L-Ed(2d) 820, 80 S. Cr. 789 . poe tee

Wantland v. Ill. Cen. R. R. Co. at CCA ti 237 7 F(24)

B80 ys PU 5 porvnnss ees 15

Webb v. Ill. Cen. R. Co. (1957) 353 US. 513. | Ld(2d)

a. 77 ee Ge. OL... 10

ill

‘ a? icc tat .

in the Supreme Court of the

Hnited States

October Term

JAMES SICILIANO mate

etitioner.

vs.

THE DENVER & RIO GRANDE WESTERN RAILROAD

COMPANY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF UTAH

TO THE HONORABLE CHIEF JUSTICE OF THE UNITED

STATES AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

Petitioner. James Siciliano, respectfully prays that a Writ

of Certiorari be issue out of and under the seal of this Court

to review the judgment of the Supreme Court of the Stat.

of Utah entered August 24, 1961. (Timely petition for re-

hearing having been denied on the Sth day of October. 1961,

R. 0122).

I.

OPINION BELOW

The opinion of the Supreme Court of the State of Utah

(R. 0117-0119) with the dissenting opinion is printed in

Appendix A hereto and is reported at 364 P. (2d) 413, .

Ut. (2d) .....

II.

GROUNDS ON WHICH JURISDICTION IS INVOKED.

The sudgment of the Supreme Court of the State of Utah

was entered August 24, 1961 (R. 0119). Rehearing was

denied on October 5 1961, (R. 0122). Jurisdiction of this

Court is invoked under 28 U.S.C.A. Section 1257 (3).

Ill.

QUESTIONS PRESENTED

1. Whether in an action under the Federal Employers’

Liability Act (45 U.S.C.A. Sec. 51, et seq.) where there was

evidence from which a jury found that the railroad company

defendant was negligent in requiring plaintiff to use an unsafe

piece of equipment, it was error fc* the Utah State Supreme

Court to reverse the judgment entered for the plaintiff on the

ground that the defendant was not an insurer.

2. Whether the Utah State Supreme Court committed

error in substituting its judgment. on the question of the

evidence of employer negligence, for the verdict of the jury

and the judgizxent of the trial court.

2

3. Whether in substituting its interpretation of the facts

for the interpretation nevessarily adopted by the jury in an

Employers’ Liabitity Act case, the Utah Supreme Court deprived

plaintitt of rights guaranteed to him by the statutes aud Con-

stitution of the United States. 4

4. Whether the Utah Supreme Court denied a federally

protected right to petitioner in holding that the giving of the

italicized portion of the following instruction constituted

prejudicial error:

“You are instructed that at the time of the incident

we are concerned with, both plaintiff and defendant

were engaged in interstate commerce, and plaintiti's

claim for recovery is therefore governed by the Federal

Employers’ Liability Act. This act provides in substance

that every common carrier railroad shall be liable in

damages to any employee who suffers injury while

employed by such carrier, resulting in whole or in part

from the negligence of any of the officers, agents, v7

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its appliances.

machinery or equipment, except where the injury re-

sults solely from the negligence of thie o1.¢ so injured.

“Any such employee shall not be held to have as-

sumed the sisks of his employment occasioned by such

ho gligence.

“In actions against such carrier, the fact that the

injured employee may have been guilty of contributory

negligence shall not bar recovery, but the damages shall

be diminished by the jury in proportion to the amount

of negligence. if any, attributable to such employee.

“Under this statute. the test of liability is simply

whether the proofs justify with reasons the conclusion

that the negligence of the defendant employer played

4

sg BA

any part, even the slightest, in producing the injury for

which damages are sought.

“If the injury is caused solely by the negligence of

the employee, or if the defendant is not negligent,

then. of course, no recovery may be had by said em-

ployee.”

IV.

CONSTITUTIONAL PROVISIONS AND STATUTES

l.

INVOLVED.

The Constitutional provision invoived in this case 1s

the seventh amendment to the Constitution of the United

States, which provides:

2

“In suits at common law, where the amount in con-

troversy shall exceed $20.00, the right of trial by jury

shall be preserved, and no fact tried by a jury shall be

otherwise re-examined by any court of the United

States than according to the rules of the common law.”

. Statutory provisions involved in this case are certain

provisions of the Sederal Employers’ Liability Act, 45 U.S.C.A..

Section

51, et seq.. and more particularly, the following:

(a) 45 U.S.C.A., Sec. 51, which provides:

“Every common carrier by railroad while engaging

in commerce between uay of the several states . . .

shall be liable in damages te any person sutfering

injury while he is employed by such carrier in such

commerce . . . for such injury . . . 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 insutficiency, due to its negligente. in

its... appliances, machinery, track . . . or other equip-

ment.

4

(b) 45 ULS.C.A.., Sec. 54, which provides:

“In any action brought against any common carrier

under or by virtue of any of the provisions of this

chapter, to recover damages for injuries to or the death

of any of its employees, such employee shall not be

held to have assumed the risk of his employment in

any case where such injury or death resulted in whole

or in part from the negligence of any of the officers,

agents or employees of such carner; and no employee

shall be held to have assumed the risk of his employ-

ment in any case where the violation of such common

carrier or any statute enacted for the safety of employees

contributed to the death or injury of such employee.”

V.

STATEMENT

1. Marertal Facts. Petitioner James Siciliano was employed

by the defendant ratiroad company as a machinst. On the

day of the injury he was told by another employee to whom

petitioner had been assigned for the day to get a coil of wire

hanging on a nail. The wire was required to tie back a brake

beam. Piaintitt had not used or seen this particular coil of

wire before. There was no way for him to know that it was

coiled or hanging in a manner to be dangerous. The petitioner

raised his right hand in a position approximately the height

of his head to lift the wire from the nail. At the instant his

hand released the weight of the-coil from the nail, an end

of the wire sprang loose and flipped into plaintiff's eye.

Petitioner's theory was that the coil was hung on the post in

a position so that the ends were locked either under the coil

or amcng sone of its strands in a spring-like position. In that

5

position, the precariously balanced coil constituted a trap.

The coil was innocent enough in appearance, but in fact, it

was extremely dangerous. Defendant's evidence was that the

industry practice sanctioned hanging coils of wire with loose

ends on a post.

2. How questions were presented in courts below.

(a) Trial court. Plaintift asserted that the defendant was

negligent in failing to furnish safe equipment and tools to’

the petitioner, and particularly that the coil of wire in question

constituted a dangerous trap by reason of the manner in which

it was hanging on the post. Petitioner asserted that his position

to the etfect the end of the coil of wire was locked among

or beneath the strands, thus rendering it unsafe, was sup-

ported by at least three pieces of evidence: (1) the undisputed

testimony that when the weight of the coil released the end, it

“sprung like lightning” striking petitioner in the eye (R. 0068) ;

(2) the undisputed testimony that when the coil hit the ground,

it “sprung more” (R. 0069); (3) the physical characteristics

of wire similar to the piece in evidence as Exhibit D-2. The

defendant made motions for a directed verdict and for a

judgment notwithstanding the verdict of the jury on the

grounds that there was no showing of negligence. Defendant's

witnesses testified that rolls of wire with loose ends were hung

on posts; the witnesses did not testify that it was customary

to hang the coils with ends locked under or among the coils

50 that they would spring free when the weight of the coil

released them. The trial court denied defendant's motions and

instructed the jury that the hanging of a coil of wire with loose

ends upon a post could not in and of itself constitute negli-

6

gence, but “whether or not the Manner in which this wire was

hung on the post 1s negligence is for you to determine based

upon all ot the evidence and such reasonable inferences as

may be drawn’ (Instruction 20, R. 0057).

The trial court instructed the jury, additionally, without

any request from either the plaintitt or the defendant, that

under the Employers’ Liability Act an employce does not

assume the risk of his employment it the defendant is negligent

by reason of any defect or insufficiency due to its negligence

in its appliances, machinery or equipment (R. 0057).

(b) Usah State Supreme Coust. On appeal by the railroad

company, a majority of the State Supreme Cou.steversed the

judgment of the trial court holding: (1) The evidence did not

justify the jury's conclusivn that the coil of wire was an unsafe

piece of equipment, and (11) notwithstandig the fact that the

ruling on point (i) supra would have disposed of the case.

the court gratuitously opined “as a guide for instructions on

assumption of risk in FELA cases” that the trial court com-

mitted prejudical error in instructing the jury that under the

Act, an employee docs not assume the risk of employer negli-

gence. Justice A. Crockett, dissented on the grounds that

(i) there was evidence to support the jury's conclusion, and

under Rogers 1. Missouri R.R. Co. (1957) 352 US. 500, 77

Sup. Ct. 443. 1 L. Ed. (2d) 493, the verdict should not be

disturbed on appeal, and (ii) while the instruction on assumed

risk was unnecessary. it was not prejudical error.

VI.

REASONS FOR GRANTING THE WRIT.

1. The decision of the’ Utah State Supreme Court 1s not

in accord with applicable decisions of this Court in that, in a

Federal Employers’ Liability Act case, it failed to limit its

review to the question as to whether the evidence, with reason,

supports the jury's verdict.

2. The decision of the Utah Supreme Court conflicts with

the decision of at least two circuit courts in holding that

prejudical error results from giving an instruction to the ettect

that in FELA cases, the employee does not assume the risk

of employer negligence.

3. The opinion of the Utah Supreme Court conflicts with

the decisions of this Court and circuit courts of the United

States upon questions involving federal law.

(a) The State Court opinion failed to conform to

Rogers +. Missourt R.R. with respect to the factors involved

in reviewing the trial court's judgment in FELA cases.

(b) The State Court decision held as prejudicial error

an instruction approved by two circuit courts of appeal to the

effect that an employee does not assume risk of employer

negligence in cases under FELA.

4. The decision of the Utah Supreme Court denied

petitioner the right of jury trial protected under the 7th

Amendment to the Constitution of the United States. ‘

ARGUMENT

POINT I.

THE DECISION OF THE UTAH STATE SUPREME

COURT Is NOT IN ACCORD WITH APPLICABLE DECI-

SIONS OF THIS COURT IN THAT, IN A FEDERAL

EMPLOYERS LIABILITY ACT CASE, IT FAILED TO

LIMIT ITS REVIEW TO THE QUESTION AS TO

WHETHER THE EVIDENCE WITH REASON SUPPORTS

THE JURY'S VERDICT.

The facts in this case were susceptible to two interpre-

tations:

1. The coil of wire was hung in a position of tension

or spring with its ends held under among the strands. That

such a piece of equipment is unsafe for ordinary use—that tt

constitutes a trap — requires no elaboration. This was the

plaintitf's theory.

2. The coil of wire was hung with loose ends without

tension in the manner wire is ordinarily hung in industrial —

plants. This was the defendant's theory.

The defendant did not otter evidetue, as the majority

opinion below seems to imply, (cf R. 0117) that the prevailing

practice was to hang coils of wire in a position of spring or

tension with the ends locked under or among the coils.

The jury was instructed that the hanging of a coil of wire

wits. loose ends upon a post could not in and of itself con.

stitute negligence (Court Instruction No. 20. R. 0057). but

“whether or not the manner in which this wire was hung on

9

the post is negligence tor you to determine based upon all of

the evidence and such reasonable inferences as may be drawn

(ibid). Thus the jury was instructed that there could be no

negligence on the defendant's theory. The jury necessarily

adopted the plaintitt’s theory and necessarily determined that

the coil of wire in the particular circumstance of this lawsuit

constituted a trap and was not a sate piece of equipment

This Court has repeatedly, uniformly and pointedly heid

that the only question which the appellate court should review

in considering whether the judgment 1s supported by evidence

is whether the jury could tind that employer negligence played

any part at all in producing the injury, or stated another way.

whether there 1s any evidence which with reason could be

said to support the jury's findings. °.. . Judges are to fix their

sights primarily to make that appraisal and if that test 1s

made are bound to find that a case 1s made out. whether or

not the evidence allows the jury a choice of other possibilities.”

Regers to Massourt R.R. Co. (1957) 352 US. 500. tL. Ed.

(2d) 493, 77 S. Ct. 443: rehearing denied 353 U.S. 941. 1

L.Fd(2d) 764, 77 S. Ct. 808.

One cannot read the cases following the Rogers case and

have any doubt that its tcaching represents the firm and .on-

sidered judgment of the majority of the Court in cases of

thts kind.

Webb i. Ulinows Cent. R. Co. (1957) 352 US. 512, 1 L Ed

(2d) 503, 77S. Ct. aS, Shana) Atlant Coast Line R. Co.

(1957) 353 US. 920, 1 L Ed (2d) 718, 77S. Ct. 680; Fatrell:

t. Atlantu Coast Line Ro Co. (1987) 354 US. 920. 1 Ld

(2d) 718. 77 S.Cr. 682: Decne. Gulf. ©. & 8. FOR. Co. (1957)

10

353 US. 925, 1 L-Ed (2d) 721, 77 S. Cr. 715; Thompson t

© Texas & Pac. R. Co. (1957) 353 US. 926, 1 L.Ed (2d) 722.

77S. Ct. 698; Arnold t. Panhandle & S. F. R. Co. (1987) 355

U.S. 360. | L.Ed. (2d) 889 77 Sup. Ct. 840, reh. db

(1957) 354 U.S. 927, 1 Ld. (2d) 1441, 77 Sup. Cr.

1375, McBride t. Toledo Termuial Ro Co. (1957) 354

US. 517, 1 L-Ed (2d) 1534, 77 S. Ct. 1398: Grbson ¢ Thomp

rom (1957) 555 US. 18, 2 L.Ed (2d) 1, 78S. Ct. 2; Hones:

uti t. Wabash R. Co. (1958) 355 US. 424, 2 L.Ed (2d) 380.

78S. Cr. 393; Ferguson t. St. Lowss-San Francisco R. Cv. (1958)

3560'S. 41, 2 L-Ed (2d) 571, 78S. Ct. 671; Butler. Whitman. *

(1958) 456 US. 271, 2 L-Ed (2d) 754, 78S. Ct 734: Moor

t. Termimal R.R. Assn. (1958) 358 US. 31, $ L-Ed (2d) 2:.

“OS Ct. 2) Harris v. Penn R.R. Co. (1959 361 US. 15,

1 L.Ed (2d) 1. 80S. Ct. 22; Conners Butler (1959) 361 US.

29, 4 L-Ed (2d) 10. 80S. Ct. 21; Sentilles 0. Inter-Carthhean

Shipping Corp. (1989) 361 US. 107, 4 L-Ed (2d) 142, so

S.Ct 473; Dasis t. Virgiman Radway Cv. (1960) 361 US

354. 4 L.Ed (2d) 366, 80 S. Ct. 387, Failure of the writes

of the majority opimon for the Utah Supreme Court to

reter to a single case since Rogers 1s significant. partwularly

- in view of the authoritative suggestion that “ . . . earlier cases

_ should be examined in the light of the Rogers and W'ebh

cases. Anno. 4 L.Ed (2d) 1787 at Note 8. page 1793. It is

submitted that Conner +. Butler. supra, for instance. canner

be distinguished in principle.

Rather than considering the simple question upon which

appellate judges are counseled to fix their sights, the majority

of the court below in the case at bar was apparently misled

by a consideration of “insurer” liabilny. The plaintiff in this

11

case has never claimed that the defendant was an insurer. The

jury was expressly instructed upon the detendant’s own request

(Det. Request No. 1, R. 0021) that the defendant was not an

insurer of plaintiffs safety (Instruction No. 10, R. 00-46).

It is equally clear, however, that as a matter of iaw. the

plaintiff 1s not an “insurer” of his own safety. In this con

nection the defendant itself ettectively proved on cross exami-

nation of plaintitt that he did ‘not anticipate and could not

have foreseen the dangerous condition of the coil of wire

as it hung upon the nail. In response to determined cross

examination, petitioner. admitted “I didn't know it was going

to flip on me” (R. 0082). Yet the effect of the decision of

the majority ot the Litak Supreme Court effectively requires

th. petitioner to assume the total burden of his loss.

This court has expiicitly adopted and repeated the view

that the philosophy of the Federal Employers’ Liability Act

is this: Industrial accidents do not generally “just happen’ ;

they are brought about. Mr. Justice Brennan, speaking for the

majority of this Court in Senkler 1. Missours R.R. Co. (1958)

356 US. 326, 2 L.Ed(2d) 799, 78S. Ct. 758, stated (at 329 US.

Report, 802, 803 L.Ed):

. The cost of human injury, an inescapable

expense of railroading, must be borne by someone, and

the FELA seeks to adjust that expense equitably be-

tween the worker and the carrier .

The rule which imposes liability for damages when employer

negligence played uns part at all in the injury necessarily re

quires that appellate review be limited to the question as to

whether the jury could fairly find upon any reasonable basis

that an unsafe condition was “brought about” by the railroad.

12

In the case at bar. the ratroad adnuttedly hung the coi of

wie on the post and then required petitioner to use it.

It is submutted that the Appropriate scope of review by

the Utah State Supreme Court was a consideration of two

sample questions:

1. Can n be determined as a matter of law that the coil

of Wire Wds Not in d posture of tension, sumilar to a trap, ik

accordame with the theory necessarily adopted by the jury ¢

2. Can it be held as a matter of law that a coil of wire

hanging on a nailin a position of spring or tension as a trap

is 4 sale prece ot equipment 7

An attirmauye answer to ether of these questions could

not withstand objective analysis. dt is suggested that the

railroad company caanot answer this petition without making

the same aigument to ths Court which the jury reyected and

thar as exactly what rt as disabled trom doing under prior

decisions of this court: Compliance with the admonitions ot

this Court in Regors and succeeding cases necessarily would

have led to attirmation of the judgment of the tral court.

POINT Il.

THE STATE COURT FAILED TO APPLY APPLICABLE

FEDERAL LAW IN RULING THAT THE TRIAL COURT

FERRED IN INSTRUCTING THE JURY THAT UNDER

FELA AN EMPLOYEF DOES NOT ASSUME THE RISK

OF FMPLOYER NEGLIGENCE.

In culing that the jurys verdict was not supported by the

evidence. reversing pluntitt’s judgement and ordering the trial

13

court to enter judgment for the defendant, the State Supreme

Court made a final disposition of the case insofar as its own

powers are concerned. However, as an apparent gratuity to

the railroad, and “in order to serve as a guide for instructions

on assumption of risk in FELA cases,” the Court held that it

was prejudicial error to instruct that the petitioner did not

assume the risk of any negligence by the defendant (R. 0117.

page 2). It is submitted that failure to follow Rogers

Missourt R.R. case requires reversal. The question remains

as to whether petitioner 15 entitled to have the judgment of

the trial court reinstated because the State Supreme Court erred

in its ruling on the assumpcuon of risk instruction, or whether

the ruling correctly states the law so that petitioner 1s entitled

only to a new trial.

This court has reviewed FELA cases involving only the

propricty of instructions, O'Donnel v. Elgin. Joliet and E.R. Cv.

(i949), 338 US. 384. 94 L-Ed. 187, 70 S$. Ct. 200; Ward 1.

Atlanty oan Line Cv. (1960) 362 U.S. 396, 4 L.Ed(2d)

820, 80 S. Ct. 789. The erroneous ruling on the instruction

provides an additional reason for granting the writ in the instant

case.

The Utah Supreme Court decision here holds as error the

giving of the kind of an instruction approved by two circuit

courts of appeal. In Texas and Pacsfie R.R i. Buckles (CCA

5. 1956) 252 F. (2d) 275. cert. d. (1956) 351 US. 984. 100 L.

kd. 1498, 76 Sup Ct. 1052. the following instruction was held

by the Fifth Circuit to be “clearly correct” (at page 263,

Note 13):

We now instract vou on the question of assumption

ot ask In any sie brought against a railroad under

14

this law to recover damages for injury to an employce.

such employee does not assume any of the risks of his

employment in any case where the injury resulted.

in Whole or in part. from the negligence of any of the

agents of employees of the railroad.”

This case was relicd upon the majority of the Utah Court

in the case at bar. (R. 0117, page 2) although it is submitted

that it ts directly opposed to the majcrity’s opinion. In Adlantn

Coast Line t. Burkett, (CCA 5, 1951) 192 F.(2d) 941, the

Fifth Circuit held. in direct opposition to the Utah Court's

holding in the case at bar. that such an instruction was appro-

priate although the issue was not specifically raised, where

the instructions or negligence were clear.

The Seventh Circuit has ruled twice that the giving of an

instruction similar to that given in the case at bar at the request

of an employee was not erroneous. Larsen 1. Chicage and

NWR. Co. (19.18) CCA 7, 171 F (2d) 841. 846; Weantland

r. Uhinors Central RR. Co. (1956) CCA 7, 237 F (2d) 921,

926. In the latter case the Court stated:

“The Railroad also insists that the trial court erred

in instructing the jury that the Federal Emplovers Lia-

bility Act provides that an employee shall not be held

to have assumed the risks of his employment. This court

had occasion to pass on a similar contention in Larsen

v. Chuago & N.\WR. Co.. 7 Cir, 171 F- 2d S41. 816.

where it was held that such an instruction was not

erroneous.

The majority of the Stare Court relies on certain language

of Mr. Justue Vrankfurter in Diller 2. Atlantic Coase Lim

RR. Ge. (1945) 318 US. $4.65 8 Ce at. 185. 87 L Fd

610. as the coup that seems to have led to the disapproval of

15

the instruction in FELA cases... (R. 0117, page 2).

It is submitted that the confidence of the majorixy of

the Utah Court in the language following Note 9 of their

opinion is misplaced. All that Mr. Justice Frankfurter said,

in its context, was that under the 1939 amendment, an em-

ployee does not assume the risk of employer negligence. The

sentence in his opinion immediately following the place where

the Utah Court @tided its quotation is the important one: “But

until Congress chooses to aban. on the concept of negligence,

upon which the Act now rests in favor of a system of work-

men's compensation not dependent upon negligence, the

courts cannot discard the principle expressed in one of its

senses, by the phrase ‘assumption of risk’, namely, that a

carrier is not liable unless it is negligent.’ If, in some other

sense, the term ‘‘assumption of risk” may be a ‘hazardous

legal too!,”” it certainly cannot be said to have created any

confusion in the sense and context in which it was used by

the trial court here. In the case at bar there were careful,

painstaking instructions upon negligence, contributory negi-

gence, proximate cause, accidents without fault (Instructions

4, 8, 13, 16 R. 0039-0044, 0049, 0052). The Court explicitly

instructed the jury, in accordance with the defendant's theory

of the facts, that the hanging of a coil of wire with loose

ends could not. in and of itself, constitute negligence (R.

0057).

It has become an established practice in the State of Utah

to instruct the jury in FELA cases that the defendant is not

an insurer. See Moore +. D & RGW R. Co. (1956) 4 Ut.

(2d) 255, 292 P. (2d) 849, 852. Such an instruction was

given at the defendant's request here (Def. Requested Instruc.

16

tion 1; R. 0021, Court's Instruction 10, R. 0046). Mr. Justice

Crockett observed in the Moore case:

“Courts habitually give cautionary instructions as

was done in this case. Instruction No. 20 told the jury

that the defendant was not an insurer of the satets

of ats employees. No such issue had been raised and

it may be argued that the instruction was unnecessary.

However, it 1s invariably requested by the defendant in

such cases, and is usually given. It falls in the same

category as the two instructions discussed in the main

opinion. It docs no harm as a precaution and does net

misstate the law. The same reasoning applics to In

struction No. 13 relating to assumption of risk. the

giving of which has been held not to be error. This

court expressly so stat-d in Bruner v2 McCarthy in

speaking of such an instruction: “Yet this could not be

prejudicial to the defendants, * * * . In any event.

I doubt that even the most hypei-technical would say

that the instructions were reversible error.”

In his dissenting opinion in the case at bar. Mr. Justine

Crockett referred to his comments in the prior case (R. OOTS,

page 2). Rule 61 of the Utah Rules of Civil Procedure ty

substantially identical with Rule 61 of the Federa: Civil Rules.

It requires that reversal be predicated only upon a showing

of prejudice. The holding of the majority of the Utah Court

on this point violates the rule which the Court itself estab:

lished in the prior case of Brancr :. AleCarthy (1915) 105

Ur. 299, 142 P.(2d) 619, where it expressly held that the

giving of such an instruction could not be prejudicial to the

defendant.

A resume of the history of the assumption of risk doctrine

is given by Mr. Justice Black in his opinion in Ti//er 1, Atlant:

Coasi Ling Co. (19-45) 318 US. 54.8. Ct. 444, 87 L.Ed. 610

17

The reason tor the adoption of the 1939 amendment to the

FEL Act was there explained as the “insurmountable difficulty

in distinguishing between contributory negligence and assump-

tion of risk’ as a result of the “niceties if not the casuistries

of distinguishing between (them).” In the case at bar, the

main defense was that the plaintiff's own negligence caused

the injury. (See defendant's requested instruction 5 (R. 0025),

14 (0034); Defendant's Answer (R. 0005); Pretrial Order (R.

0007).

In the Atlantic Coasé Line case, supra, the Fifth Circuit said

at 943):

“Under the pleadings and evidence in this case, we

think that the trial judge was justified in thinking

that in the absence of a charge on assumption of risk,

the jury might have considered that defense under the

guise of nonnegligence. As said in the Tiller case,

supra (318 U.S. 54, 63 S. Ct. 447):

"Unless great care be taken, the servant's rights

will be sacrificed by simply charging him with assump-

tion of risk under another name.’

“Further, we should disregard any error which does

not affect the substantial rights of the parties, and

should not reverse and remand this cause for a new

trial on account of any alleged error unless it appears

to us that our refusal to take such action is inconsistent

with substantial justice. Federal Rule of Civii Pro-

cedure, rule 61, 27 U.S.C.A.”

It is submitted that the giving of the instruction to the

effect that the risk of employer negligence was not assumed

by the petitioner could not even be fairly stated to be error.

In no event should it be classined as prejudicial error. The

18

ruling of the Utah Court does not contorm to the applicable

federal rule.

POINT IIL

THE ERRORS OF THE UTAH STATE SUPREME

COURT DEPRIVED THE PLAINTIFF AND PETITIONER

OF RIGHTS GIVEN TO HIM BY THE STATUTES AND

CONSTITUTION OF THE UNITED STATES

That the State Supreme Court committed error in reversing

the judgment of the trial court is demonstrated in Potts |

and Hoof the argument. The rule that prejudicial error in

FELA cases constitutes a demal of a federal myght is weil

established ins this Court. One it. Thompson (19A9) 337

US. 163, 174, 93 L.Ed 1282, 1295, 69 S. Ct. 1018, 11 ALR

(2d) 252. Rogers i. Masses RR. Co. (1957) 352 US. S00,

1 L.Ee 62d) 193, 77S. Cr. 443. See generally thé cases decided

by this Court and cited in Points | and I of this argument.

The rule has been applied in a variety of contexts. “The

rights which the Act creates are federal rights protected: by

federal rather than local rules of law (citing cases). Baile}

v. Central Vermont R. Co. (1942) 319 US. 350, 352.87 L. Ed.

Leda 1447; Rise t. Akron C. & YR. Co, (1951) 342 US.

399, 96 L. Fd 398, 22.8. Ct. 312; Harris 2. Penn. 8. Co. (1959)

361 US. 15. 4 L. Ed. (2d) 1, 80 S. Ct. 22.

CONCLUSION

The ruling of the Utah State Supreme Court in the instant

case demonstrates a calculited hostility. to the Act. as its

19

humanitarian purposes have beeh reiterated in this Court. It

denies the petitioner substantive federal rights. If the decision

is permitted to stand it will substantially impair the uniform

and fair administration of justice in FELA cases.

For the reasons referred to herein, this petition for a Writ

of Certiorari should be granted. Upon review by this Court,

the judgment of the Utah State Supreme Court should be

reversed and the judgment of the District Court in and for

Salt Lake County, Utah, should be reinstated.

Respectfully submitted,

CLARENCE M. BECK

Felt Puilding

Salt Lake City, Utah

and

GEORGE M. McMILLAN

1020 Kearns Building

Salt Lake City, Utah

Attorneys for Petitioner

20

APPENDIX A

IN THE SUPREME COURT OF THE STATE OF UTAH

James Siciliano,

Plaintitt and Respondent,

V.

‘The Denver and Rw Grande Western

Railroad Company, a corporation,

Defendant and Appellani.

HENRIOD., Justice:

Appeal from a verdict in favor of plaimtitt for an on the

job eye injury ino a Federal Employers Liability Act! case.

Reversed. Costs to defendant.

The imyury occurred in September. 1952, at a time when

plaintit! was about 53 vears of age and had been working as

a machinist for defendant for 30 years. Trial of the case came

8 years later in 1960.

On the day cf the injury plaintutt was working on a steam

engine, with another employee, Wells. not his boss. Wells

asked plaintitt to get a ptece of wire hanging on a peg nearby.

Plaintitt, only witness to what ensued. testified that he © reached

up for the wire and all at once it sprung and came like light

ning and TP dropped the wire” ard when [ dropped the wire

it spruns that much more.” He said the end of the wire struck

him in the eve. That as the sum total of the evidence upon

Which pliintitt bases his claim that defendant was negiivent

1 45 USCA

Defendant presented evidence that coils of wire with loose

ends customarily were hung on pegs by industrial plants.

Besides claiming that plaintiff failed to sustain his burden

of proving defendant negligent in at least some degree,—

as he must,—defendant urges. that the court erred in giving

au objected to instruction that plaintitf did not assume any

risk in his employment.

_ Under the facts of this case we feel constrained to and

do hold that as a matter of law there was no proof offered by

plaintiff, by controverted evidence or otherwise, from which

reasonable persons could find that detendant was guilty of

negligence in any degree.

It has been established that the employer must respond

in damages under the Act if it was negligent in any degree.*

However, as stated by Mr. Justice Douglas in Ellis v. Union

Pacific RR.,} “The Act does not make the employer the insurer

of the safety of his employees while they are on duty. The basis

of his liability is his negligence, not the fact that injuries

occur.” 4 We can see nothing in the record here that establishes

such negligence, and we are convinced that to allow recovery

here would be te transcend the interdiction of the Ellis case

that “the Act does not make the employer the insurer of the

safety of his employees."

As to the contention that it was prejudical error to instruct

the jury as to assumption of risk, we agree. No issue was

raised by defendant's pleading on that score, and there was

no evidence that remotely could have suggested that assuming

the risk would have prevented recovery here. Nor would have

been proper an instruction on assumption of risk had this been

a case divorced from the F.E.L.A. (which specifically eliminates

45 USC.A, Sec $1. cases shown in note 871.

. 329 US. 694, 67S. Cr. $98, 91 L.Ed. $72 (1947)

. We quoted the language with approval in Lasagna v McCarty, 111 Utah

269, 177 P.2d 734, and the language also was approved in 1955 in the federal

courts in Atlant: Coast Sine RR ov. Anderson, 221 F.2d S48. see also in

Marcades | New Orleans Terminal Co, 111 Fed) Supp 680, Inman +

B &O RR., 108 Ohw App. Rep. 124, 161 NE. 2d 60

22

> wiv

such defense). since the evidence showed conclusively thai

Sialano had no knowledge of any hazard, such knov ledye

being a accessary factor before assumption of risk can be

urged as a defense.>

Mr. Chiet Justice Wolte expressed our disapproval of such

an instruction where the issue was not raised, in Bruner v.

McCarthy.® but said under the circumstances, where negligence

had been established as a matter of law, it could hardly preju:

dice dnyone. In another F.E.L.A case, Moore v. D.AR.GW.

RR.” Mr. Justice McDonough lent emphasis to such disap-

proval by saying that “In the present case, as in the Bruner

case, no issue of assumption of risk was raised by the pleadings

or the evidence and no good purpose could have been served

by the giving ef such an instruction. In some cases. it is con-

ceivable that (the instruction) might be proper and necessary

to dispel improper inferences from pleadings and evidence

... It ts unnecessary for us to determine whether under the

facts of this case the giving of the instructions constituted

reversible error since the case is reversed on other grounds.

The instructions were unproper and should not be given in

the new trial granted under this opinion.” The Nebraska case

of Fllis v. Union Pac. RR.S emphasizes such disapproval in

even stronger language.

The coup that seems to have led to the disapproval of

the instruction in FLPLL.A. cases, was executed by Mr. Justice

Frankfurter in his concurrence in Tiller v. Atlantic Coast

Line RR..Y when he said:

" “Assumption of risk’ as a defense where there ts

negligence has been written out of the*act. But

‘assumption of risk’, in the sense that the empiover ts

not lable for those risks which it could not avoid in

the observance of its duty of care, bas not been written

$ Clay v Duntord. 121 Utah 177, 239 Pod 1075

6 108 Utah 399, 142 Pld Giyv

* &§ Veoh 2d: 245, 292 Pid na

&. Ae Nan NES, 27 NOR 2d 92)

9 418 US $4, 63-8. Ct 334.87 L Fd ole

23

out of the law. Because of its ambiguity the phrase

assumption of risk 1s 4 hazardous legal tool. As a

means of intsructing 4 jury. it is bound to create con.

tusion. It should therefore be discarded.

This language was reterred to and applied in Texas & Pa

Ry. v. Buckles.!°

In order to serve as 4 guide tor instructions on assumption

of risk in F.E.L.A. cases. we state that im the usual case it 1s

prejudicial error to instruct that under the act the employee

does not assume the risks of his employment occasioned by the

employer's negligence. unless, as Mr. Justice McDonough

pointed out in the Moore case, such issue was raised by the

pleadings and evidence,--and we might add unless raised

by the pleadings r evidence. There may be a case where the

issue was not pleaded but where the evidence so emphasizes

the fact that the employee recklessly and foolishly took on a

known and dangerous hazard as to “create improper inter.

ences” that should be “dispelled” by a cautionary instruction,

as reflected in the language of Mr. Justice McDonough.

WE CONCUR:

Lester A. Wade, Chief Juste

Roger I. McDonough, Justice

F. R. Callister, Jr.. Justice

CROCKFTT. Justne: (Dissenting)

Beheving that the trial court correctly determined that a

jury question existed as to the defendani’s negligence. I am

constrained to disagree with the conclusion of the majority

opinion.

I am quite in accord with the thought often expressed that

the railroad is not an insurer of the safety of its employees,

aiid that it ts not required to eliminate all danger in the work

The very nature of ratlroading makes any such requirement

tO 33) Fed 2a 257

24

wnpractieal Yetscss tundamental that the rathroad does hare

the duty te cxcrape reasonable care to provide not cnly a sate

place. but aise sate means tor its employees to work, and te

ciimuanite ali dangers which reasonable prudence and caution

vould toresce snd guard against It the circumstances ure such

that recontble aen muight ditter as to whether dangers exist

with respect to which reasonable care would have required

additonal pe ctutions. that very ditterence of opimion makes

the questen of negligence one tor the jury.

The opimen quotes from the phanuits tesamensy that

he reached up ter the ware and all ar once it sprang and came

heht lightomnge and bE dropped the wire when LE dropped

the wire at sprune that teach mere The plamiuins chon

was that the pre of wire, 12

cul Sto Qo omehes ca diaaeter wath the ends turned ite

the Corl se thac thes were held under tension and thus likel:

tei Hip out when the tension was colessed) Comstituted: a brazard

te 19 tect lone. tolled mnte a

te bus safety: and that when the tonsrom was released. the

loose cnds did Hip our rosclang an the anus to his eve dt as

hot questioned thar io sas oa COE GTE practice tor the em

plovees ter thus Keep and ase wire in conmecuen wath ther

work Undeabtedh tusthe: precautions could have been taken

to remese or reduce any haar of the type chumed by tie

plhonttt bor a statement as te submission of the questren

ot neghgemee te a qun when further precautiens may have

been taken. sco Boston & MRR ov Meech. bse fo 2d ie

(1946)

I hase hereteiore stated my stews an regard to the desi

ability of giving more than tip service te the niht of criti bs

jury and the virtue of cxcrasine judicial restraint trom the

temptation to interters therewith beetuse We may met dere

with the verdat Stukle sot P RR ©@e. 122 Utah ita 285

Po 2d 867. 87D suppese thar al! midges. certammly me tudin:

the writer occasional bowl what appearte be the sacacie.

and incensistoncies of nares: But se lone as the verdict remdered

‘

tinds support in the cvidence and asnot bevend the pao

25.

reason, tor a court to nullify the verdict 1s to encroach upon

the jury's prerogatives and to that extent to impair the system.

To operate as tt ts supposed to do. trial by jury must entail

something more than giving the jury the privilege of guessing

what the court thinks, and if they guess mht the verdict ts

valid and if they guess wrong tt 1s set aside.

Cases decided by the United States Supreme Court have

consistently gone to great lengths in holding that an em

ployee injured in his employment ts entitled to have a jury pass

on his case whenever tere 1s any basts whatever in the evidence

on the part of the railroad which caused or contributed tow ard

lus injury. See Wilkerson v. McCarthy, 336 U.S. 55 (1949).

As stated in Rogers v. Missour: Pacihe RR. Co., 352 US. 500

(1957) it does not matter that. from the evidence. the jury

may also with reason, on grounds of probability. attribute

the result to some other cause. including the employee s con-

tributory negligence.

It is not to ve questioned that on appeal it is the responsi.

bility of this court to make an objective analysis of the question

under discussion. But in case of doubt or uncertainty, it seems

ro me entirely proper to give some consideration to these facts.

The trial judge had the issue before him and decided the

question to be ene fer the jury and submitted it to them. The

jury, presumably comprised of reasonable persons, found from

the evidence that the railroad was negligent. Thereafter upon

a motion for a new trial the judge was again confronted with

the question and demed the motion. As stated in Geary v. Cain.

69 Utah 340. 255 P. 423 (1927):

_ in case ot doubt. the deliberate action of the

trial court should prevail. Otherwise this court will

sooner or later find itself usurping the functions of both

the jury and the tral court. in violation of the spirit.

if not the letter of the Constitution.”

Based upon the foregoing considerations :t appears to me

that the evidence and the reasonable interences that could be

26

drawn therefrom are suc that faa minded sien mache dic:

ws to whether the nairoad was guy ot necience Which

contoibuted to Gitsc the plantits mypurs

Alinough Toactee thar it wats mot necessary fo se imstruct,

Pedoonet think = was prepudial eeror to instruct thar the

plants cd mot asscinc the risks un hes cnplosment See ts

concur epirien in Moores DAR Or WO RR. fevottrote

seven of the main epinmen dts therefore my conclusion that

the verdict should be atummed