# Brief for the Respondents in Opposition — Long Island Railroad v. Parker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0085%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1970 - **Citation:** 400 U.S. 829 ## Text 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 * (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 - & --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0085%3A2. Public record. Not legal advice.