# Petition for a Writ of Certiorari — Leggett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0063%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 368 U.S. 979 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0063%3A2. Public record. Not legal advice.