Brief for the Respondents in Opposition — Long Island Railroad v. Parker

LIBRARY

EME COURT, U. 8. mre ok ge

AUG "17 1970 ©

IN THE

E,. RO BERT St. i

‘Supreme Court of the Buite States

Ost OBER TERM

re rs NG 3S4

—t

THE a ISLAND RAIL ROAD COMPANY, :

a Petitioner,.

_

V.

JOHN. R. PARKER, JR.,

. Respondent.

e

SSG NS GSE RSS SE SS SE OE ED SS

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI FOR THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT.

ABRAHAM 8S. Ropinson and LEWIs I. WOLF

Attoriicys for Respondent

John R. Parker, Jr.

“Office and P. O. Address:

¢ 0 SAMUEL Brit, Esa.

253 Broadway

New York, N. Y. 10007

Tel. No. 212 - 227 - 482

SAMUEL BriL1,

Trial. Counsel

Lewis I. Worr,

On the Brief

TABLE OF CONTENTS*

ae a = : PAGE

Descent rents P’resatatnd 552s cecsectcveceacsavssei Se Nae 1

Statement Of the Case oicoccccccocseccceens rs; pabeae Spaaeciad iteeeseeneecs -

A. The acts we eRe exit anmanindecbeus oaceia eis ratisnsteseeins ; =

Bb. The Second Cireuit’s Opinion ie one Guemansiod reveenss D

REASONS For DENYING The Wrrr:

Poin’ LT -THere is no contlici betwee the determina-

» tion below and that of the. three other Courts of -

Appeals relied on by the- Pevitioner because: (A)

all courts recognize thitt a railroad has an ailirmea-

tive duty to provide a safe. means of eeress from

employment : and. (13) the three other Courts of

Appeals found that under the facts and ¢ireum-

stances of their particular cases the place of injury

did not constitute a means, of Ingress ‘or eeress

while in the present case the Court below found

thet under the facts and cirenmstances of the

present case at least a jury question was presented — 6°

A. AGL Courts relied upon by the petitioner as

well as: the Court below, based upon decisions

of this Court, find an afiirmative duty on the

part of a railroad to provide its employee with

a safe means of egress from emplovinent and

that the’emplovee ix “emploved by" a railroad

with the meaning of Section 1 of the FELA

while in the places of ingress or egress even

(hough not performing sme of the duties of

emphoymrent oo... eee fi shaasanicaeesvehaibecan aaa seeee tie va

BD. There is ne contlict between the determination:

of the Court below and the three other Courts

of Appeals cited by —e RW A NOES ARAMA A me)

Pony LE Some of the statements madé in the peti-

fion miscoustrue the actual facts scbhdeaiesaleecuvvoasaniois i 15

CRAIN cereriodeannancxsnionine posuchoessdsaxninbaaaenenss eaueoes vileipemibanderes 18

* : + * PAGE

. TABLE OF CASES CITED

Bountiful Brick Conv. Giles, 270 US. Lok, TOs... 6.9, 11,_

; 12, 14

Cudohy Co. v. Parramore, 26% UlS. AIS, 420 wo. 9

Brie R. Ca, v.- Winfield, 244 U8. 190, 193 ............... 8, 9,12

“Branus Vv. dW: Mays, Ine. 25 A 2d 597, deave to

ee. ag ERS ae. S| ne a, ae

Pag TB Camp, Bad KV. MG AGL ones sivnivscveseoncsnsoonsees Is

Gail ¥. National Analine, SAD 2d 1039, 173 NUYS. ae

2d 109, leay to appeal denied, 6 N.Y. 2d 7060... Is

Metropolitan Coal Co. ¥. Johnson, 265 F.2d 13 CCU,

Re NS crctstccunvaunscniserasioeaiass ER UN Siomebive 9,11, 15

Quirk Vv. New York, C.faud Nt. 1. BR. Co. ASY F.2d 97

(CLA. 7.. Cert. den, 342 U.S. STI, 1951) 20... aon hy Bey AS

Rozelle v. Robertson, 29 ND. 20-589, 590 cece: Se i

Nussduidiat Vv. Pennsylvania R. R., 141 ee OHO (CA.

he BORA) ccscesee ell SUSAN paassacensanceronessenthenoreresenessesee# 9; 11, 14

Nymanshi ¥. Central RoR. of \. J..103 NOL. 50S, 135

AL 921 aliirming 102 NvILL. 271, 131 4. 628 (peti-

HON P. TAY .....,.ccsccsssercenensises Ms tceenmiompesineranavakinianens . Sf

Vincent Vv. Harvey Well Sereice, 309 PUSS. 964b (petition,

ED) © cssaxivenesee patietsccaxasnanad “Nea 1D I AR RSD STARS pe RE 14°

Werner v. Ne ¥. C.R. Co.; -..... AD. 2a ...... % oe 0 ee

June 7, 1970 <t_AVAs BARE escuela ‘Coe SSE en Oe ee It

Young V. Vew Lork, Vo Mo aad WY. R. H.. 44 F234 Zl.

lo Gah | 7’ SARE ere », 7,10, 13

. *

IN THE

| Supreme Court af the United States

OCTOBER TERM

*

~ No. 384 :

ee ——

Tue LONG ISLAND RAJLROAD, COMPANY,

Petitioner,

v.

i JouN. R. Parker, Jn. Sha

af : Respondent.

- : i Ps

RE: SPONDENT” S BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI FOR THE UNITED STATES

COURT OF ee FOR THE SE¢ ee CIRCUIT.

eo aear, oun R. Parker, Jr., noes prays that

the writ of certiovari to review the tinal judgment of the

Court ef Appeals for the Second Circuit: entered on Feb-:

ruary IS, 1970 be denied.

,

Question Presented.

May a jury find a railroad liable to its employee for

injuries sustained on an unlighted and dark’ stair leadling

° to a, paxserger train platform Where the jury finds that

Sue ‘h stairway reasonably lad te he used ax ai place of

egress from the plaintiffs place.of work where the railroad

should reasonably have foreseen that the employee would

use the train to go home?

2

Statement of the ‘Case.

A. The Facets. ;

The plaintiff, John Ro Parker, Ir, owas a track mnitin-

-tenanece foreman of the defendant, LALRIR. (1S 224 2).

Ile was in the railroad’s employ for twetity-two years (19:

2-3) and lived in Brooklyn for nineteen of those years with

his family (1925-10). -

Asan assistant forempn he would, take charge of the

gang doing, and himself would do. track maintenance and

repair (19c15-21, S024, 82216). When the foreman was

absent, as on the day in Geese amd several days prior

thereto® he would, in addition tothe aforesaid work, also

he required. to prepare the time and material records: for

the work done (22:5-25:159. Tle was assistant foreman for

SIX or seven Years and: had last heen acting foreman a& year

jearlier (102 218-23).

arker would report to the railroad in -Hicksviile, New

York (19 :22-24), at ihe office and locker room in the divide

tower (19:25-20"11) which was about 2.000 feet. east of

the Hicksville, station (20:14). Ile had been working out,

of Hicksville for about four or five years before the accident

(2915-19). ) After reporting to the office, a supervisor

would tell the gang where to work, whieh could be on any

branch of the L.ALRUR. east of Thieksville (21:2-6). 0 ~

On the day in question, July 24, 1964. as acting fgre-

man, after reporting to the offiee and going out with a

crew of about 12 men by truck, he returned to the office

At about 1:10. P.M.. ( COE NE EDBENS ENG ) . Ile then went’ to

the locker room (24:t4-16) in the divide tower, in’ which

} °

} >

* (Numbers in parentheses refer to pages of. trial transcript

‘where preceding colon (:);.and to line number -where after the

colon. Suffix letter “A” refers to pages. of Appendix to Petition.)

é

. e - : F ang 3 - . -

divide tower was also. located the observatiow tower and

control room and relays and elgtrical equipme nt for the

running of the trains (25: 1-235) in ane out of the Hicksville

station and between. the divide tower-and thé PHicksville

“station and points cast and west thereof,

The locker room had a desk and two tables, lockers for

fifty to seventy- five people, itnd was about 30 x 30 feet in

area (2602-7). “Parker made out the Various reports which

he was: requiied fo prepare, in that locker’ room (2611-12,

2621, OT, QT, 2TG6-107 27: 4-15, 15524-15625). and

with Shieh reports he had seme difficulty (28 :19-29:6).

After completing the work and Washing up and changing

his clothing (29:12-15) he went to’ the station building

abott 2,000 feet west of ‘the divide tower .to vo. home

(24): 17-25 )). ‘ —

To get. to the station from the divide tower, Parker walked

ona public street—one side of the railroad trick is Broad-

“way and othe other side of the arack is Dhicksville Road ~

(BO :10-1S). At that time. the re were Ho Cross streets: Cross-

ing Broadway and Tlic ksville Road inasmuch its the rail-

road track nd Latins still ran at ground le vel as well as on -

the new overhead tracks Ile walked diréetly underneath *

; the railroad 1 racks crossing hath streets (3124-10, 845-14)

Which still had railroad construction going on (107),

= . ad * .

While there was an entrance from the divide tower,

hailding on fo the, tracks (3b ibi-20y. Parker was uot sup-

Onoand prior to: July 2h f9G5 Parker used LLRR.

trains. to go to and from work and had a pass (32:8-20)

posed to use it (32 6).

provided (by the LLB. (338-09. 0 The pass had no re-

strietions (114s).

— Parker wits oi ” hour call for emergencies and in fact

had-been called on emergencies previously 133 :15-21). On

4 : “

tetas the occasions when he was called, he used his pass and trav-

“Dd ded oom

_eled on the railroad (33 222-25).

, ; * $ . . ‘ , »

‘arker used his pass all the time to go to and from

work (Sb:2-b)., - 2 >

At the time of the accident, plaintiff carned about

S155.00 per week before deductions, j

. At the station, Parker stubbed his toe on the middle

Hight of stairs leading to an upper platform as the stair

: Was. dark aud he could not see the steps too well (53:8-20,

ot ph 88-1, 50217, 1 21-84, 1 ae. 25, 200 25-201 2, S02

9, 220:18-22). | sore:

The djefeideint’s evidence indieated that some foremen

did the record-keeping at night (3iS24) and that the fore-

nen were required, to) prepare ahd were responsible for pre-

paring the records, regardless of where they were prepared

. . e. .

° (3T20-225 4, : ae

— Both parties concede that the LL RAR. did not: pay the

plaintiff’ either for preparing the reports which were re-

quired to be prepared nor for the time which the plaintiff

y “spent in traveling between the divide tower and his) home.

+ f .

The. Trial Court found that there was no precise for-

mila ats to the scope of- employment and the Trial Court

looked to cases under the New York Workmen's Compens-

sation Law (385). ~

©

gligence in having inadequately lighted) steps T4100, £10 :2-

| aha 6). - Defendant argued that a person’ who goes to his own

cir ti go home is not engaged in the scope of employinent

($27 16-21. CO Kraus ve SAV. Mays, Ine., 25 AD. 2d

a 507, Ly.-to App. Den. 17 N.Y. 2d 423 and GAIK vy. National

Analine, 5 NA 2d 1089, Ly. to App. Den. 6 N.Y. 2d TO6):

4 . ‘ -

The defendant presented to the jury the ixsue pf its ne-

v 5 a?

The Prial Court charged the jury on the issue of scope

of employment (467 218-170 219),

.

-

According to the defemlints exception to the charge,

the only test that) the defendant sought to apply at the

tridh was whether plaintiff! was on part of railroad | prop-

erty, Which he REFS had to use to leave his place of

work (78225-2489 and whether he was required to use the

train (ATS 8, VES 1-25, IS E612) ee, hey

@ 3 .

B. The | Second Circuit’s Opinion.

The opiniow of ilu majority ceknowledges Ulat-the-gen—

eral; rule is that FELLA is not applicable to injuries suf-

fered while an employee ix traveling to oF from work, The

opinion sets forth the great weight to. be given to a jury's

findings (3.A)-nd that the issue presented in the present case”

was deft pen by the Second Circuit's case of Young v. New.

York, NW. and ILRLR., TAB 251, 253 (19849. - The |

aise disetisses the rules concerning the duty of an

cmplovar railroad. to provide a safe. means of ingress and

can employee and that ‘injuries occurring in such

places of ingress and egress are within the scope. of employ

‘ment even though the employee: ix ‘hot physically at that

time performing any work for: the? railroad. The Secend

Circuit in its opinion then goes on to discuss the facts of

fhe present cise which a jury could consider in determining

whether or -not the: particnlar stair being sed hy the plain:

tif} could be found byvoa jury to come within the rules con-

ie o>

CLES \«

cerning “means of egress” (AEN). : ee

set

6

REASONS FOR DENYING THE WRIT.

POINT I

TION BELOW AND THAT OF THE THR OTHER

~ COURTS OF APPEALS RELIED ON BY THE PETFITIONER

THERE IS NO CONFLICT BETWEEN THE em) OTip

KE I

.ROAD HAS\AN AFFIRMATIVE DUTY TO PROVIDE A/SAFE

‘. MEANS OF EGRESS FROM EMPLOYMENT: AND (6) THE

- * PHREE. OTHER COURTS OF APPEALS FOU

UNDER THE FACTS AND CIRCUMSTANCES (OF ‘THEIR

PARTICULAR CASES. THE PLACE OF INJURY DID NOT

CONSTITUTE A MEANS OF INGRESS OR EGRESS WHILE

BECAUSE: (A) ALL. COURTS RECOGNIZE THAT A RAIL.

D THAT:

. IN THE PRESENT CASE THE COURT BELOW FOUND ©

THAT UNDER THE FACTS AND CIRCUMSTANCES OF -THE

“PRESENV CASE AT LEAST A JURY) QUESTION WAS

PRESENTED. © ype ia.

A. 4AH Courts: velied upon bys the petitioner as well as the

Court below. based tipon Alecisions of this court. find

an affirmative duty on: the part of a railroad to provid?

its employee with a safe means of egress from employ- -

ment and that the eyployee is “employed by” a railroad

with the meaning

places of ingress/or egress even though not performing

one of the actyal duties ,of employment.

succinetly set-forth by this Court ia the

os : Je ° “ee BE pas ee ow wes

ease of Bountiful) Brick Co, Ve Giles, 276 Uos. 154, 158,

wherein this*‘ourt: said:

/ : : The rule wa

"An employment: includes jet only the actual doing

of the work, Dut a reasonable margin of time and

space Necessary to be uséd Jin passing to and from

fae a the place where the work is to be done. If the

employee be injured while passing, with’ the: expréss

{f Seetion | of the FELA while in the.

x.

+

a : . -

or implied consent of. the employer, to or. from his

work by a way over the eniployer’s premises, or over

these of another in such proximity and relation as

foo be in pragtical effect apart’ of the employer's

premises, the injury “is one arising. out of and in

the- course of the émployment.”

The rule was anore fully expounded upon by the Second

(ireuit) in the ease of Young ve New York, N. Hl. and HR.

Co., 71 itd 251, Pee wherein the court said :

ra

“Although Young had finished his rin... that did

not inevitably cone lude his cHiployme nit, r his oecu-

pation in interstate commerce ; somuch at least Was

definitely settled in Mrie R. Co. ¥. Winfield, 244 US.

= 142. 173, and 37 S. Ctr, 556, 61 LL. Nd: 1057, Pe

‘as, 1918S B , 662,-a decision from which a good deal

of law has rennin: But it doesnot settle just when

he does end his employment, or when he begins it,

and, generally speaking, it does not include either

woing to or coming away from the place where the’

job is. carried on. Vocht v. Indemnity Ins. Co., 288

- US. 162, 169, 53.8. Ct. 380, 77 L.Ed. 676, ALR.

MD. One exception is when the workman, fs in a-

Vehiele provided for him by his emplover. Spencer

Aeloge & Sons v. Hieks, 285 US. 502, 52 S.Ct.

450, 76 L. Ed. 903: Atlantie Coast Line Ro Co. vy.

Williams, 284 FY 262 (CLCLAL 5). Another, when he

has not vet left the premises, or has entered them on

his way to work, Lamphere v. Oregon R. KN. (o.,

196 BL 38360 (CLCLAL 9) oNeaster vo Virginian R. Co.,

76 W. Va. 383. 86 SE. 37: Davis vl Chicago, ete.,

R. Co, 134 Minn. 49, 158 NW. 9112’ Louisville, ete:,

R. Co. ¥. Walker, 162 Ky. 209, 172 SW. S17: Ewig

ve Chicago, ete. Re Cot, 167 Wis: bt Sw NW. 442,

169 NAV, 429: Knowles vo No Y.NOTL & HL. Co,

v3 N.Y. 513, 119 N.E- 1023; pee v. Lehigh

: . 2

8

. Valley R. Co., 236 N.Y. 110, 140 NV. 212: Wabash

Ry. ‘vy. Industrial Commission, 204 HfL 419, i XE.

290. This last consideration is, however, by no metns

a conclusive test. Lis employment may y ieaia before

he reaches the premisés (or even after he leaves it—

words in parenthesis added ), Cudahy Co. v.. Parr

more, 263 US. 41S, 444 8, ¢'t. 153, 68 L. Ed. pi

30 ALR. 5322 Bountiful Brick Co. v. Giles, 276 ULS.

154, 48 8. Ct. 221, 72 0: Ed. he 66 ALR. 1h:

Moss Tie Co. v. Tanner, 44. (2d) 928 (C.CLA..5).

‘Conversely, if there are alternative Ways of reaching

the job (or leaving it- “words in parenthesix added),

one across the employer's property and another else-

i eal. the employer's liability, will depend upon

Whesher it is ‘reasonably neéessary” for the workman

to use the first, or whether he does so merely for: his

‘convenience, Tlover v. Central R. Co, of NAL, 255

I, $93 (OCCU. Los Rervsiak ve Pennsvivania RL Co.,

PTO FL TOS 4CLCLAL 34: Aldredgé vo Baltimore ‘and

0,8. BR. Cp. 20 Ff. t2d) 655, 660) (OLCLAL OS):

— oe) (McInerney. Buffalo and SS. R. Corporation, 20

No NY, 180, 121 NYE. S062 Tallon. Interhorough R.

TT. €o,, 22 3X. 1%, 14S. EK. 327,21 ALR. 1218;

Ames vy. N.Y. ‘entral KR. Co., 178 App. Div. 324, 165

NYS. S4; ae v. Blain, Ixy Mich. 20, 148 NW.

243: Symonuski vl ‘ontral Ry. of New Jersey, 102

ONL Lan, 271, 131 A, G28: fd, 103 -N.3. Law 508,

155 AL 921. Cf: Dodge v. Chicago G. W. Ry. Co.,

164 Lowa, 627, 146 NAW. LA. * This last corrolary does

not mean, as we understand it, that to hold’ the

cuplover, the workman's choice must be. instru

mestal to the work. For example, it) would be

Ht rnes except it helped a railroad to have its work-

men eross its railroad triads rather than go two

miles aroun The road would, for all) practical

purposes, be as well served if they went the long

way: aid yet it would be ‘unreasonable’ to require

~

f

©. them to do so. Although oniy their own convenience

wotild be met, that would he enough in so extreme a

Cuse, Concealed Within the phrases used, there is

the unconscious solution of a conflict of interest bes

Jween the twoy the workmen's convenience and the

employer's freedom from responsibility, Any such

Solution presupposes tliat some y ‘tlue has been set on

each; Int there can he no general principle, for the

interests are Various, and here i ix no conventional

scale in which they have a recognized place,”

The aforesaid general rules were sll recognized by the

other three Courts of Appeals which the petitioner claims

are in contlict : | | /

990 (CAL 3. 1944) at patyes §o2-53 quotes the approprigte

parts of re Winfield case (244 U.S. 170, 173): the Pavra-

wore’ case (263 (US. 418, 421) and the Bountiful Brick Co.

case (276 US. 154, 158). > ,

The case oon Sassaman NV, Penusylrania RoR. 144 yd

Z

Thus too in the case of Metropolitan Coal Co, ¥. Johnson,

=63 F.2d 173° (C.A. .1, 1959) cat ‘page 177, the Bountiful

Brick Co. case and the Winfield case as well as the Parra-

more case-are cited with approval.

In the case of Quirk vo. New York. Co and Bt. L. R..Co.,

189 F.2d: 97 (C.A. 7, C ert. den. 342 U.SZS87T1, 1951) at page

99, the Seventh Circuit's opinion quotes at le ‘ngth from the,

aforesaid Bountiful Brick Cuse.

Thus in the oe case the jury in ecordance with

the: charge given by the Trial Court. and jn view of the

limited exception thereto, has in fact found that based

upon the facts presented to them, the, stairway leading to

the defendant's station Which was controlled from the tower

in which the plaintiff had. worked _constitnted a means of

10,

egress from that tower to a place where elt plaintill fould

reasonably bevexpected to go in order to leave work, namely,

the defendant's train.

The Second Circuit Court of Appeals in the Youdg case,

THF 2d 251, 253, left open the question of whether Young's

pasfage from New Tlaven to Midway to get his train and

rf Midway to New Haven after he got through, was en-

gaged in interstate commerce. The Court said that,

“The disproportionate hardship of requiring \him to

go otherwise than by train may be enough: we nefd

not, and we do not, sav.”

.

The Court below in the present case restated the question,

in its opinion’ (3A), 7 +

We respectfully submit that in view of the facts of this

case the full issue was still not decided below because the

present plaintiff had not yet gotten on tothe train to leave

from the place which was in proximity 10 his place of work,

Thus, the relationship between the train station and the

divide tower and the construction and train tracks below

the overhead: line which was between the divide tower and

the station were such that the stairway on which the plain-

tiff was injured was or could be found by the jury to have

‘heen in such close proximity to the place where the plaingit,

did his. aectirmal work for ‘the defendant as to constitute a

place of egtess from such work. - This, of course, ix one of

the distinguishing factors between this case and the three

cases relied upon by the petitioner which will be more

spree ifie ally discussed here after. . . .

Thus, “the petitioner's description of the Second Circuit

Court's opinion below (page 7 of petitions is imrceurate

becuse the Second Cirenit did not set forth only the two

tests stated by the’ petitioner. The two alleged tests were

set forth in a nowspecilie way as being two of the factors

among others whieh the jury could) consider and vbase a

finding. ~ aed

IL

B, There is no conflict between the determination of the

Court below and the three other Courts of Appeals cited

by petitioner.

The determination of the court below and of the Trial

Court was that the plaintitl ‘was injured “in the employ-

ment” of the defendant railroad. "This is based wpon a set,

of facts which ‘indicate that the stuirway involved con-

stituted a place of egress from the plaintiif's employment

and that the defendant should reasonably have foreseen

that the plaintiff might, under-all of the facts of this’ par-

ticular case, be required to yse said stairway,

The three’ other Courts of Appeals, merely determined

that the places where those three -plaintitls were injured p

did not constitute places of ingress or egress within the

meaning of the case of Bountiful Brick Co. vy. Giles, 276

Us. 154, 158, and all of those three Courts of Appeals cited

and quoted that case.” - |

Thus. in the Saxssaman case (144 F.2d.950, CLA. 36.the

plaintiff worked in Jersey City, and lived in Newark. That .

pliintiff! was injured onca railroad) platform in Newark

after getting eff the train in Newark Where he had arrived -

after leaving his work il Jersey City. Thus. on. the facts

of that ¢ase the place where the plaintiff was injured was

not “in such proximity and relation as to be in pkactical

effort a part of the employer's premises” wher tig work

was being performed. ee i f

4

‘

In the Metropolitan Coal case (265 F.2d 173. CAL 1)

some mischievous boys had put a cable belonging to a eo-

calefendant (not the railroad) across the railroad track and

when the wheel of the railroad went over the cable, it

snapped into a window which broke and the plaiatisf Wits

injured by broken-giass as that court said “miles away from

hix jab" tat page W7Sy.° Further, the Wetropolitan Coal

case held that the plaintiff there “was not om a part of its

J

‘is -

rPaeg Leite A" a

premises wliich it was necessary or him to use to reach his

work” (at? page 178) unlike the present case where the

‘Court below determined that the jury could, find that’ the

stairway was one, which wis necessary for him to use in

order to leave the work and was in close proximity to the

place where the work was actually being performed. P

a .

° j

, }

"In the Ouvirk case (iso Petd 4, C.N. Ty, the plaintitf

therein did not get onte the railroad train until going some

[2 miles-from the place where the work, was actually per-

formed, by private automobile owned bya. coemploxee,

Further. in the Quirk case provision was anade by the rail-

road for Quirk to stay where he was working at the rail-

read’s expense: Further, in the Quirk case, there was a rule

that Quirk wax:to remain at the place of work. ‘This, that

court held that once Quirk had left the town in which’ the

werk Was gett lly being performed in ‘ao private ear. he was

ne longer enigiged in the course of employment. Thus, the

place where Quirk ®as injured was not in close proximity

to the place where the work Was actually being done and

Quirk had breached a rule requiring him to stay in the

town where the work was being done and Quirk did not

reasonably have to be at the place where he was injured.in

.

order to go to or from his work. ane

As heretofore sudiented. all three cases Which the peti- -

fioner alleges are in conflict with the determination of the

court below. in the present ease all rely upon. cite, and in

‘facet quote from this court's decision in the case of Bounti-

jul Brick C’o. V. he s, 276 ULS. 4 and Brie RRS (0, V.

Winfield, 244 U.S. 170, wherein it was held that the place

of ingress or egress need not necessarily be on the part of

the emplover’s premises where the work was being per-

formed, but could even be. on prémises owned by another

whieh are adjacent to the. work premises where it is rea-

sonably to be expected to be used as a means of ingress or

egress. Thus, the cases relied upon by the -petitioner do

: 13 ‘

- not involve’ premises on which the work was being per-

formed ior premises. adjacent thereto, In fact all three

cases, as well as the other cases cited by the petitioner at

pages 13-11 of the petition involved injuries sustained far.

from the place where the work was actually being ‘per-

formed and’in fact was either ona train, or in a car travel-

ing tu or from work, Or after getting off the train when

going home from work, or before getting on the train while

going to work. Thus, the Courts in those cases determined

only that means of egress from or ingress: 18 the place. of

employment were not involved and were too remote. low

unlike the present case where the plaintiff was working

in aw divide tower which controlled a station 2,000 feet dis-

tant, and those 2,000 feet were part. of the defendant's rail

line which lay.on and divided a public street which had |

different names on each side of the track. and no CYOSS

streets, where railroad construction was going on in that

street to. raise -the® railroad from a street level line to an |

elevated line, where the plaintiff herein Was subject to call |

in emergencies and lived about. 40° miles away from the.

divide tower where he was required to report to work and

Was thus required to- travel a distance of 80 miles per day

-and his take-home pay Was a mere $128.00 a week and it

was thus not feasible for the plaintitf to continue dis em-

ployment if he were not furnished the free railroad’ travel,

and the plaintiff in the present case had. not yet boarded

a train to go home. restos, = Lf

The court below in its opinion states that in Young v.

New York ON. HW. & H.R. R. ATA FP 8d 251, 253, CLA. 2,

1931) it had left open the question of whether a train trip

to the employee's home would be considered in the course

of employment if (if was unreasonable to expect him .to

_ travel by other means. The three Courts of Appeals which

the petitioner claims are in conflict reach only a pertion

“of the question left open. in. the Young ease: (a) While on -

the train going to or froin work (Metropolitan Coul Co. y.

. es

’

1t

Sohinsogi, supray Quirk vy, Vew York, C. and St. L. R. Co.,

supra: Vinecat v. Harrey Well Service, 309 FS. 961 (peti-

lion, p. P3e.05 0b) After getting off the train on the way

home (not while going from place of work to the train)

(Sassman Vv. Penn, RR. supra: Warner vo N.Y. OC. R. Co.,

A.D, 940 SE LL CE; Same 97, 1976. wo 1. veti-

Hien yp. Pers tes While going to a train on the way to

work (but not after getting off the train to the place of

work) (Symanuski vy. Central RoR. of No. WS NLA Le

OS, 135 AL 921 affirming 102 N. J. Le 271, 131 AL 628

eo p. 14). A a Ss rg ,

- a *

Thus, ail of the. cases cited hy the pe litioner were hedd

hy tie court not to involve places. of ingress: or egress: he-

canse they were too far from the place of work ‘within the

meaning of Bountiful Brick vy. Giles, and. no ‘necessity was

shown, Thus, the only thing, decided by the Court below

was that if it wax reasonable for the defendant to expect

“

that this plaintiff would travel home by its railroad, on.

- its unrestrictéd pass. then the railroad must provide a

safe means for getting to that train. The Court below dis-!

‘cusses the factors which it deents fo cotistittite some evi-

dence from which a jury could infer, whether or not it was

reasonalde for the defendant to expect aoplaintiff to travel. -

by train. In view of the citation by the Court below of

the Young case which discusses the law concerning’ ingréss

and egress as being within @ie scope of employment, we

view the decision of the ( ‘oul below as implicd|ly assuming

that the place of the accident was a place of egress if it

vere found that train travel was reasonably to be expected.

Petitioner, however, seems to constiue the decision of the

Court below to mean that all travel to “and from work. if

reasonably to be expected, are within FELA, bat) we. re-

spectfully submit that the facts in this case do not go so

far, unlike the vases relied upon by the petitioner which

go much further than the present case. ye

«

(15

.

Under the circumstances, and in’ view of the limited

facts in the present case whic ‘h were not’ involved in the-

causes cited by the petitioner, we respectfully submit to this

Court that there is no conflict: between the holding of the

Court: below and that of any other Court of Appeals ies

the other Courts of Appeals have not vet ruled on the fact

pattern and issues Similar to that here presented by. the

. exceptions to the charge and the facts of thit@ease. This

ix expecially true in view of the fact that the other Courts

of Appeals had no facts before them from which a jury

could find that it was unreasonable: to-expect the injured

‘rajlroad employee ta. be traveling by any other means than.

that whieh he was in fact using, unlike the present case

Where a jury found it fo be unreasonable ‘to expect the

plaintiff to travel hy any means other, than. that by whieh

he had yet to-commence traveling.

POINT 1

SOMELOF THE STATEMENTS MADE IN THE PETIT ION

MISC ONSTRU E THE ACTUAL FACTS.

The petition on page oO states that “Mr. ‘Parker traver sed

approximately S city blocks between the tower and the

Hicksville passenger ‘stations by walking on the public

street, known as pip fo Hicksville Road.’ In the

first place it isto be-n0ted that’ Hicksville Road and Broad-

way constitute a ‘ingle street down the middle of. which

rims the defendant's railroad track and that on one side “of

thea rack it is known as Hicksville Road and on the other

side of the track it is known as B roadway. Ir urther, there

“were in fact no & city blocks between the tower and Hic ks-

ville station because there were” in fact no’ cross streets

as the railroad track - prevented, any cross streets “from

existing between those two oplaces, and. further there

Was construction work going on between the tower and the

station at street level so as to create a-new trick which

7

©

‘

,

. ‘ ker 16

would be clevated:and ‘no. longer on the city street ‘once the

coustruction had beetrcompleted (30:10-18).

eS

° . . . : A ee . Z ‘

. The petitioner op page SEOs on to state that’ “there *

, Was ne evidenc eid the record > to indicate yp the LIRR

Was aware of ‘Mr. Parker’: s custonikiry method of traveling

tovand from work.” This is clearly’ wot the case (32 :8-20,-

BBS-O, BBAG-L1, 33-22-25, 34-2- 4). In view of the Tength—

of time wihielr Parker had been using the piss Which, is in

“evidence, the defendatt and its agents are certainly charge-.

ableewith “know ledge as to the means used by Mr. Parker

to travel on the railroad.

The petition at page 5 further alleges that “there was

ho evidence in the record to indicate that the LIRR: had

authorized Mr. Parker to use or were even aware that he

Shad to use Lit pais for, that purpose® (going to and from

work). In view of the fact that the -pass had no “rextyic-

“tions. (11422) and in view of the number of times (hat

Parker had in faet used the pass for the purpose of going

fo and from work, a distance of about 40° miles in, each

direction, it is respectfully submitted that a jatry. could

* certainiy infer that the ritilroad had authorized such use

and had know ledge, actual or implied, of such use.

a te ,

At the hoottofe of page 5 and the top of page 6 of the

‘petition, it is stated that the: plaintiffs “hourly wages be

gan whem he reported to the tower in the morning and.

ended when he reported back to the fower in the evening.”

7 AS was ‘pointed, out by the Court: below this argument was

(

“weakened by the facet that ‘Parker was not) compensated

either for the time. making. out the reports in the tower,

which, if performed, wus cone ededly in the course of em:

ployment” ¢#A, 31M: =o ~ | :

ee , es ‘

.

e .

—

\

>

a

ra oe:

On page 6 of the petition it is claimed that “the canse

of the fall was alleged to be a Tick of light on the stairs.

The LIRR did not dispute that at the time of Mr. Parker's.

‘fall the: elec tric lights, Which were turned om automatic ally

When a photo-electric cel] Bax activated by a lack of.

natural light, had not vet come on. On the other hand.

Mr. Parker did’ not dispute that.those lights did come, on

to short time after his fall’ - What the petitioner fails to

advise this Court was that ‘there was a concrete covering

above the platform which covering was more than 10 feet,

Wide (49:52-21) which’ would | block light) frome coming

‘dow no from the top stairway into the middle stairways

that theye were no lights on the-stairs (50:17) or in the

immediate Vicinity of the stair® (51:21-24): that the de-

fendant’s own witness. Dixon testified that frown the top

of the first landing, he could not see each Step in the middle’

Hight of stairs (199:22-25): that even when ‘Dixon was:

halfsway-up the second" flight, he could only make out the

edge of each step and not the full ,

and that when Dixon arrived at the scene of the accident

after its occurrence, the station lights were not vet on

(202 °5-9) > that direct rays of the sun do not reach lower

sections covered by the roof and supported by pillars (229:

IN-22): and that the defendant's. employee! C rachenfels

testified that the photo-electric cell that turned the lights-

on and off was opposite the station milding, some 15 feet

uway from it (295:2-10): and that absent light from above

the stair, there Would be little, if any. light on the stair

(286 210-20). |” |

On page 7 of the petition . it is noted, that no active

Cirenit Judge requested that a vote be eee on the raik

_ road's, suggestion that a heaving be held: en ‘bane. It ix

" noted, of course, that- even the’ disse niting Judge did- not

make such a request.

N. Lastly, it is to be noted that the New York State cases

how construe the plac es of mer ess and CZTeSs more liberally”

z

(200 225-201 yr.

‘

’

eo’

~ than

opinion,

Kraus vA. W. Mays,

dented,

-SUSTAIN THE DETERMINATION THAT THE

Lie

¢

at

Z .

:

”

: . k be | ry . 4 . *°

i nae aie uae te ’ |

the older New York cases cited ey the dissentiig

See Gaik vo Natiotl Aialines 5 NLD. 2d 1039,

a3 N.Y.8, 2h 08, ne to ee ul Seca 6 NY. 2d T06:

‘Tne, 25 AD. 2a S97, be wNG lo. aippe ail

ae oe (35 here the jecident vectirved on at

municipal parking lot: cf. Roselle T. Robertson, 2 I, ee

“4 580, 5902 Fay ve DeCamp, 257 N.Y. OT EL ‘

; CONCLUSION .

THE DETERMINATION BY. THE: COURT BEL OW THAT

A JURY QUESTION ‘WAS RAISED AS TO WHETHER JHE

STAIR’ INVOLVED WAS A PLACE OF EGRESS. SO “AS. TO

PLAINTIFE

THE COURSE OF EMPLOYMENT AT Tilk

WAS AN

ACCIDENE IS NOT INSCONFLICT Weil THAT ra) a

OF FEE

ANY OYHER COURT OF APPEALS AND THE PETELION

FOR CERTIORARI SHOU LD BE DE ME D. i

@#*

¢

Respectfully submitted,

@

“ABEAILAM S. ROEINSON itd Lawes I. Wor

Afforicys for Respond a

John R.- Parker, Jr. .

Office and P.O. Adelress : :

to SAMPEL Brinn, Esus

3 253° Broadway. *

New York, N.Y. 10007

“Pel” No, 212-297-4821

SAMUEL BRILL, i

* : Trial Counsel,

Liwis . WOE. fy

On the Brief.

ei

TIME -

&