Petition for Writ of Certiorari — Chesapeake & Ohio Railway Co. v. Paynter

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SUPREME COUN. -

FILED

FEB 7 1575

MICHAEL RODAM, 2. CLERK

In The » heater

Supreme Court of the United States

October Term, 1974

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY,

Petitioner,

V.

EARLE G. PAYNTER, JR.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Aupsrey R. BOwLEs, JR.

Auprey R. Bow gs, III

901 Mutual Building

Richmond, Virginia 23219

Counsel for the Petitioner,

The Chesapeake and Ohio

Railway Company

Richmond, Virginia

February 6, 1975

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TABLE OF CONTENTS

Page

NINN INEM cic niasahies bscinbieesmenseatnannsdasenaedincenkidinsoemnninnenansnne 1

MII gc actascpirnivacncsnasnncantnasasuanrsesstoconnisehsahnahdntonaipmunnioncsanenscsssens 2

SONU UTE TII ions ins esas snnesennensenennesonsnnsninenennnannnnnansonns 2

SPTUTDT FV OUUT TOT WOU ancn nascent sensseees 3

I TN io hc cscntencenscnatmenativintnatensnemninsacancninannsencs 3

The Statement Relating To 45 U.S.C. § 56 and Rule 6(a) ...... 4

The Statement Relating To Due Process ...............-.----.-.-.-.00--- 5

Tue REASONS FOR GRANTING THE WRIT .............222.-0--:0-0ceeeeeeeeeees 9

This Actin Was Barred By 45 U.S.C. § 56 Notwithstanding

Dratc Gn) PPMP nnn Ran ans ssns et nnnnnnsemnennenecnscnnansene 10

Certiorari Should Be Granted To Satisfy Due Process ............ 13

IE a cccccicnnnsennsarcicnactniass SEI OE ORC ee ae 16

II 610 aa ncelitanioedin a chennanshnnbsuinasenaibaiiabaadanineiinianh 17

1. United State Code, Title 45, §$ 56 ...........ceeeeeeeeeeeeeeteeeeeeeee 17

2. United States Code, Title 28, Rule 6(a) Federal Rules of

NE I oii inescsccisnctnmnersasenvnercnnsanesnncaiinniaiinsnmnncenesanniend 17

Mice cnt ca sare penannnn nena vsinesnotnrnobennntusnnaionnninmnenisbennennateanie 18

1. Order December 6, 1974, U.S Court of Appeals, Fourth

aetna enee Lovin pA OOO 18

2. Per Curiam Opinion, October 4, 1974, U.S. Court of

Appeals, Fourth Cireuit ................-... tC a ansbaedahiecnnss 19

3. Judgment, December 12, 1973, U.S. District Court,

Western District of Virginia .......... Fests casdicccip ceploeachdankesiohontaers 20

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prt oae> OME AAS iA ake «

Bisteseensx

Page

4. Ruling On Motion To Dismiss, June 15, 1973, U.S. Dis-

trict Court, Western District of Virginia .....0..0000000000.00000.... 21

TABLE OF CITATIONS

Cases

Aboussie v. Aboussie (C.A. 5), 441 F.2d 150, 157 (1971) ........ 12

Bellegarde Custom Kitchens v. Leavitt (Me.), 295 Atl. 2d 909

RUE, Suicieaieceds cid oecoencccqpectnteshccsgeennsaceebsesevaciauaaconieescetcasieanoceetoke 12

Bowling v. Webb Gas Co., Inc of Lebanon (Mo.), 505 S.W.2d

Be NIE Viterennssccsmaccishnbtapaoaeedabeananee 12

Brown v. Porter (Mich.), 163 N.W.2d 709 (1968) ................-....... 12

Burnett v. New York Central R. Co., 380 U.S. 424, 13 L. Ed.2d

ny ee ID ose ecislcc recipes necninnomeneniba 12

Davis v. U.S. F&G Co. (Ga.), 167 S.E.2d 214 (1969) .................. 12

Inman v. Baltimore & O. R. Co., 361 U.S. 138, 4 L. Ed.2d 198,

rR I ID crc ascctneecacseraran, binirieabasonccnbdonieneenininlinenninametts 13

Joint Council, etc. v. Delaware L&W R. Co. (C.C.A. 2), 157

F.2d 417, 420 (1946) ....... sscsieigcecadaaiaenscaaaeshictbaadinaisiieaal 11, 12

Montana v. Kennedy, 366 U.S. 308, 66 L. Ed.2d 313, 81 S.Ct.

Se CED scsniststsviniwecsatinnisnscupncivenscnenisaainoiinaicilometandllinidae 13

Neil v. Biggers, 409 U.S. 188, 84 L. Ed.2d 401, 93 S.Ct. 375

CPD aecicscunsnetitescnsitnlncnisesitidiniestuideemisacnnaiinseciioonalisiactnsaitiaauimnaanniate 13

Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio,

301 U.S. 292, 81 L. Ed. 1093, 57 S. Ct. 724 (1937) ..............-- 13

Perma Life Mufflers v. International Parts, 392 U.S. 134, 20 L.

5 GUE, GR A: TORE CIID ceicnenisnisecsrestesensseicctinnininttrnnianin 13

Romaine v. State Farm Mut. Auto Ins. Co. (Nev.), 485 P.2d

Be CY sas cccstneicstccsticerestasieneonenpnienceninitialnhinlpncenanlanacsosadateaitia 12

ii

Page

Sibbach v. Wilson & Co., 312 U.S. 1, 85 L. Ed. 479, 61 S.Ct. 422

SI in correc eeasocrir os oi escretnndnpicinnasepioeniasesi cian aelocseecseenoratioetia 11

Street v. United States, 133 U.S. 299, 33 L. Ed. 631, 10 S.Ct.

RO nee Rian on ee arene sate pi SRR TA 2c Rd eB OAC TSE 10

Union National Bank v. Lamb, 337 U.S. 38, 98 L. Ed. 1190, 69

Se, GET CIDOB) nnnannincscncecccnsnnnncsnssnsienssnsnresensssecesonmnereecnnssnssoenaasene 10

Washington v. U.S., 357 U.S. 348, 2 L. Ed.2d 1368, 78 S.Ct. 1373

I oa sceciceicrse casas acensntaseomccerionsenbinsbonitivmennssipatrtasesitemaninnitonttti 13

Wilkerson v. McCarthy, 336 U.S. 53, 93 L. Ed. 497, 69 S.Ct.

Sea et ee ne sede Rtas 14

Williams v. Lee, 358 U.S. 217, 3 L. Ed.2d 251, 79 S.Ct. 269

SP ecctnremeetoncees 14

Statutes

28 U.S.C., Federal Rules of Civil Procedure, Rule 6(a) ..3, 4, 11, 17

ZB U.S.C. $ 1254( 1) -.n.c.nenens--nessovecereeceneosensenensersssensenensessesernsnccereencees 2

Be OT GI acini scsewvenentencenetnnasaasininsenanamnenane 3, 4. 17

45 U.S.C., Chap. 1, $§ 1-16 200.......2-.--.---eccecesccensosensoesernesnsnenntnnsneneenees 3

45 U.S.C., Chap. 2, $§ 52-60 ..2......-2.-.-cccececcersensncoeenevensenenscsnceensneseses 3

In The

Supreme Court of the United States

October Term, 1974

POURS ccciccacecvseens

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY,

Petitioner,

v.

EARLE G. PAYNTER, JR..

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner, The Chesapeake and Ohio Railway Com-

pany, respectfully prays that a writ of certiorari issue to

review the judgment and per curiam opinion of the United

States Court of Appeals for the Fourth Circuit entered in

this proceeding on October 24, 1974, in which rehearing

was denied on December 6, 1974, affirming judgment of the

United States District Court for the Western District of

Virginia entered December 13, 1973.

OPINJON BELOW

The two sentence per curiam opinion of the Court of Ap-

peals (R. 3-4), not yet reported, and judgment on the peti-

a ce

Sp atest eres wes CEI RIE

Bates BRR aie

2

tion for rehearing en banc (R. 1), appear in Appendix B

herewith (infra, pp. 18-19). No opinion was rendered by

the District Court for the Western District of Virginia.

The written ruling of the District Court on the railroad’s

motion to dismiss this action because barred by 45 U.S.C.

§ 56 and its final judgment (Joint Appendix with Record,

pp. 43-44, 69), appear in Appendix B herewith (infra, —

pp. 20-23).

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on October 24, 1974. A timely petition

for rehearing en banc pursuant to Rule 35 Federal Rules of

Appellate Procedure was filed on November 6, 1974 and was

denied on December 6, 1974. This petition for certiorari was

filed within 90 days of that date. This Court's jurisdiction

is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether Rule 6(a), Federal Rules of Civil Pro-

cedure, extends the positive limitation for bringing an

FELA action provided by 45 U.S.C. § 56 so that the action

filed in this case on March 22, 1971 alleging an accident on

March 19, 1968 is not barred by 45 U.S.C. § 56.

2. Whether the refusal of the District Court for the

Western District of Virginia to enter final judgment for

the C&O, or at least to grant a new trial, because of the in-

sufficiency of evidence and the multitude of prejudicial error.

and the two sentence per curiam affirmance of the District

Court judgment thereon by the Court of Appeals for the

Fourth Circuit constitute such a departure by the District

Court from the accepted and usual course of judicial pro-

ceedings and the sanctioning of such departure by the Court

3

of Appeals as to deprive the petitioner of due process and

call for the supervision of this Court.

STATUTORY PROVISIONS INVOLVED

1. Title 45, United States Code, § 56.

The statute provides that “no action shall be maintained

under this chapter unless commenced within three years

from the day the cause of action accrued.”

The full text of the statute appears in Appendix A here-

with (infra, p. 17).

2. Title 28, United States Code, Federal Rules of Civil

Procedure, Rule 6(a).

The rule provides that “In computing any period of time

prescribed or allowed by these rules, by the local rules of

any district court, by order of court, or by any applicable

statute, the day of the act, event, or default from which

the designated period of time begins to run shall not be in-

cluded. The last day of the period so computed shall be in-

cluded, unless it is a Saturday, a Sunday, or a legal holiday.

in which event the period runs until the next day which is

not a Saturday, a Sunday, or a legal holiday.”

The full text of the rule appears in Appendix A here-

with (infra, p17).

STATEMENT OF THE CASE

This action was brought March 22, 1971 under 45 U.S.C.,

Chap. 2. Sect. 51-60 and 45 U.S.C., Chap. 1. Sects. 1-16,

by a retired yard conductor of the petitioner claiming a

low back strain when he ran and threw a switch in the Smith

Creek Yard of the Chesapeake and Ohio Railroad at Clifton

Forge, Virginia, about 1:00 p.m. during the morning work

shift of March 19, 1968.

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The district court refused not only final judgment for

the C&O but also a new trial to correct the multitude of

prejudicial errors appearing from the succeeding statement

of the case. The Court of Appeals affirmed the district

court judgment by the following per curiam opinion, the re-

hearing of which it also denied.

“On consideration of the record, briefs and oral

argument, we find no reversible error. We find sufficient

evidence to take the case to the jury.” (Appendix B,

infra, p 19)

The transcript of the record in this case contains a printed

Joint Appendix that includes all parts of the record in the

District Court for the Western District of Virginia desig-

nated by both parties on the appeal from the judgment of

that court to the Court of Appeals for the Fourth Circuit

duly certified as a part of the record below pursuant to Rule

21(2) of this Court.

The Statement of the Case will be made in two parts be-

cause of the two Questions Presented, each part relating

to that particular Question Presented. References to the

printed Joint Appendix record will be made for convenience

by the letters “J.A.” and to the remainder of the certified

record by the letter “R.” The parties will be designated as

“C&O” and “Paynter.”

The Statement Relating To 45 U.S.C. § 56 And Rule 6(a)

C&O filed its motion to dismiss the complaint (J.A. 6)

and the amended complaint (j.A. 37) on the ground that

the action was brought more than three years after the

cause of action accrued. The complaints alleged that, though

he was actually injured on March 19, 1968, Paytner did not

know until March 22, 1968, or thereafter, that he had been

so injured on March 19, 1968 (J.A. 11, 14).

5

The District Court filed a written ruling on the motion to

dismiss deciding that the action was brought within the

three year period because of Rule 6(a), FRCP (J.A. 43-44,

infra, pp. 21-23)."

The question whether Rule 6(a) extended the limitation

of 45 U.S.C. $56 was argued to the Court of Appeals in

briefs, orally and in the Petition to Rehear en banc* as a

matter of national importance affecting due process in

FELA cases.

The Statement Relating To Due Process

Paynter was the yard conductor of a crew kicking cars

through the switch involved to assemble train No. 95 (J.A.

156-159). As conductor it was Paynter’s duty to see that

the switch was properly aligned before he permitted any car

to be set in motion (J.A. 189-191, 86). Failing in that duty,

he .uddenly saw that a particular car had begun to roll when

the switch was not properly aligned and he consequently

ran some 50 feet across the tracks and grabbed the switch

to throw it hurriedly in order to avoid a wreck. When so

doing he felt pain in his back (J..A. 190-191. 192-193).

Counsel for Paynter conceded, and the District Court cor-

rectly charged, that the condition of the switch at the time

the alleged accident occurred was the issue in the case (J.A.

217, 75). The first witness called by Paynter to testify

concerning that issue did not know the condition of the

1 That ruling also indicated that it could be said that the cause of

action did not accrue until March 20, 1968, when Paynter originally

claimed that he first became aware of his injury (J.A. 45). At trial

after that ruling, however, Paynter repudiated that earlier contention

and testified that he did in fact know of his alleged injury on the day

it was claimed that it occurred and that he specifically so told his crew

members of it on that day (J.A. 162-163, 121).

2 See paragraph 2, page 2 of that petition.

6

switch at that time because he did not recall whether he had

worked on March 19, 1968. On that account he was asked

to state its condition before March 19, 1968 (J.A. 74). On

objection by C&O that the testimony should be restricted

to the condition of the switch on March 19, 1968 (J.A. 74)

the District Court told the jury:

“T'll overule the objection. I think it might be bene-

ficiai iv the jury in determining what the condition of

the switch was at the time that the alleged accident

occurred,

“Ladies and Gentlemen of the jury, the question you

will have to decide is the condition of the switch at the

time that the alleged accident occurred. Now, the condi-

tion of it before or afterwards might be beneficial to

you in determining what the condition was at the time

the alleged accident occurred; and for that reason, I’m

gonna overrule the objection and let him answer.”

(J.A.75).

Paynter offered the testimony of six fellow employees in

addition to himself concerning the concededly simple issue

in the case, viz., the condition of the switch on March 19,

1968. Not one of them was able to say what the condition

of the switch was on that day of the alleged accident (J.A.

74, 78, 86, 122, 127, 128-129, 132, 137. 142, 148. 151. 152).

Those witnesses, however, testified uniformly that when

the switch was swept and cleaned it “worked as it should,”

operated “‘very 70d,” “gives safety to the operation.” could

be worked “without strain,’ and operated “fine” (J.A.

78-79, 94, 122, 128, 142, 149, 152). Those same men testi-

fied that when not swepi and cleaned the switch did not

“work as it should,” was “pretty tight,”’ could not be “op-

erated without strain or undue exertion,” was “rather hard

to throw,” and was “ hard to throw” (J.A. 79, 94, 122, 128,

142, 149).

7

The true issue presented was, therefore, whether the

switch was swept and cleaned on March 19, 1968, the day

of the accident.

Paynter, himself, testified without contradiction that a

railroad maintenance man cleaned the switches “every morn-

ing” (J.A. 161). He also offered uncontradicted and con-

firming proof by others that such regular morning sweep-

ing and cleaning was a matter of “daily routine” (J.A. 147,

91, 133, 152). Paynter, himself, and his crew used the

switch the morning of the alleged accident and it “worked

all right then” (J.A. 159, 184-185).

Notwithstanding that uncontradicted evidence, the district

court admitted testimony over the continued objection of

C&O (J.A. 74-75, 77, 87-88, 90-91, 216) that for 22 years

compiaints had been made that the switches were not kept

clean and were getting hard to throw, that it had been a

tough switch to throw for 22 years (J. A. 79, 87, 93), that

there was no maintenance of the switch on the night shitt,

that general complaints had been made about the switches

for 30 years and that the switch was in improper working

order on that account at all times on the night shift during

that period (J.A. 127-129, 137). that during 18 years it had

been necessary to strain in order to use the switch when

not cleaned, that the Saturday evening before the accident

it was in “foul shape” and that complaints were made dur-

ing that period without any result ( J.A. 147-149, 150-151).

The district court also refused to strike testimony by a

witness who worked an average of only three times a week

that the switch in question was not cleaned daily (J.A.

87-89).

The uncontradicted testimony was that sand in the

switches was what made them “hard to throw” irrespective

of type, whether ball-type or latch type, that there was no

difference in the maintenance of each type. and that the

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only difference in the two types of switch was that the ball

type was closer to the ground requiring the operator to lean

over further (J.A. 76, 78, 83, 84, 99, 100).

The district court refused to delete or to strike out the

admittedly false testimony by deposition that the doctors who

mistreated Paynter and aggravated his injury to the extent

that it would not have been as serious and perhaps not have

required surgery at all with proper treatment were C&O

doctors at C&O hospitals and restricted any correction of

that conceded inaccuracy to rebuttal proof that the treating

doctors and hospitals were not C&O doctors and C&O hos-

pitals. The admitted mistatement of fact remained as aii

issue before the jury as well as the prejudicial argument

thereon by counsel (J.A. 238-239, 101-102, 106-108).

The C&O motion for directed verdict on the ground that

Paynter’s negligence was the sole proximate cause of the

alleged injury was overruled (J.A. 194, 216, 217).

Argument to the jury by Paynter’s counsel, based on the

evidence objected to, included the following: that the Con-

gress of the United States had declared to the citizens of

the United States by adopting FELA that the Congress

does not care what a railroad employee does wrong and that,

when you sit on juries, “We don’t care. He is entitled to

recover” (J.A. 217); that for 35 years the C&O employees

had continuously complained that the switch was not suffi-

ciently cleaned and nothing had been done about it; that the

switch had always been bad; that this was an accident wait-

ing for 35 years to happen; that the railroad did not really

care about its employees (J.A. 217-223); and, finally in

closing, that the C&O had saved $600,000 over a 20 year

period at the expense of its employees by not hiring enough

men tu keep the switches clean, which half million dollars

was enough to give Paynter an adequate verdict (J.A. 224).

9

In its charge the district court required the jury to render

special verdicts by answering six questions, notwithstanding

the objection of both parties (J.A. 235, 236). Questions

one through four called for yes or no findings as to C&O's

negligence and, if yes, whether it contributed to the injury;

as to Paynter’s negligence and, if yes, whether it contributed

to the injury. Question No. 5 inquired as to the percentage

of Paynter’s contributory negligence, if any was found.

Question No. 6 demanded a finding of “the total amount of

damages sustained by the plaintiff as a result of his injury”

regardless of whether there was any finding whatever of

liability, to which C&O expressly objected on that specific

ground (J.A. 237-238, 06).

The jury found that Paynter was 20 percent the cause of

his own injury and assessed t*e total damage at $125,540

on which judgment for $100,432 was entered (J.A. 66).

The district court declined the C&O motion to set aside

the judgment and either enter final judgment for the C&O

or grant a new trial for the errors assigned (J.A. 67-09).

The Court of Appeals affirmed (R. 2, 3-4. Appendix B to

this Petition, infra, pp. 18-19).

THE REASONS FOR GRANTING THE WRIT

It is nationally important to settle the conflict whether

Rule 6(a), Federal Rules of Civil Procedure, extends the

statutory limitation for bringing an FELA action prescribed

by 45 U.S.C. § 56 as to which Courts ef Appeal and State

Courts are in conflict and which this Court has not speci-

fically determined.

Ii is also nationally important to decide whether the Con-

gress intended to abolish due process when it enacted

FELA. We most respectfully submit that the Congress did

not intend by FELA to abolish the absolute requirement for

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proof of negligence as a cause of injury, even though con-

tributing only in the slightest degree, by relevant, material

and admissible evidence as a prerequisite to recovery.

The two questions presented will be separately argued.

This Action Was Barred By 45 U.S.C. § 56

Notwithstanding Rule 6(a) FRCP

The injury claimed in this case occurred on March 19,

1968. The FELA action was brought on March 22, 1971,

niore than three years thereafter (J.A. 3, 11, 43-44). The

trial court concluded that Rule 6(a) FRCP extended that

time because the last day of the three year period fell on a

Saturday and the action was commenced on the following

Monday (J.A. 44; Appendix B to this Petition, infra, pp.

21-23). The Court of Appeals for the Fourth Circuit found

“no reversible error” in that ruling (Appendix B to this

Petition, infra, pp. 18-19).

This Court had before it in Union National Bank vy.

Lamb, 337 U.S. 38, 93 L. Ed. 1190. 69 §. Ct. 911 (1949)

the issue whether a petition for certiorari from the Supreme

Court of Missouri docketed on Monday, December 13, 1948,

was in time when the ninetieth day limit fixed by the revi-

sion of 28 U.S.C. § 2101, effective September 1, 1948, was

a Sunday. Relying on the theory that Sunday was a dics non

and on its decision in Street v. United States, 133 U.S. 299,

33 L. Ed. 631, 10 S. Ct. 309 (1890), the petition was ac-

cepted as timely

The opinion in Lamb recognized a definite conflict of de-

cision among the Courts of Appeal regarding that effect of

Sunday :

“There is a contrariety of views whether an act

which by statute is required to be done within a stated

period may be done a day later when the last day of the

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period fall on Sunday.” (337 U.S. at 40; 93 L. Ed. at

1194, 69 S. Ct. at 912).

Of the seven decisions of Courts of Appeals cited in the

footnote supporting that recognition of such conflict, five

had then adop-ed a view contrary to the final conclusion of

this Court in that case regarding the applicable effect of

Sunday when it happens to be the last day of a statutory

limitation.

The opinion in Lamb noted that Rule 6(a), FRCP gave

expression to “considerations of liberality and leniency”

similar to the policy of its decision in Street v. United States

which the Court found applicable to the particular issue ther

before it, namely, the timelines of a petition for certiorari

pursuant to 28 U.S.C. § 2101, inasmuch as that statute ex-

pressed no contrary policy.

The basis for the contrary view among the ‘‘contrariety

of views” then existing and now continuing is well stated

in Joint Council, etc. v. Delaware, L&W R. Co. (CCA 2),

157 F. 2d 417, 420 (1946) as follows:

“Rule 6(a) is a rule of procedure relating to acts

done or proceedings had after the commencement of

action and to any statutes expressly applicable to such

proceedings. It is not intended to modify and change

existing statutes of limitation.”

This Court expressly decided in Sibbach v. Wilson & Co.,

312 U-S. 1, 10, 85 L. Ed. 479, 483, 61 S. Ct. 422, 423-425

(1940) that the Act of June 19, 1934, authorizing promul-

gation of the Federal Rules of Civil Procedure “was pur-

posely restricted in its operation to matters of pleading and

court practice and procedure,” by expressly providing that

“caid rules shall neither abridge, enlarge, nor modify the

substantive rights of any litigate.” In deciding also that

Rule 35, FRCP, relating to physical examination, was a

Reap AN SOR

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rule of procedure rather than one of substantive law, the test

was said to be “whether a rule really regulates procedure”

(312 U.S. at 14, 85 L. Ed. at 485, 61 S. Ct. at 426).°

In Burnett v. New York Central R. Co., 380 U.S. 424,

13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965), this Court under-

took to examine the fundamental purposes underlying the

objectives sought to be attained by statutes of repose and

which render them preeminent rather than subject to being

extended, waived or tolled. Asserting that the basic inquiry

always is the congressional purpose and that mere classifi-

cations as “substantative” or “procedural” are not alone

enough to determine whether a particular limitation may or

may not be extended, the opinion appears to establish that

the essential distinction, decisive “in the interests of justice”

as to which objective outweighs the other, is whether the

litigant has “slept on his rights” or has been prevented from

asserting them. (380 U.S. at 428-429, 13 L. Ed. 2d at 946,

85 S. Ct. at 1055).

The general conflict of opinion, in varying aspects of the

issue, continues in both state and federal courts.*

The specific question at bar is whether Rule 6(a), FRCP

applies to 45 U.S.C. $56. The answer is not so definitely

settled by this Court that no conflict remains. The conuclu-

sion of the Second Circuit in Joint Council, etc. v. Delaware,

* Justice Frankfurter, dissenting with whom Justices Black, Douglas

and Murphy agreed. was of the following definite opinion :

“Plainly the Rules are not acts of Congress and can not be

treated as such. * * * , to draw any inference of tacit approval

from non-action by Congress is to appeal to unreality.” (312

U.S. at 18, 85 L.Ed. at 487, 61 S.Ct. at 428)

4 Bowling v. Webb Gas Co., Inc. of Lebanon (Mo.), 505 S.W.2d

39 (1974) ; Bellegarde Custom Kitchens v. Leavitt (Me.), 295 Atl. 2d

909 (1972) ; Davis v. U.S. F&G Co. (Ga.), 1607 S.F..2d 214 (1969) ;

Brown v. Porter (Mich.), 163 N.W.2d 709 (1968): Romaine v.

State Farm Mut. Auto. Ins. Co. (Nev.), 485 P.2d 102 (1971);

Aboussie v. Aboussie (C.A. 5), 441 F.2d 150, 157 (1971).

13

L&W R. Co., supra, that the rule does not so apply is the

more 1 easonable and logical in the opinion of this petitioner.

It is, however, important that the conflict be finally resolved,

regardless of which decision the Court may make. The peti-

tion should therefore be grarted, we respectfully submit.

Certiorari Should Be Granted To Satisfy Due Process

It is important to maintaining confidence in the judicial

system that due process be meticulously observed. This Court

has persisted in granting certiorari for that purpose, par-

ticularly to insure that a new trial is granted when it is

probable that the prior one did not offer due process: in

Neil v. Biggers, 409 U.S. 188, 84 L. Ed. 2d 401, 93 S. Ct.

375 (1972), to determine “whether the identification pro-

cedure violated due process” because “unnecessarily sug-

gestive and conducive to irreparable mistaken identifica-

tion”; in Jnuman v. Baltimore & O. R. Co., 361 US. 138,

4 L. Ed. 2d 198, 89 S. Ct. 242 (1959), to ascertain whether

the evidence was sufficient to establish “that negligence on

the part of the railroad could have played” a part in pe-

tioner’s injury; in Ohio Bell Telephone Co. vy. Public Utili-

ties Commission of Ohio, 301 U.S. 292, 81 L. Ed. 1093. 57

S. Ct. 724 (1937), to discover whether due process was

violated “when rates previously collected were ordered to

be refunded upon the strength of evidential facts not spread

upon the record”; in Montana v. Kennedy, 366 U.S. 308, 66

L. Ed. 2d 313, 81 S. Ct. 1336 (1961), because of the harsh-

ness of decision when it was “readily apparent” that a Rule

of the FRCP was not applicable; in Perma Life Mufflers v.

International Parts, 392 U.S. 134, 20 L. Ed. 2d 982. 88

S. Ct. 1981 (1968), because the lower court rulings seemed

to threaten the effectiveness of private action to enforce

anti-trust procedure; in Washington v. U.S., 357 U.S. 348,

area ae he a i ai It ERE Pe

eh

14

2 L. Ed. 2d 1368, 78 S. Ct. 1373 (1958) to determine the

sufficiency of evidence; in Williams v. Lee, 358 U.S. 217;

3 L. Ed. 2d 251, 79 S. Ct. 269 (1959), on account of doubt

as to state court jurisdiction; in Wilkerson v. McCarthy,

336 U.S. 53, 93 L. Ed. 497, 69 S. Ct. 413 (1949), to de-

termine the sufficiency of evidence.

The insufficiency and inadmissibility of evidence in this

trial constitute such departure from the accepted and usual

course of judicial proceedings as to preclude due process.

The failure to correct such error on appeal, at the least by

ordering a new trial under proper conditions, calls for ap-

propriate supervision by this Court.

The sole issue in this case was conceded to be the condi-

tion of the switch at the time of the accident on March 19,

1968 (J.A. 75, 217). The sole duty of the C&O was to ex-

ercise ordinary care to have the switch in reasonably safe

condition at that time. The testimony offered by Paynter

established without dispute that the condition of the switch

at any moment of time depended altogether on whether it

was cleaned and swept and none of the six fellow-workers

called by Paynter knew its condition in that regard at the

time of the accident (J.A. 74, 78-79, 86, 94, 122, 127-129,

132, 137, 142, 148-149, 151-152). It is thus obvious that a

switch whose condition, good or bad, is dependent upon

whether it is swept or unswept clean of sand is not a facility

of such continuing stable condition that testimony concern-

ing its condition before and after an accident is admissible

without concomitant reference to that essential factor ad-

mittedly determinative of its status at the particular time.

The uncontradicted proof offered by Paynter was that it

was “daily routine” for the switch involved to be swept clean

every morning (J.A. 161, 147, 91, 133, 152) and that when

swept its condition was proper (J.A. 78-79, 94, 122, 128,

142, 149, 152). Paynter, himself, was unable to say whether

i5

it had or had not been swept the morning of his accident, but

he did say that he and his crew had used it that morning

(J.A. 159) and that “it worked all right then” (J.A. 184-

185). The presence of sand was entirely an assumption by

Paynter rather than an observed fact (J.A. 100). There

was no evidence whatever from actual observation that there

was sand in the switch at the time of the alleged accident.

The repeated inadmissible testimony that the switches on

the yard had not been kept clean and had been complained

of without any result for 30 years or more was obviously

rendered especiall:: prejudicial by the district court’s spe-

cific direction to the jury, upon objection, that “the condi-

tion of it (the switch) before or afterwards might be bene-

ficial to you in determining what the condition was at the

time the alleged accident occurred” (J.A. 75, 79, 87, 63,

127-129, 137, 147-149, 150).

The district court refused to strike out, but left as a preju-

dicial issue of fact for the jury to consider, the admittedly

false testimony that the doctors claimed to have mistreated

Paynter and thereby increased the severity and duration of

his injury were C&O doctors in C&O hospitals for whom

the C&O was responsible (J.A. 238, 184, 101-108).

The Court also insisted upon special verdicts, objected to

by both parties, and refused over specific objection by C&O,

to condition question No. 6, the fixing of a dollar value on

the total injury claimed to have been suffered by Paynter,

upon first finding that negligence of the C&O was a cause of

the injury (J.A. 237-238, 235-236, 66).

The argument of Paynter’s counsel, outlined above in the

related Statement of the Case, was highly inflammatory and

beyond the scope of relevant, material and admissible facts.

that deliberately appealed to conjecture, surmise and sym-

pathy as opposed to evidence to which the jury’s considera-

tion should have been restricted. That persuasive effort

.

Braces,

16

was supported by a heavily weighted charge which empha-

sized the inferences permitted to be drawn improperly from

evidence “produced in this Courtroom” because that evi-

dence included the inadmissible testimony concerning the

condition of the switch for 30 years or more and from

circumstantial evidence justified by the jury's “own experi-

ences” (J.A. 53, 54, 55).

The failure to recognize the insufficiency of the evidence

in this case, and particularly the failure in any event to grant

a new trial in order to ascertain a fair result without such

accumulation of prejudicial errors, clearly violated due

process and warrant the granting of this petition.

CONCLUSION

For the reasons hereinabove stated, this petition for cer-

tiorari should be granted.

Respect fully submitted,

Aupsrey R. Bow Es, JR.

Auprey R. Bow zs, III

901 Mutual Building

Richmond, Virginia 23219

Counsel fr the Petitioner,

The Chesapeake and Ohio

Railway Company

Richmond, Virginia

February 6, 1975

APPENDIX A

1. United States Code, Title 45, § 50:

“No action shall be maintained under this chapter unless

commenced within three years from the day the cause of

action accrued.

Under this chapter an action may be brought in a district

court of the United States, in the district of the residence of

the defendant, or in which the cause of action arose, or in’

which the defendant shall be doing business at the time of

commencing such action. The jurisdiction of the courts of

the United States under this chapter shall be concurrent (

with that of the courts of the several States.” :

2. United States Code, Title 28, Rule 6(a), Federal Rules

of Civil Procedure:

“In computing any period of time prescribed or allowed

by these rules, by the local rules of any district court. by

order of court, or by any applicable statute. the day of the

act, event, or default from which the designated period of

time begins to run shall not be included. The last day of the

period so computed shall be included, unless it is a Saturday,

a Sunday, or a legal holiday, in which event the period runs

until the end of the next day which is not a Saturday. a

Sunday, or a legal holiday. When the period of time pre-

scribed or allowed is less than 7 days, intermediate Satur-

days, Sundays, and legal holidays shall be excluded in the

computation, As used in this rule and in Rule 77(c), ‘legal

holiday’ includes New Year’s Day, Washington's Birthday,

Memorial Day, Independence Day. Labor Day, Columbus

Day, Veterans Day, Thanksgiving Day. Christmas Day,

and any other day appointed as a holiday by the President

or the Congress of the United States. or by the state in

which the district court is held.”

18

APPENDIX B

1. The order ot the Fourth Circuit Court of Appeals on the

petition to rehear en banc:

United States Court of Appeals

For The Fourth Circuit

No. 74-1210

Earl G. Paynter, Jr.,

Appellee,

Vs.

The Chesapeake and Ohio Railway Company,

Appellant.

Filed Dec. 6, 1974

William K. Slate. II

Clerk

Order

Upon consideration of the petition for rehearing, with its

suggestion of a rehearing en banc, and with the concurrence

of Judge Bryan and Judge Craven, no member of the Court

having requested a poll of the Court,

IT IS ORDERED that the petition for rehearing be, and

it is hereby, denied.

/s/ Clement F. Haynsworth, Jr.

Chief Judge, Fourth Circuit

A True Copy, Teste:

William K. Slate, II, Clerk

By /s/ Faye Chlome

Deputy Clerk

19

2. The Per Curiam opinion of the Fourth Circuit Court

of Appeals:

United States Court Of Appeals

For The Fourth Circuit

No. 74-1210

Earl G. Paynter, Jr.,

Appellee,

versus

The Chesapeake and Ohio Railway Company,

Appellant.

Appeal from the United States District Court for the

Western District of Virginia, at Charlottesville.

James C. Turk, District Judge

Argued October 4, 1974 Decided October 24, 1974

Before Haynsworth, Chief Judge, Bryan, Senior Circuit

Judge, and Craven, Circuit Judge.

Aubrey R. Bowles, Jr., (Aubrey R_ Bowles, ITI, on brief )

for Appellant; Raymond H. Strople (Willard J. Moody

and Bernard Miller on brief) for Appellee.

Per Curiam:

On consideration of the record, briefs and oral argument,

we find no reversible error. We find sufficient evidence to

take the case to the jury.

Affirmed.

20

3. The final judgment of the United States District Court

for the Western District of Virginia (J.A. 69):

In The United States District Court

For The Western District Of Virginia

Charlottesville Division

Civil Action No. 71-C-6-C

Earl G. Paynter, Jr.,

v.

The Chesapeake and Ohio Railway Company,

Order

The defendant in this case, by counsel, has filed a motion

pursuant to Rules 50 & 59 asking the court to set aside the

verdict of the jury in this case and to enter final judgment

in favor of the defendant or in the alternative. to grant the

defendant a new trial.

21

The court having considered said motion, doth overrule

the same, the effect of which is to re-affirm the judgment

order heretofore entered by the court on November 28,

1973.

Enter: December 12, 1973

James C. Turk

Chief U.S. District Judge

Clerk’s Office, U.S. Dist. Court

at Charlottesville, Va.

Filed December 13, 1973

Joyce F. Witt, Clerk

By: Virginia P. Harris

Deputy Clerk

A True Copy, Teste:

Joyce F. Witt, Clerk

By: Virginia P. Harris

Deputy Clerk

4. The written ruling of the United States District Court

for the Western District of Virginia of the motion to

dismiss (J.A. 43-46) :

Clerk’s Office U.S. Dist. Court

at Charlottesville, Va.

Filed June 15, 1973

Joyce F. Witt, Clerk

By: /s/ Virginia P. Harris

Deputy Clerk

NON

PLE hey

Basen eeene eames

22

In The United States District Court

For The Western District Of Virginia

Charlottesville Division

Civil Action Number 71-C-6-C

Ruling On Motion To Dismiss

Earle G. Paynter,

Plaintiff,

vs.

Chesapeake and Ohio Railway,

Defendant.

* * x

Ruling On Motion To Dismiss

Plaintiff was injured on March 19, 1968. Plaintiff filed

his suit on March 22, 1971. The time limit allowed under

FELA is three years as required by 45 U.S.C.A. § 56.

Rule 6 of the Federal Rules of Civil Procedure provides as

follows:

In computing any period of time prescribed or allowed

by these rules, by local rules of any district court, by

order of court, or by any applicable statute, the day of

the act, event, or default from which the designated

period of time begins to run shall not be counted. The

last day of the period so computed shall be included,

uniess it is a Saturday, a Sunday, or a legal holiday, in

which event the period runs until the end of the next

day, which is not a Saturday, a Sunday, or a legal

holiday. (Emphasis added )

Under Rule 6, the designated period of time did not begin

to run until the date following the accident, March 20, 1968.

23

Three years from that date, March 20, 1971 fell ona Satur-

day, and the following day was Sunday. Therefore, the

court finds that plaintiff’s suit, filed on Monday, March 22,

1971, falls within the statutory three-year period.

It has been held that Rule 6 of the Federal Rules of Civil

Procedure is applicable to pleadings and statutes of limita-

tions and that in computing time the first day should be

excluded and the last day included. Miller v. Daybrook-

Ottawa Corp., 291 F. Supp. 896 (1968).

In Rutledge v. Sinclair Refining Co., 13 F.R.D. 477

(S.D. N.Y. 1953), the court said at 478 that “the basic

issue is whether Rule 6(a) is applicable to a Federal Statuie

of limitation when the last day of the period prescribed by

it falls on a Sunday. (Rule 6 at that tinie did not include

Saturdays). The cozrt specifically held that the statute of

limitations under FELA was controlled by the provisions of

Rule 6 of the Federal Rules of Civil Procedure.

* * *

Accordingly, for the above-stated reasons. it is hereby

ordered and adjudged that defendant’s motion to dismiss on

the ground of statute of limitations is overruled and denied.

* * ¢

Enter:

Ted Dalton

U.S. Chief District Judge

June 12, 1973

A True Copy, Teste:

Joyce F. Witt, Clerk

By: /s/ Virginia P. Harris

Deputy Clerk

bah

PL PRPS TNR RENT GTR