Petition for Writ of Certiorari — St. L., B. & M. Ry. v. United States

Supreme Court brief1925

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Text

—————— Bs DS dia he eR NA IES PAL LES ABP ER at EAB ht TE Sle etter abt

INDEX

Petition for Writ of Certiorari ~--.--_____-

AUTHORITIES CITED.

Baltimore & O. R. Co. vs. Darr, 204 Fed.

TEE acinacenks. ashame debe eskaii celal eonecaeaetees

C., R. I. & P. Ry. vs. Cronin, 74 Okla. 38,

sarin cig hdaceeninia aliases

C., R. I. & P. vs. Ward, 252 U. S. 18, 64

a See or ee

Ind. Ace. Comm. vs. Davis, 259 U. 8S. 182,

Aes SE atten ecinbedhiinnmanien

Pederson vs. D., L. & W. Ry. 229 U. S.

Se See SE SE an dnteknaninenn

Seaboard Air Line R. Co. vs. Hortui, 233

oe ee ee ee eee

SD ark atid leh dniseain ab iahahaida

Brief and Argument—

The undisputed facts shown by the ree-

ord compel the legal conclusion that both

petitioner and respondent were engaged

in interstate commerce at the time of said

accident, and this case is governed ex-

elusively by the Federal Employer’s Lia-

bility Act. The Supreme Court of the

State of Oklahoma erred in holding that

the case was not governed exclusively

WEEE bth cen biosnnenkbinacmacann

Some cna ge daha eed Eee at Te

AUTHORITIES CITED,

Page

Boldt vs. Pa. R. R. Co., 245 U. 8. 441, 62

Boh, GIB cnacacnnnnccnccncsoscecase

C., R. I. & P. Ry. vs. Define, 239 U. S. 52,

3 a eee

Edw. Pryor vs. Williams, 254 U. 8. 43, 65

By GR TED cncceccanseccanasssscnnese

Erie R. R. Co. vs. People of State of New

York, 223 U. S. 671, 58 L. ed. 1149 ----

I. A. Comm. vs. Davis, 259 U. 8. 182, 66

a ee

Kinzel vs. C. M. & St. P. Ry., 250 U.S. 130,

oe = see

Minn. & St. L. Ry. vs. Winters, 242 U.S.

962, 61 L. ed. 356 ......:....-.-------

Mondou vs. N. Y., N. H. & H. R. Co., 223

U. &. 1, 56 L. ed. 327 ........-....---

N. C. Ry. vs. Zachary, 232 U. S. 248, 58

Be, GE, GUE ecccecdcnctiacesacnsccons

N. O. & N. Ry. vs. Searlet, 249 U. 8. 528,

eS EEE

N. Y. C. & H. Ry. vs. Carr, 238 U. S. 260,

OB Ti, OB. 2908 cccnnwesdseeccctonssss

N. & W. Ry. vs. Earnest, 229 U. S. 114,

57 L. ed. 1096, Ann. Cas. 1914¢ 172_---

Pederson vs. D., L. & W. Ry., 229 U.S. 146,

eS | ee

Roberts on Injuries to Interstate KEm-

ployes on Railroads, p. 135, See, 65. .--

Seaboard Air Line Ry. vs. Horton, 223 U.

§. 492, 88 L. ed. 1062 ........-....-.-.--

Second Employer’s Liability Cases, 223

U. S. 1, 56 L. ed. 327, 38 L. R. A. (N.

4 eT Siiptgenshieisiine

If.

iii

Page

Shanks vs. D., L. & W. Ry., 239 U. S. 556,

fp 8 fF eee eee

St. L. & S. F. Ry. vs. Seale, 229 U. S. 156,

OF i Oly BE ademnnantusticaeccunesn

In giving to the jury paragraph No. 13

of the court’s instructions to the jury,

the trial court deprived petitioner of its

right guaranteed under the Federal Em-

ployer’s Liability Act, to have the jury

instructed and respondent required to

prove that the defect, if one existed, in

the instrumentality furnished the om-

ploye must have oceurred or have been

permitted to exist by reason of some

negligence on the part of the company,

its officers or employes, before recovery

could be had on that account, and the

Supreme Court of the State of Okla-

homa erred in holding that the trial court

had correctly instructed the jury regard.

ing the alleged negligence of the com-

pany and the duties which said company

owed respondent ......--------

Avutnorities (rrep.

Alexander vs, Pa. Water Co, (Pa.), 50 Atl,

WE tude. sdieanannedbeindeinadddtccc:

Atlantic, ete., R. Co. vs. Revnolds, 117 Ga.

se oe ee

Boldt vs. Pa. R. R. Co., 245 U. S. 441, 62

TE senisAeinmadicaiibenincde

Export Cooperage Co. vs Ramsey (Ark.),

See Ue Wee dekashanscaenet ete

Page

Galveston M. & S. A. Ry. Co. vs. Buch

Kansas City & P. R. Co. vs. Ryan, 52 Kan.

Louisville & N. R. Co. vs. Hinder (Kv.),

i) ® 2 7

Marian J. Looney vs. Metropolitan R. R.

Co., 200 U. S. 480, 50 L. ed. 564 .....-

Martin vs. Highland Park Mfg. Co., 128

N. C. 264, 38 S. E. 876, 83 Am. St. Rep.

I ceca © Selle inde chcnlin head nomaeitatiaedutiahehintats

Moran vs. Gen. Fire Ex. Co., 259 Pac. 168,

FE eee

Mulligan vs. Crimmins, 75 Hun. 587, 27

2, renee

New Orleans & Northeastern R. R. Co.

and U. S. F. & G. Co. vs. Harris, Adm.,

. ee Fe’. ee

Nitroglycerine Case (Parrott vs. Wells),

15 Wall. 524, 537, 21 L. ed. 206, 211...

Noves vs. Smith, 28 Vt. 59, 65 Am. Dee.

Ea a

Nutt. vs. Sonth. Pac. Rv. Co (Ore), 45

fo 3s a on

Patton vs. Texas & P. R. Co.. 179 U.S.

658, 663, 45 L. ed. 361, 364, 21 Sup. Ct.

Roughan vs. Boston & Lockhart Block Co.,

Ce, Ga Gb GEE aceccancansncnce

Seaboard Air Line Rv. vs. Horton, 933 U.

RE EE

SSX, aE

Seaboard Air Line R. Co. vs. Horton, 233

U. S. 492, 501, 502, 58 TT. ed. 1062,

I I a a a Sie a a

pup ee

Page

Skidmore vs. West Va. & P. R. Co., 41 W.

ee ee ee 45

Smith vs. New York Cent. & H. R. R.

a 45

South vs. Seattle, P. A. & W. Ry. Co., 168

ES eae ae 45

Texas P. R. Co vs. Barrett, 166 U. S. 617,

EE Re ae 44

Thompson on Negligence, p. 1053 ________ 45

ap Gye, page 1008 ... ................... 45

ITT. The trial court in giving to the jury par-

agraph No. 11 of the court’s instructions

to the jury. deprived petitioner of the

right enaranteed it under the Federal

Employers’ Lisbilitw Act to have the jury

consider petitioner's defense of assumed

risk, if the risks were created by peti-

tioner’s negligence __________....______ 51

Ty >it 53

Seaboard Air Line R. Co. vs. Horton, 233

U. 8. 492,58 Led. 1062_.. 52

NUMBER 1051

In the Supreme Court of the

United States

OCTOBER TERM, 1924

ST. LOUIS-SAN FRANCISCO RAILWAY COM-

PANY, A CORPORATION, PETITIONER,

vs.

HARRY F. STITT, RESPONDENT.

PETITION FOR WRIT OF CERTIORARL

(Page references in printed petition and brief refer to pages

of printed record.)

To the Honorable, the Supreme Court of the United

States:

The St. Lonis-San Francisco Railway Com-

pany, in support of this, its petition for writ of cer-

tiorari to be directed to the Supreme Court of Okla-

homa, to review a decree of judgment rendered on

the 18th day of September, 1923, and order denying

petition for rehearing by said court on the 24th

day of February, 1925, which said petition for re-

hearing had heen filed according to the rules of and

=_—

with the permission of said court, and which said

decree and order affirmed a judgment of the Dis-

trict Court in and for Pawnee County, State of

Oklahoma, entered on the 29th day of November,

1921, in favor of respondent, Harry F. Stitt, and

against this petitioner, in the sum of $20,000, dam-

ages alleged to have been sustained by respondent

on account of personal injuries while an employe

of said petition, shows:

That this action was begun by petition under

the Statutes of the State of Oklahoma, filed by

Harry F. Stitt, claiming damages by reason of per-

sonal injury which occurred in the course of his

employment as a boiler maker in the shops of pe-

titioner at Tulsa, Oklahoma, on the 3rd day of Sep-

tember, 1920; that said petition alleged that re-

spondent was injured by being struck in the eye

by a sliver flying from the head of a prossering pin

while said prossering pin was being struck by an

air hammer in prossering the flues of an engine;

that said pin was defective in that it had been im-

properly tempered, and was old, worn and battered;

that petitioner was negligent in furnishing said pin

in its said condition, which condition was known to

Es iia adie .

alla Es ph tease tee LPB RIL SY oe BEG

petitioner, or could have been known by ordinary

care; that petitioner was further negligent in not

furnishing respondent reasonably safe tools and ap-

pliances and a reasonably safe place in which to

work (see petition, ree. 2-6),

Respondent also alleged in his petition, mis-

treatment on the part of the employes of petitioner

in the hospital of petitioner, subsequent to his in-

jury. However, the jury returned a separate ver-

dict, fixing respondent’s damages on account of said

mistreatment in the sum of $1,000.00, which amount

has been remitted by respondent and thus elimin-

ated from this case (see rec., p. 122).

Il.

That your petitioner duly filed its answer to

said petition, denying negligence, and specially

pleading that both petitioner and respondent were

engaged in interstate commerce at the time of said

accident, and that said case was governed exclus-

ively by the Federal Act, known as the Federal Em-

ployers’ Liability Aet, and that respondent’s injur-

ies were the result of an assumed risk (see ree. pp.

9-10).

III.

That the record, a certified copy of which is

cmdline

presented herewith, shows that there is no conflict

of evidence regarding the question as to whether or

not both petitioner and respondent were engaged in

interstate commerce at the time of respondent’s

injuries, respondent relying solely upon the ground

that the undisputed facts compelled the legal con-

clusion that both petitioner and respondent were not

engaged in interstate commerce at said time.

IV.

The record shows petitioner was engaged in

interstate commerce, operating a line of railway

through the states of Missouri, Oklahoma and

Texas (petition, ree. 3). The record further shows

that respondent was a boiler maker employed by

petitioner in its shops at Tulsa, Oklahoma; that at

the time of the accident he was engaged in pros-

sering flues of an engine which had heen used ex-

clusively for a long period of time for the purpose

of pulling a passenger train from Tulsa, Oklahoma,

to Enid, Oklahoma, and return (rec. 74); that the

trains which said engine was used exclusively to

pull were constantly engaged in carrying interstate

passengers, interstate express and interstate United

States mail from Tulsa, Oklahoma, to Enid, Okla-

homa; that said trains constituted a link in a well

a ———— Lp, Site Pe tae

<ailpan

established channel of interstate transportation

operated by petitioner irom St. Louis, Mis-

souri, through Tulsa, Oklahoma, to Enid,

Oklahoma, and points west in the states of

Oklahoma and California, and from Enid, Okla-

homa, and points west, through Tulsa, Oklahoma,

to St. Louis, Missouri, and points east; that

on the day prior to the aceident said engine

had pulled its regular train from Enid, Oklahoma,

to Tulsa, Oklahoma, carrying interstate mail, inter-

State express and interstate passengers, bound from

Knid, Oklahoma, through Tulsa to points in Mis-

souri, it being definitely established that four pas-

sengers on said train purchased tickets from the

petitioner at Enid, Oklahoma, over its lines to

Springtield, Missouri, and St. Louis, Missouri (ree.

pp. 74-75); that on the day of said accident, and

subsequent to said accident, the regular train which

said engine pulled from Tulsa, Oklahoma, to Enid,

Oklahoma, carried interstate passengers, interstate

nui and interstate express (ree. pp. 76-77) ; that the

characier of repairs being performed by respondent

at the time of his injuries were not such that took

said engine out of service, or caused it to lose any

time, but were what is known as “hot work’? (ree.

cade

p. 34), and were performed during the time that

it was necessary for said engine to lay over in

Tulsa, between its regular trips, but were necessary

for the purpose of maintaining said engine and en-

abling it to do its interstate work; that said engine

did not iose any time on account of said repairs,

but made its regular trip from Tulsa, Oklahoma,

to Enid, Oklahoma, on the day of the accident, leav-

ing Tulsa on its schedule time within a few hours

after said accident.

The record further shows that at the time of

the accident respondent was engaged in prossering

flues in said engine by means of a prossering pin,

prossering ring and air hammer, all of which were

furnished by petitioner; that said engine had been

placed over a pit, the fire drawn from it, and its

fire box allowed to cool, after which respondent, to-

gether with his helper, had gone into the fire box,

and at the time of the accident were engaged in

prossering its flues; that the flues were prossered

by the prossering pin being placed in the hole in

the prossering ring, and both ring and pin placed

in the flue, and the big end of the pin struck by the

air hammer; that, while doing this work, respond-

Pisa si BSN ee BIN NaS MEHR he EN at SA

ent was holding the pin, and his helper operated

the air hammer; after respondent and his helper

had been at work for about thirty minutes a sliver

flew from the head of the prossering pin and struck

respondent in the eye, causing his injury (ree., p.

22). Respondent testified that the pin slivered

by reason of the fact that it had not been properly

tempered at the time it was made; that if it had

been properly tempered it would not have slivered

(bottom of 29).

VI.

The record further shows that petitioner pur-

chased its prossering pins from J. Faessler Manu-

fucturing Company of Moberly, Missouri, estab-

lished and recognized dealers in such tools; that

said firm supplied nearly all of the big railroad

companies with such tools, and had done so for a

long time (rec. pp. 71-73 and 103-104); that peti-

tioner’s tools used by its employes at Tulsa, includ-

ing its prosser pins, were inspected by the foreman

about once a week, and oftener if defects occurred

(ree. p. 98).

Vil.

The record further shows that kerosene torches

were used as lights in performing this character

of work. One of respondent’s witnesses testified

that it had been the custom at Tulsa, for many

years, to use the kerosene torch in performing such

work; that it was used in hot work for the reason

that it could be moved about with less inconven-

ience (rec. 56, 58, 92 and 97).

In this connection there is no evidence shown

in the record, of any character, tending to show

that respondent’s injuries were caused in any man-

ner by reason of the kerosene torch being used in-

stead of the electric light. Respondent testified that

the pin slivered because it was improperly temp-

ered and would not have slivered had it been prop-

erly tempered.

VIil.

The record further shows that the prossering

pin being used by respondent at the time of the

accident was a straight piece of steel about 9” in

length, 1” in diameter at the big end, tapering to

7-16ths of an inch in diameter at the small end; that

the prossering pin is the ordinary and common tool

used by railroad men in prossering engine flues;

that respondent was thoroughly familiar with a

CMERTBE WOM

calling

prossering pin, having used prossering pins almost

daily for many years. There was no contention on

the part of respondent that the prossering ring or

air hammer, or any appliance other than the pin it-

self, was, in any manner, defective.

IX.

At the conclusion of the testimony in the trial

court, your petitioner requested the court to in-

struct the jury to return a verdict in its favor,

which was refused, and exceptions saved.

After your petitioner’s request for a directed

verdict had been refused, your petitioner submit-

ted to the court its requested instruction No. 3, and

requested that same be given. This instruction reads

as follows:

‘*You are instructed that the evidence in this

case discloses that the tools which were being

used by the plaintiff and his co-laborers, in re-

pairing the engine at the time the injuries were

received by the plaintiff, were purchased by the

defendant from an independent company, and

you are instructed in this respect that the de-

gree of care which the law imposes upon the

defendant in this connection is that its tools

be purchased from a reputable and known

establishment engaged in the business of manu-

—10—

facture and sale of said tools, and the defend-

ant was entitled to rely upon said tools being

reasonably safe and reasonably fitted to per-

form the work for which they were manufac-

tured and sold, and unless the defect in the tool

which resulted in the injury to plaintiff was

obvious and apparent, or could be discovered

hy an inspection, then you are instructed that

the defendant has discharged its duty in this

respect to the plaintiff and could not be liable

for latent defects in said tools, and the pl. utitt

herein assumed the risk of such injuries as

are incident to and arise from the use of said

tools in the business in which he was engaged,’”’

which request was refused, and exeeptions saved

(ree. p. 110).

Xi.

Instead of giving your petitioner’s requested

instruction No. 3 as above quoted, the court gave

to the jury paragraph No, 13 of the urt’s instrue-

tions to the jury, regarding the liab.aiy of your pe-

titioner, which said instruction reads as follows:

“You are further instructed that if you find

from a fair preponderance of the evidence that

while the plaintiff was working in the general

scope of his employment and in the exercise

of ordinary care and caution while using a de-

fective prosser pin, not knowing that the same

was defective, and the same not being discov-

erable by the use of ordinary care on the part

of plaintiff furnished to him by the defendant

ns ae

—

herein, a piece of metal chipped or came off of

said defective prosser pin while being used in

the proper and ordinary way, striking the

plaintiff in the left eye, thereby totally destroy-

ing the sight of the same, the plaintiff at all

times acting within the general scope of his

employment, and exercising ordinary care,

then, and in that event, the plaintiff will be en-

iitled to reeover in such amount as by the evi-

denee will compensate him, however, not to

exceed fifty thousand dollars (rec. p. 118).

XII.

With regard to your petitioner’s defense of as-

sumed risk, tue court, over the objection of your pe-

titioner, gave to the jury paragraph No. 11 of the

court's instructions to the jury, which reads as fol-

lows:

‘You are instructed that the plaintiff herein

in accepting the employment as boiler maker rte.

tor the defendant, assumed all of the ordinary 4

aud usual risks and perils incident to such em-

ployment, whether they were dangerous or¢ agt .

otherwise, and all of the risks he had knowledge had Rarorw

of or may by the exercise of reasonable care of:

have known to exist, unless there was some yal

agreement or understanding to the contrary. Que ba sane

The plaintiff! did not, however, assume such by :

risks as were created by the defendant’s neg- w 4

ligence, if any be shown, nor such as were la-

tent or were only discovered at the time of theg,,

injury complained of by the plaintiff herein’’ tae.

(ree. p. 117).

—

XIIL.

As a result of the trial, the jury returned a

verdict against your petitioner in the sum of $30,-

000.00 (ree. p. 123). The trial court ordered a re-

mittitur in the sum of | Bs,000,00 and en

tered judgment for $25,000.00 (ree. pp. 123-129).

From this judgment your petitioner appealed to the

Supreme Court of the State of Oklahoma, which

court, on the 18th day of September, 1928, affirmed

the judgment of the lower court (Tec. pp. 128-136).

A petition for rehearing was filed within the time

allowed by the rules of the Oklahoma Supreme

Court (ree. pp. 137-174), which was denied on De-

cember 18, 1925 (ree. p. 174). Within the time al-

lowed by rules of the Supreme Court, application

for leave to file second petition for rehearing was

filed by petitioner (rec. pp. 175-153). This was also

denied on January 22, 1924 (ree. p. 154). On Feb-

ruary Sth, 1924, the Supreme Court set aside its

order denying leave to file second petition tor re-

hearing, and granted leave to tile second petition

lor rehearing and said case was set tor oral argu-

ment (ree. p. iS4). On February 8, 1924, pursuant

to said permission of the court, your petitioner tiled

its seeond petition for rehearing (ree. pp. 184-203).

On February 24th, 1925, after said case had been

orally argued as per order of the Supreme Court,

second petition for rehearing was denied (ree.

p. 203).

XIV.

Both the trial court and the Supreme Court held

that respondent was not engaged in interstate com-

merce at the time of the accident, and that the case

was not governed by the Federal Employers’ Lia-

bility Act. The Oklahoma Supreme Court held that

the trial court had correctly instructed the jury re-

garding petitioner’s liability, petitioner’s neglli-

gence, the duties which petitioner owed to respond-

ent, and petitioner’s defense of assumption of risk.

The Oklahoma Supreme Court also held that the

case had been properly submitted to the jury and

the evidence was sufficient, under the instructions

of the court, to sustain the verdict of the jury re-

garding your petitioner’s liability (see opinion,

rec. p. 133).

XV.

It is your petitioner’s contention:

(1) That the undisputed facts shown by the

record in this case compel the legal conclusion that

SEILER

YFG TO EK gt

‘tt

40 8 et Tre = oe cnagseicidicll

both petitioner and respondent were engaged in in-

terstate commerce at the time of said accident, and

this case is governed exclusively by the Federal Em-

ployers’ Liability Act.

The holding of the Oklahoma Supreme Court

in this ease is not in accord with the decisions of

this Honorable Court, which has repeatedly held, in

effect. that where an engine has heen permanently

set apart to the work of hauling interstate com-

merce, even between two points in the same state,

those performing repairs on suid engine necessary

in order that it may continue in and efficiently per-

form its interstate work, are engaged in interstate

commerce, or work so closely related to it as to be

a part of it.

In holding that this case is not governed by the

Federal Employers’ Liability Act, the Oklahoma

Supreme Court evidently followed its former de-

cision in the ease of C., R. 1. & P. Ry. Co. v. Cronin,

74 Okla. 38, 176 Pae. 919, in which it held that

where a locomotive was constantly used to pull in-

terstate trains, and had been taken from its line

tracks and placed in a round house for repairs, and

where the repairs were performed in time for it to

make its return interstate trip, the employes per-

Sic RRA

forming said repairs were not engaged in interstate

commerce,

Your petitioner is advised that there is a con-

flict between the holding of the Oklahoma Supreme

Court in the Cronin ease, supra, and in this case,

and the ruling of the Circuit Court of Appeals and

this Honorable Court on said question. See Balti-

more & O. R. Co. v. Darr, 4th Cireuit Court of Ap-

peals, 204 Fed. 751; Industrial Accident Commis-

sion V. Davis, 259 U.S. 182, 66 L. ed. 888; Pederson

Vv. D., L. d W. Ry. Co., 229 U.S. 146, 57 L. ed. 1125.

feett Ok

That in view of the conflict of authority be-

tween the Oklahoma Supreme Court and the Fed-

eral Court, there has been created confusion and

uncertainty with regard to the application of the

Federal law, and doubt concerning the rights and

obligations of employers of labor, which ought not

to exist. That certain other like cases are pending

EARS RETIN Ce

in the trial courts, and the Supreme Court of Okla-

homa, and it, therefore, follows that unless this

Honorable Court shall correet the errors of the

court below, your petitioner will be deprived of a

right, privilege and immunity under the Federal

Kmployers’ Liability Aet in this and all similar

cases, brought hereai'ter in the State of Oklahoma.

sas epee re |

=—

in this connection, your petitioner calls this

Honorable Court’s attention to the fact that the

statutes of the State of Oklahoma and the rulings

of the Oklahoma Supreme Court, regarding cases

brought under the state statutes, materially and

substantially differ from the law as announced by

the Federal Employers’ Liability Act and the rul-

ings of the Federal courts regarding same.

(2) It is the contention of your petitioner that

the trial court, by giving to the jury paragraph No.

13 of the court’s instructions to the jury as above

quoted, deprived your petitioner of the right guar-

anteed to it by the terms of the Federal Employers’

Liability Act, to have the jury instructed and the

respondent required to prove, before reeovery

could be had that respondent’s injuries were caused,

in whole or in part, by the negligence of the officers,

agents, or employes, of your petitioner, or by rea-

son of some defect or insufficiency due to its negli-

gence in its cars, engines, appliances, machinery,

ete.

By paragraph No. 13 of the court’s instructions

to the jury the jury were told, in effect, that if they

found from the evidence that while respondent was

Se eet “hai

=— =

working with a defective prosser pin furnished him

by his employer, the defect in said pin not being

discoverable by ordinary care on the part of re-

spondent, and while using ordinary care for his own

safety, a piece of metal came off of said pin and

struck respondent in the eye, injuring him, then

they should find for respondent in any sum not ex-

ceeding $50,000.00.

This instruction amounted really to a direction

that the jury return a verdict for respondent. The

facts set forth in said instruction were not disputed.

Respondent had testified as a conclusion that the

pin was defective by reason of being improperly

tempered and that he was injured by reason of a

sliver flying from the head of said pin and striking

him in the eye; that if the pin had been properly

tempered this would not have occurred. He fur-

ther testified that he could not discover the defect

in the temper of the pin by an inspection thereot,

All of the things named in said instruction may

have been true, and still your petitioner may not

have been guilty of any negligence. Said instruc-

tion not only deprived your petitioner of its rights

guaranteed under the Federal Employers’ Liabil-

Bove SiisWcei axa

—18—

ity Act to require respondent to prove that said

defect, if one existed, was due to its negligence, but

it took away from your petitioner every legitimate

defense plead and proved by it. For defense in

this case your petitioner relied upon: (a) General

denial of negligence; (b) Ordinary care in conduct-

ing inspections; (c) If any defect existed in the pin,

said defect was latent and not discoverable by an

ordinary inspection; (d) Assumption of risk on the

part of respondent. There was an abundance of

proof offered from which the jury might have found

for your petitioner on any one of said defenses.

Yet the above instruction took away from your pe-

titioner all of said defenses, and told them that if

they found the pin was defective, and was being

used by respondent with ordinary care, and re-

spondent was injured by reason of the defect,

they should find for respondent regardless of negli-

venee, regardless of inspection, regardless of la-

tentness of the defect, and regardless of assumption

of risk.

This Honorable Court has held in Seaboard

Air Line Ry. Co. v. Horton, 233 U.S. 492, 58 L. ed.

1062, a Federal employers’ liability case, that an

instruction similar to the above deprived an em-

= =

ployer of a right guaranteed to it under the Fed-

eral Act.

Instruction No, 13, in effect, directed the jury

to return a verdict for respondent if they found

certain undisputed facts to be true. It must be

presumed, therefore, that the jury found for re-

spondent by reason of said instruction, and not by

reason of some other theory about which the evi-

dence was in dispute.

It is the contention of your petitioner that the

decision of the Supreme Court of Oklahoma in

this case subverts the fundamental theory of the

law, and its result is not only to relieve the claim-

ant of the necessity of making essential proof, but

to effectually deprive your petitioner of the pro-

tection of the Act of Congress invoked.

(3) It is the contention of your petitioner that

the trial court in giving to the jury paragraph No.

11 of the court’s instructions to the jury deprived

your petitioner of the right to have said jury con-

sider its defense of assumption of risk in ease the

jury should find that the risks were created or

permitted to exist by reason of some negligence on

the part of the railway company, and that the Su.

“

—20—

preme Court of the State of Oklahoma erred in

holding that the trial court had correctly instruc-

ted the jury in regard to your petitioner’s defense

of assumed risk.

By instruction No. 11 of the court’s instruc-

tions to the jury the court told the jury, in effect,

that the respondent in accepting employment from

the railway company assum | all of the ordinary

and usual risks and peril acident to such employ-

ment, but did not, however, assume such risks as

were created by petitions r’s we alae nee

In C., R. 1. d& P. Ry. vy. Ward, 22 U.S. 18, 64

L. ed. 430, this Court held an identical instruction

with the above to be error, 4s it stat ~ without

qualification, that the servant did not assume any

risk created by the master’s negligence,

In this case if the jury could have found un-

der the evidence that the master was guilty of neg-

ligence in furnishing the pin, they should have

been permitted to have gone further and found

that respondent’s many years of familiarity with

such pins placed him in a position where he should

have known that such pins, when struck as the pin

in question was struck, would sliver, or that he

—21—

was in as good position to have known it as the

master, and therefore that he assumed the risk,

even though the master were negligent.

Wherefore, your petitioner prays that a writ

of certiorari may issue out of and under the seal of

this Court, directed to the Supreme Court of the

State of Oklahoma, commanding that court to cer-

tify the ease to this Court for a review and deter-

mination as provided in the Act of Congress known

as the Judicial Code, and that your petitioner may

have such other and further relief ir. the premises

as to this Court may seem appropriate and in con-

formity with the said Act.

W. F. Evans,

EK. T. Mier,

C. B. Srvart,

J. F. Suarp,

M. K. Cruces,

Ben FRANKLIN,

Attorneys for Petitioner.

He APR Re, Rem NE! .

PRR EN

| ae RPS PIRI CT

Pen, ,) en

Affidavit.

State of Oklahoma, County of Oklahoma, ss.

Ben Franklin, of lawful age, being duly sworn,

says that he is one of the attorneys and of counsel

for the St. Louis-San Francisco Railway Company,

a corporation, petitioner named in a petition for

certiorari filed with the Clerk of the Supreme Court

of the United States on the 11th day of April,

1925 in the above styled and numbered cause, and

has had personal charge of the prosecution of the

appeal in said case from the District Court in

and for Pawnee County, State of Oklahoma,

to the Supreme Court of the State of Okla-

homa, and the application for certiorari to be li-

rected by the Honorable Supreme Court of the

United States to the Supreme Court of the State

of Oklahoma; that he has read said petition so

filed, and by him subscribed, and that the state-

ments and allegations made herein are true to the

best of affiant’s information and _beliet.

Ben FRANKLIN,

Subseribed and sworn to before me this the

20th day of April, 1925.

June EB. Hepoecock,

(Seal) Notary Public.

My commission expires January 27th, 1929.

No. 1051.

In the

SUPREME COURT OF THE UNITED STATES

October Term 1924

ST. LOUIS-SAN FRANCISCO RAILWAY COM-

PANY, A CORPORATION, PETITIONER,

vs.

HARRY F. STITT, RESPONDENT.

BRIEF AND ARGUMENT.

In this brief we will discuss the propositions

relied on in our petition in the order as mentioned

therein.

} *

The undisputed facts shown by the record compel

the legal conclusion that both petitioner and respondent

were engaged in interstate commerce at the time of

said accident, and this case is goyerned exclusively by

the Federal Employers’ Liability Act. The Supreme

Court of the State of Oklahoma erred in holding that

the case was not governed exclusively by said Act.

Both the Supreme Court of the State of Okla-

homa and the trial court, before whom this case

was tried, were evidently of the opinion that the

5 el et A eT tae DU

Sete aR eds

facts in this ease were not sufficient to bring said

ease within the terms of the Federal Employers’

Liability Act—that is, they were evidently not of

the opinion that both petitioner and respondent

were engaged in interstate commerce, or in work

so closely related to it as to be a part of it, at the

time respondent was injured.

The question as to whethe not petitioner

and respondent were engaged in interstate com-

merce at the time of respondent’s injuries is, of

course, all important so far as this application is

concerned, If both parties were engaged in inter-

state commerce at the time of the injury, and the

ease governed by the Federal Employers’ Liability

Act, then, if the court deprived petitioner of an

immunity guaranteed to it under said Act, the writ

of certiorari applied for herein should be granted.

Regardless of the fact as to whether or not

respondent intended to bring his case under the

Federal Act, if the facts as developed at the trial

showed that both parties were engaged in inter-

state commerce at the time of the alleged inju-

ries, then said case is governed by the Federal

Act and the petitioner is entitled to have said case

tried by the law announced in said Act, and the

= =

rule established by the Federal Courts regarding

eases coming within the terms of said Act.

Mondou v. N.Y. N. H. & H. R. Co.

(2d Employers’ Liability Cases), 223

U. S. 1, 56 L. ed. 327.

C., R.L & P. Ry. Co. v. John F. Define,

239 U.S. 52, 60 L. ed. 140.

Erie Railroad Co. v. People of the State

of New York, 223 U.S. 671, 58 L. ed.

1149.

Seaboard Air Line Ry. Co. v. Horton,

223 U. S. 492, 58 L. ed. 1062.

If the Federal Emplovers’ Liability Act, and

the law announeed by this Honorable Court rela-

tive thereto, governed this case, and the trial court

refused to apply principles of law established by

this Court relative to eases coming within the terms

of said Act, and petitioner was deprived of an im-

munity guaranteed to it under the terms of said

Act by the action of said court, and the Supreme

Court of the State of Oklahoma refused to correct

such ervor, then we take it that this Court will is-

sue its writ of certiorari, review the record and

correct said errors.

Boldt +. Pa. R. R. Co., 245 U. S. 441, 62

L. ed. 365,

New Orleans & Northeastern R. R. Co.

v. Scarlet, 249 U.S. 528, 63 L. ed. 752.

Edward Pryor v. Williams, 254 U. S.

43, 65 L. ed. 120.

oF caanee

DR eee ae

FON ee hee

Ba a a ee ae ata

SRNR ENS

PE NR IER

The first question then to consider is, were

both petitioner and respondent engaged in inter-

state commerce at the time of respondent’s alleged

injuries, and is this ease controlled by the Fed-

eral Employers’ Liability Act?

The testimony contained in the reeord shows

that the engine on which respondent was at work

at the time of his injury made regular trips from

Tulsa, Oklahoma, to Enid, Oklahoma, and return.

It is abundantly shown that the repairs were of

such a character that it was not necessary to take

said engine out of service (Tree., Pp. 34). The

engine arrived at Tulsa on its regnlar trip from

Enid, Oklahoma, at 5:40 on the afternoon of Sep-

tember 2nd. In the early morning of September

2rd the fire had not been drawn from this engine.

As expressed by some of the witnesses, it was stili

hot. It was chalked on the blackboard for certain

minor repairs to be finished before it should leave

on its regular return trip at 1:50 a, m, on Septem-

ber 3rd. The repairs were made and it did leave

on its regular return trip on that day. The evidence

further conclusively shows that the trip which this

engine regularly made from Tulsa to Enid and

return was a connecting link in a channel of com-

a ae

merce between St. Louis, Missouri, and points

east and Enid, Oklahoma, and points west; that

passengers, express and United States mail were

carried by other trains to Tulsa, Oklahoma, and

picked up by this engine, and earried to Enid, Ok-

lahoma, and there picked up by other engines and

carried to points west in Oklahoma, Texas and

Cxlifornia (ree. 75 and 77). It is conclusively shown

hy the testimony that on the day prior to the acei-

dent, the last trip the engine made before the acei-

dent, it carried at least four interstate passengers

from Enid, Oklahoma, to Tulsa, Oklahoma; two of

these passengers were bound for Springfield, Mis-

souri. and two for St. Louis, Missouri (Ree., pp.

74-75). It evidently carried mail for points out-

side the State of Oklahoma to the east, and ex

press for points outside the State of Oklahoma.

It is conclusively shown by the testimony that on

September 3rd, on its regular trip next after the

accident occurred, this train carried passengers

from points outside the State of Oklahoma to

Enid and points west; that it carried United States

mail from points outside the State of Oklahoma to

Enid, and that it carried numerous packages of

express, some from Wichita, Kansas, and many

Oy Re

te has

poy

—28—

from New York City, New York, to parties living

at Knid, Oklahoma (ree. pp. 99-101). The tes-

timony shows that the trains pulled by this engine

were constantly carrying interstate commerce, and

were used by the petitioner as a connecting link in

a line of transportation moving passengers, express

and United States mail trom St. Louis and points

east to Enid, Oklahoma, and points west (rec. pp.

75 and 77).

We take it that the above testimony conclu-

sively establishes the interstate nature of this en-

gine,

In New York Central & Hudson River R. R.

Co. v. Carr, 238 U. S. 260, 59 L. ed. 1298, this Hon-

orable Court said:

‘‘A brakeman on a ‘pick-up’ freight train

running between points in the same state, but

containing some ears loaded with interstate

freight, who was injured white attempting, in

the course of his employment, to set the brake

on an intrastate ear which had been cut out of

the train and backed into a siding, was em-

ployed in interstate commerce, within the

meaning of the Federal Employers’ Liability

Act of April 22, 1908, where the setting of

such brake was necessary in order that the

engine to which the car was attached might,

when uncoupled, return to the train and pro-

ceed on its journey.’’

=~ =

It cannot be said that the engine in question

had ceased to partake of the character of com-

merce in which it was constantly engaged; there

was no such withdrawal from service that would

change the relation of the engine to the character

of work being constantly performed by it. It was

not withdrawn from the service—it was as much

engaged in the service while it was being repaired

to return on its regular trip as if no repairs had

been necessary. This engine was set apart for a

certain duty, and had heen performing certain

duties for a long period of time. No interruption

was had in the relation of this engine to its duties

at the time the accident occurred.

In Industrial Accident Commission vy. James

C. Daris, 259 U. S. 182, 66 L. ed. 888, this Honor-

ble Court, in our opinion, clearly defines what must

oceur before an engine which is constantly used in

interstate commerce can be said to have lost its

character as an interstate commerce engine, as fol-

lows:

‘‘In some, the tracks, bridges and roadbed

and equipment in actual use may be said to

have definite character, and give it to those

employed upon them. But equipment out of

use, withdrawn for repairs, may or may not

Fe ee:

EIT AG LER IR LE NE OS I AS I EE SIE

partake of that character, according to cireum-

stances; and among the circumstances is the

time taken for repairs,—the duration of the

withdrawal from use. Illustrations readily

occur. There may be only a placement upon

a side track or in a roundhouse—the interrup-

tion of actual use, and the return to it, being

of varying lengths of time; or there may be a

removal to the repair and construction shops,

a definite withdrawal from service and

placement in new relations,—the relations of

a workshop,—its employments and employes

having cause in the movements that constitute

commerce, but not being immediate to it.”

In the ease under consideration there was only

a placement on a side track. This placement

occurred so that there was no interruption of the

actual use mentioned by this Honorable Court in

Industrial Commission v. Davis, supra, In the

above ease this Honorable Court intimates that

there might be an interruption of actual use for a

short length of time and yet the engine not lose its

relation to commerce, and still retain its character

secured by such relation. However, in this case,

no time was lost. The minor repairs performed

were performed by ‘thot work,’’? a term used by

railway employes to designate work while the en-

gine is yet hot, and work that will not interrupt

the customary runs of the engine.

In Pederson vy. Delaware, Lackawanna &

Western R. Co., 229 U. S. 146, 57 L. ed. 1125, this

Honorable Court had under consideration the ques-

tion whether or not an employe, carrying a sack

of bolts to be used in repairing a bridge which was

regularly used in both intrastate and interstate

commerce, was employed in interstate commerce

within the meaning of the Act. In speaking of the

relation of a bridge worker to interstate commerce

as compared with those working upon engines and

cars, it was said:

‘‘That the defendant was engaged in inter-

state commerce is conceded ; and so we are ouly

concerned with the nature of the work in which

the plaintiff was employed at the time of his

injury. Among the questions which naturally

arise in this connection are these: Was that

work being done independently of the inter-

tate commerce in which the defendant was en-

gaged, or was it so closely connected there-

with as to be a part of it? Was its perform-

ance a matter of indifference so far as that

commerce was concerned, or was it in the na-

ture of a duty resting upon the carrier? The

answers are obvious. Tracks and bridges are

as indispensable to interstate commerce by

railroad as are engines and cars; and sound ;

economic reasons unite with settled rules of

law in demanding that all of these instrumen-

talities be kept in repair. The security, ex-

pedition, and efficiency of the commerce de-

uy 3 ta ee

5 rey Na

eae eae Dt a a ee a

Sewer me |

—

pends in large measure upon this being done.

Indeed, the statute now before us proceeds

upon the theory that the carrier is charged

with the duty of exercising appropriate eare

to prevent or correct ‘any defect or insuffi-

ciency * * * in its cars, engines, appli-

ances, machinery, track, roadbed, works, boats,

wharves or other equipment’ used in interstate

commerce. But independently of the statute,

we are of opinion that the work of keeping

such instrumentalities in a proper state of re-

pair while thus used is so closely related to

such commerce as to be in practice and in legal

contemplation a part of it. The contention to

the contrary proceeds upon the assumption

that interstate commerce by railroad can be

separated into its several elements, and the

nature of each determined regardless of its

relation to others or to the business as a whole,

But this is an erroneous assumption, The

true test always is: Is the work in question a

part of the interstate commerce in which the

carrier is engaged * * * Of course, we

are not here concerned with the construction

of tracks, bridges, engines or ears which have

not as vet hecome instrumentalities in such

ecommerce, but only with the work of main-

taining them in proper condition after they

have become sveh instrumentalities and dur-

ing their nse as such.’’

If the engine in question was heing used con-

stantly to pull interstate commerce from Tulsa,

Oklahoma, to Enid, Oklahoma, and return, thus

forming a link in a chain of transportation of in-

= =

terstate commerce; if it was actually used on its

last trip in interstate commerce; if it was actually

used on its next trip in interstate commerce, then

we think it must be said that the engine, itself,

when in actual use was engaged in interstate com-

merce or work so closely related to it as to be a

part of it. Then, as was stated by this Honorable

Court in the Pederson case, supra, the detail work

necessary to the keeping of this engine in condi-

tion so that it could perform its interstate work,

would be just as much a part of the work of inter-

state commerce as the work performed by the en-

gine while it was actually on the road.

The same principles have been announced by

this Honorable Court in

Ainzel vy. C. M. d St. P. Ry. Co., 250 U.

S. 130, 63 L. ed. 893.

Shanks v. Delaware, L. & W. R. Co.,

259 U.S. 556, 60 L. ed. 4386.

Second Employers’ Liability cases

(Walsh v. New York, N. Y. & H. R.

Co.), 223 U. S. 1, 56 L. ed. 327, 38 L.

R. A. (N.S.) 44.

Norfolk d& Western Ry. Co. v. Earnest,

229 U. S. 114, 57 L. ed. 1096, 33 Sup.

Ct. Rep. 654, Ann. Cas. 1914C 172.

PLE A REE HE NPE LCA BEE NIA ISCO REN

ee Yee

St. Louis-San Francisco Ry. Co. Vv.

Seale, 999 U. S. 156, 57 L. ed. 1129,

33 Sup. Ct. Rep. 651, Ann Cas. 1914C

156.

North Carolina R, Co. V. Zachary, 232

U. S. 248, 58 L. ed. 591, 34 Sup. Ct.

305, Ann. Cas. 1914C 159.

This ease is readily distinguishable from J/iu.

d St. L. R. R. Co. v. Winters, 242 U.S. 358, 61 L.

ed. 358. In the Wint « case this Court stated

that the agreed statement of facts consisted of only

, few words. It was agreed that the engine had

been used in the hauling ot freight trains over de-

fendant’s line, which freight trains hauled both in-

trastate and interstate commerce, and it Was so

used atter plaintiff’s injury. The last time be-

fore the injury on which the engine was used was

on October 18th, when it pulled a freight train

into Marshalltown, and it was used on October 21st,

after the accident, to pull a freight train out of the

same place. This Court stated that the mere fact

it had been used on October 18th to pull a freight

train into Marshalltown, and was used three

days later, and after the accident occurred, to pull

a freight train out of said place, was not sufficient

to show that the engine was devoted to interst: ate|

commerce. There seemed to be no certainty whert

= SS

the engine was taken out of service on October 18

that it would be put back in interstate service, or

in any service at all. It so happened that three

SoC aS

days after it was taken out of service it pulled an

interstate freight train out of Marshalltown, The

court stated that the engine was not interrupted

in an interstate haul to be repaired and go on. It

had simply finished some interstat* business and

had not yet begun on any other. Its next work

might have been interstate or confined to the state

of Iowa, as it should happen. At the moment of

the accident it was not engaged in any commerce.

In the case under consideration, the engine

was permanently devoted to fulfilling a link in a

chain of interstate commerce transportation. The

evidence shows that it had been devoted to this

work for a long time. At the time of the accident

it was doing this work and no other. its regular

business was to haul a pick-up train constantly en-

gaged in interstate commerce. ‘The fact is not im-

portant in this case that the engine itself was con-

fined at all times to points within the State of Ok-

lahoma if it was constantly used in hauling inter-

-state commerce trom Tulsa, Oklahoma, to Enid,

Oklahoma, and vice versa. It was as much engaged

ww keel meee |

in interstate commerce as if the trips it made ex-

tended out of the State of Oklahoma.

The character of the commerce being hauled is

the test, rather than the route over which the en-

gine travels in making the haul.

Roberts on Injuries to Interstate km-

ployes on Railroads, p., 185, See. 69.

Cincinnati, New Orleans & Texas Pa-

cific Ry. Co, v. Interstate Commerce

Commission, 162 U.S, 184, 40 L. ed.

935.

The Oklahoma Supreme Court stated in its

opinion that it could not ascertain from an exam-

ination of the record whether or not the trial court

was of the opinion that the Federal Employers’

Liability Act governed this ease. However, the Su-

preme Court held that said Act did not govern the

case. We do not think it is a matter of great im-

portance whether the trial court thought the Fed

eral Act applied, or thought that it did not apply.

In this ense the petitioner plead as a part of its

answer that the case was governed by said Act.

If the facts were sufficient to show, as we think

they were, that said Act does apply to this case, and

the court by its instruction to the jury deprived

petitioner of an immunity guaranteed to it by said

— Be

Act, or by the principles established by this Hon-

orable Court applicable to said Act, then the peti-

tioner is entitled to redress at the hands of this

Honorable Court.

Il.

In giving to the jury paragraph No. 13 of the

court’s instructions to the jury, the trial court de-

prived petitioner of its right guaranteed under the

Federal Employers’ Liability Act, to have the jury in-

structed and respondent required to prove that the

defect, if one existed, in the instrumentality furnished

the employe, must have occurred or have been per-

mitted to exist by reason of some negligence on the

part of the company, its officers or employes, before

recovery could be had on that account, and the Supreme

Court of the State of Oklahoma erred in holding that

the trial court had correctly instructed the jury re-

garding the alleged negligence of the company and

the duties which said company owed respondent.

Paragraph 13 of the trial court’s instructions

to the jury reads as follows:

‘‘You are further instructed that if you find

from a fair preponderance of the evidence that

while the plaintiff was working in the general

scope of his employment and in the exercise of

ordinary care and caution while using a defec-

tive prosser pin, not knowing that the same was

defective, and the same not being discoverable

by the use of ordinary care on the part of the

plaintiff furnished to him by the defendant

ere |

Bsacicccs cr.

herein, a piece of metal chipped or came off of

said defective prosser pin while being used in

the proper and ordinary way, striking — the

plaintiff in the left eye, thereby totally destroy-

ing the sight of the same, the plaintiff at all

times acting within the general scope of his

employment, and exercising ordinary care, then

and in that event the plaintiff will be entitled to

recover in such amount as by the evidence will

compensate him, however, not to exceed fifty

thousand dollars’’ (ree. p. 118).

Assuming that the Federal Employers’ Liabil-

ity Aet governs this case, the above instruction de-

prived petitioner of the right to require that re-

spondent prove his injuries occurred by re son of

some negligence on petitioner’s part before he could

recover. By the above instruciien t! url under-

takes to tell the jury in the concrete just what facts

are necessary for them to find in order to fin’? for the

plaintiff. The court tells the jury if they do find

the facts set forth in said instruction, then it is

their duty to find for the plaintiff. The jury may

have found all the facts set forth in the above in-

struction and then may not have found that peti-

tioner was guilty of negligence. By abov instrue-

tion the court tells the jury that if they find that

respondent was using a defective prosser pin,

not knowing that it was defective, said defect not

—39—

being discoverable by an ordinary inspection, the — .

pin being furnished by petitioner, and respondent

was injured while in line of duty, and while exer- ~

cising ordinary eare, by a sliver flying from said pin

and striking respondent in the eye, then they should

find against petitioner and in favor of respondent.

This instruction was in direct conflict with the Fed-

eral Act which limits the employe’s right of re-

covery to injuries caused by the negligence of the

employer.

This court has had before it, we think, this

identical preposition. It was the contention of

plaintiff in Seaboard Air Line R. Co. v. Horton, 233

U.S. 492, SS L. ed. 1062, that lability existed for

injury to an engineer by reason of the failure of

the railway company to furnish a guard which was

claimed was necessary for the safe use of the steam

gauge on the engine. In that case the court in-

structed the jury as follows:

“If vou find from the evidence that it (the

locomotive engine) was turned over to him

without the guard, and if you further find from

the evidence that the guard was a_ proper

safety provision for the use of that gauge, and

that it was unsafe without it, then the defend-

ant did not furnish him a safe place and a safe

appliance to do his work, and if it remained in

Bae RE RENEE BRS

th ins

vers

Steud

yee

BE Sa cacear pte Sees atid

RIO rt

_—

that condition it was continuing negligence on

the part of the defendant, and if he was injured

in consequence thereof, if you so find by the

greater weight of the evidence, you should an-

swer the first issue ‘yes.’ ’’

Mr. Justice Pitney, in criticising this instrue-

tion, speaking for this court said:

‘‘In these instructions the trial judge evi-

dently adopted the same measure of responsi-

bility respecting the character and safe condi-

tion of the place of work, and the appliances

for doing of the work, that is preseribed by the

local statute. But it is settled that since Con-

gress, by the act of 1908, took possession of

the field of the employers’ liability to em-

ployes in interstate transportation by rail, all

state laws upon the subject are superseded.

Second Hmployers’ Liability Cases (Mondou

v. New York, N. H. & H. R. Co., 223 U.S. 1, 55,

56 L. ed. 327, 348).

‘*The act is quoted in full in that case at p.

6. By its first section a right of action is eon-

ferred (under conditions specified) for injury

or death of the employes resulting in whole or

in part from the negligence of any of the or-

ficers, agents or employes of such carrier,. or

hy reason of any defect or insufficiency, due to

its negligence, in its cars, engines, appliances

machinery, track, roadbed. * * *

JA \

‘*This clause has two branches; the one eoy-

ering the negligence of any of the officers,

agents or employes of the carrier, which has

the effect of abolishing in this class of cases the

ree ae

common law rule that exempted the employer

from responsibility for the negligence of a fel-

low employe of the plaintiff; and the other re-

lating to defects and insufficiencies in the ears

engines, appliances, ete. But, plainly, with re-

spect to the latter as well as the former ground

of liability, it was the intention of Congress to

base the action upon the negligence only, and

to exclude responsibility ~6f the carrier to its

employes for defects and insufficiencies not at-

tributable to negligence. The common law rule

is that an employer is not a guarantor of the

safety of the place of work or of the machinery

and appliances of the work; the extent of its

duty to its employes is to see that ordinary eare

and prudence are exercised to the end that the

place in which the work is to be performed and

the tools and appliances of the work may be

safe for the workmen, * * * To hold that under

the statute the railroad company is liable for the

iujuru or death of an employe resulting from

any defect or insufficiency in its cars, engines,

appliances, ete., however caused, is to take from

the act the words ‘due to its negligence.’ The

plain effect of these words is to condition the

ability upon negligence; and had there been

doubt before as to the common-law rule, cer-

tainly the act now limits the responsibility of

the company as indicated. The instructions

above quoted imposed upon the emplover an

absolute responsibility for the safe condition

of the appliances of the work, instead of lim-

iting the responsibility to the exercise of rea-

sonable eare. Tn effect, the inry was instructed

that the absenee of the gnard glass was con-

——— =

oP se.

;

ota

;

clusive evidence of defendant’s negligence. In

this there was error’’ (italies ours).

By instruction No. 13, above quoted, the jury

were emphatically instructed that the defect in the

pin rendered the company liable, regardless ot how

the defect came about. They were told that the

company was liable for the injury of an employe re-

sulting from a defect or insufficiency in its ap-

pliances, however caused. They were told the very

thing that this Honorable Court has said took away

from the Act the words, ‘‘due to its negligence’’.

The instruetion imposed upon the employer an ab-

solute responsibility for the safe condition of the

appliances of the work, instead of limiting the re-

sponsibility to the exercise of reasonable care. In

short, the court instructed the jury just what this

Honorable Court said in the Horton ease, supra,

the court should not instruct the jury.

Under instruction No. 18 the company may

have purchased the tool from a respensible and re-

liable firm; the defect may have been caused by a

mistake in the temper when the tool was made; the

defect may have been such as to make it impossible

for the railway company to discover it by any in-

spection which it was its duty to conduct; the com-

_—

pany may have fulfilled its entire duty in conduet-

ing inspections yet the jury had no alternative but

to return a verdict for the respondent. There was

evidence tending to support all of the above enum-

erated defenses, but the jury were not at liberty

to consider any of them if they followed the admon-

iiion contained in instruction No. 13.

At page 70 of the record filed with this Hon-

orable Court, respondent testified that the defect

existed in the pin by reason of the pin being im-

properly tempered at the time it was made, and that

one could not determine its defective condition by

looking at it. Then, if this is true, the defect was

latent and not discoverable by an inspection which

it was the duty of the company to make, yet by the

above instruction the jury are told to find for the

jlaintiff regardless of the latentness of the defect,

and regardless of the fact as to whether or not the

aeiect was discoverable by any inspection which

came within the duties of petitioner.

A suit in a state court under the Federal Em-

ployers’ Liability Act is governed by the rule of

the Federal courts that the negligence of the de-

fendant is an affirmative fact which plaintiff must

establish.

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New Orleans & Northeastern R. R. Co.

&u.S. F. d G. Co. vy. Harris, Admr.,

247 U. S. 367, 62 L. ed. 1167.

Nitroglycerine Case (Parrott y. Wells),

15 Wall. 524, 537, 21 L. ed. 206, 211.

Patton vy. Texas & P. R. Co., 179 USS.

658, 663, 45 L. ed. 361, 364, 21 Sup.

Ct. Rep. 275.

Seaboard Air Line R. Co. y. Horton, 233

U.S. 492, 501, 502, 58 L. ed. 1062, 1068,

1069.

Boldt v. Pa, R. R. Co., 245 U.S. 441, 62

L. ed. 385.

Marian J. Looney v. Metropolitan R. R.

Co., 200 U.S. 480, 50 L. ed. 564.

Texas P. R. Co. vy. Barretl, 166 0. S. 617,

41 L. ed. 11386.

In the ease under consideration the railway

company was not an insurer of the safety of its

prosser pins, but was required to exercise only or-

dinary care to keep such pins in good repair, and

if it used ordinary care it was not liable for an in-

jury resulting to the respondent from a_ defect

therein not discoverable by such ordinary care. The

question of ordinary care was for the jury to pass

upon under the evidence in the case, but by the

above instruction, the court eliminated this question

and told the jury that if the pin was defective, re-

gardless of whether or not the company knew it,

or could have known it by an inspection, and re-

sponcont was injured while using it, then the com.

patiy was liable.

As has been said above, the evidence in this

case tended to show that the defect in the pin, if one

existed, was latent—that is, it consisted of an im-

proper temper of the metal composing the pin. If

the defect was latent so that an inspection which

was the duty of the company to make, would not

discover it, then the company would not be re-

sponsible for the defect. This principle has been

thoroughly established by this Court, as well as a

majority of the state courts of this country.

Atlantic, ete., R. Co. v. Reynolds, 117

Ga. 47, 48 S. EK. 456.

Smith v. New York Cent. & H. R. R. Co.,

58 N. E. 655.

Thompson on Negligence, p. 1053.

Martin v. Highland Park Mfg. Co., 128

N. C. 264, 38 S. E. 876, 83 Am. St.

Rep. 671.

28 Cye., page 1145.

Moran v. General Fire Extinguisher Co.,

259 Pac. 168, 102 Atl. 501.

Export Cooperage Co. v. Ramsey (Ark.),

202 S. W. 468.

South v. Seattle, P. A. d& W. Ry. Co., 168

Pac. 896.

Skidmore v. West Virainia & P. R. Co.,

41 W. Va. 293, 23S. W. 713.

Noyes v. Smith, 28 Vermont 59. 65 Am.

Dee, 222.

—

Galveston M. & S. A. Ry. Co. ve Buch

(Tex.), 65 S. W. 681.

Alexander vy. Pa. Water Co. (Pa.), 50

Atl, 991.

Nutt v. South. Pac. Ry. Co. (Oregon),

35 Pac. 653.

Mulligan v. Crimmins, 75 Thon. 587, 27

N. Y. Sup. 819.

Roughan v. Boston & Lockhart Block

Co. (Mass.), 36 N. EF. 461.

Louisville & N. R. Co. v. Ilinder (Ky),

30 S. W. 399.

It is true that the court instructed the jury in

this case that negligence must be shown on the

part of the railway company proximately causing

respondent’s injuries, before he would be entitled

to recover. However, in view of the faet that the

court told the jury that if they believed the things

stated in instruction No, 13 existed, then they

should find for the respondent, this was equal to

telling them that the things stated in instruction

No. 13 constituted negligence on the part of the

company which proximately caused respondent’s

injuries. After the giving of instruction No, 13,

petitioner was not aided in the least by an instruc-

tion to the effect that negligence must exist before

recovery could be had.

In view of the fact that the things set forth

—47—~

in instruction No. 13, which, if existed, definitely

’

fixed petitioner’s liability, were not contradicted,

then it must be presumed that the jury found against

petitioner by reason of this direct admonition rela-

tive to undisputed facts, and did not find against the

petitioner on account of some other theory about

which the facts were in dispute. Then the only al-

legation of negligence now left in this case, other

than the latent defect in the pin, is the failure on

the part of the company to furnish respondent an

electric light instead of a kerosene torch. There

is not one scintilla of proof in the record that the

use of the kerosene torch, instead of the light, in

any manner caused or contributed to the cause of

the accident. Respondent testified that the pin

slivered because it was improperly tempered. No

one testified anything tending to show that the pin

slivered, or the respondent was struck by the sliver

on aceount of insufficient light.

In Kansas City & P. R. Company v. Ryan, 52

Kan. 637, 35 Pac. 292, it was said:

‘If the company purchased the jack of a

well known and reliable house, with an estab-

lished reputation as a dealer in railroad tools

and supplies, and the defect was latent or con-

cealed, so that no one but a mechanie or a

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skilled worker in iron could have discovered

it by eareful examination, the railroad com-

pany would not be guilty of negligence, in fur-

nishing the jack for use to its emploves.”’

Petitioner’s requested instruction No, 3 was

almost identical with the above excerpt, yet the

trial court refused to give said instruction, but in

stead gave instruction No, 18 above quoted. Pe

titioner’s requested instruction No. 3 reads as

follows:

‘You are instructed that the evidence in this

ease discloses that the tools which were being used

by the plaintiff and his co-laborers, in repairing

the engine at the time the injuries were received

by the plaintiff, were purchased by the defendant

from an independent company, and you are in-

structed in this respect that the degree of care

which the law imposes upon the defendant in this

connection is that its tools he purchased from a

reputable and known establishment engaged in ihe

business of manufacture and sale of said tools,

and the defendant was entitled to rely upon

said tools being reasonably safe and reasonably

fitted to perform the work for which they were

manufactured and sold, and unless the defect in

the tool which resulted in the injurv to the

plaintiff was obvious and apparent, or could be

discovered by an inspection, then vou are instruct-

ed that the defendant has discharged its duty in

this respect to the plaintiff and could not be liable

for latent defects in said tools, and the plaintiff

herein assnmed the risk of sneh injuries as are in-

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cident to and arise from the use of said tools in

the business in which he was engaged”? (ree. p. 110).

The evidence in this case conclusively showed

that the prosser pin in question was purchased

from an independent and reliable establishment of

good reputation; a company which had, for many

years, furnished such tools to all of the big rail-

road companies of the country. When the railway

company purchased the pin in question from this

company of good standing and reputation, they

had a right to presume in the absence of any de-

fect which was discoverable by the use of ordinary

care, that the tool was safe to furnish its employes,

and were not negligent in failing to put the tool

to some test, if such test is possible, which would

determine the exact nature of the metal composing

the interior of said pin.

It will be seen that the court’s entire instrue-

tions to the jury bore out the idea expressed by in-

struction No. 13, supra. By instruction 3a the

court told the jury ‘‘before the plaintiff is entitled

to recover in this case he must prove (subdivision

2) that the defendant had failed to provide him

with reasonably safe tools and appliances with

which to do his work’? (ree. p. 115). By instrue-

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tion No, 4 the court told the jury, ‘‘a duty is indi-

cated and measured by the exigencies of the occa-

sion as they appear from the surrounding facts

and circumstances at the time’’ (ree. p. 115). By

instruetioin No. 10 the court told the jury, ‘‘you

are instructed that it is the duty of the employer

to * * * see that same (appliances and tools) are

kept in proper repair an the employe

is under no obligation to inspect the tools and ap-

pliances for latent defects.’? Then followed in-

struction No, 13 as above quoted, which, in effect,

directed the jury to return a verdict for the de-

fendant regardless of negligence. Petitioner may

have failed in all particulars stated in these in-

structions to do the things mentioned therein, but

such failure may not have resulted in negligence

or carelessness. Petitioner may have failed to

provide reasonably safe tools and appliances, but

may not have been negiigent in that respect.

We submit that the giving of instruction No.

13, and other instructions above referred to, de-

prived this petitioner of an immunity guaranteed

to it under the Federal Act. It deprived the pe-

titioner of the right to have the jury instructed

that respondent must prove some negligence upon

— =

the part of petitioner proximately causing his in-

jury, in the absence of which evidence respondent

could not recover. It enabled respondent to re-

cover from petitioner by the mere fact of estab-

lishing a defect in the pin and his injury, regard-

less of the fact as to whether or not the defect was

caused by petitioner’s negligence. (For more ex-

tended argument and authorities in support of this

proposition, we respectfully eall this Honorable

Court’s attention to the argument contained in our

petition for rehearing filed with the Oklahoma Su-

preme Court shown at pages 137 to 174 of the

record. )

III.

The trial court in giving to the jury paragraph

No. 11 of the court’s instructions to the jury, de-

prived petitioner of the right guaranteed it under the

Federal Employers’ Liability Act to have the jury con-

sider petitioner’s defense of assumed risk, if the

risks were created by petitioner’s negligence.

At the request of respondent, and over the ob-

jection and exceptions of petitioner, the court, by

paragraph No, 11 of his charge, instructed the jury

regarding the question of assumption of risk, as

follows:

‘‘You are instructed that the plaintiff herein

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—52—

in accepting the employment as boiler maker for

the defendant, assumed all of the ordinary and

usual risks and perils incident to such employment,

whether they were dangerous or otherwise, and all

of the risks he had knowledge of or may by the ex-

ercise of reasonable care have kn wn to exist, un-

less there was some agreement or understanding

to the contrary. The plaintiff did not, however, as-

sume such risks as were created by the defendant’s

negligence, if any be sh. |, nor such as were

latent or were only discovered at the time of the

injury complained of by the plaintiff herein’’ (ital-

ies ours) (ree. p. 117).

In Seaboard Ail Line R. Co. vy. Horton, 233 U.

S. 492, 58 L. ed. 1062, the trial court had instructed

the jury as follows:

‘*He (the employe) does not assume the risk

incident to the negligence of his employer in

providing machinery and appliances with

which he has to work.’’

This Honorable Court, peaking through Mr.

Justice Pitney, said:

‘‘When the employe does know of the de-

fect, and appreciates the risk that is attribut-

able to it, then if he continues in ite employ-

ment without objection, or without obtaining

from the employer or his representative an as-

surance that the defect will be remedied, the

employe assumes the» ‘, vven though it arise

out of the master’s breach of duty.’’

—53—

The above instruetion was harmful in this case

for this reason:

Suppose the jury found that the defect in the

pin existed, and conceding, for the moment, that

there was sufficient evidence before them from

which they might have found that it existed by

reason of the negligenee of the railway company,

yet found that owing to the fact that respondent

had been an experienced railway man for fifteen or

eighteen years, and for many years had been con-

stantly at work with such pin, should have known

of the danger of the pin slivering, or was in as

favorable a position as the company to have as-

certained it, then, under the true rule, as set forth

in the Horton ease, supra, they must have found

that he assumed the risk, but by the above instruc-

tion, which told the jury that in no event would he

assume a risk created by the negligence of the mas-

ter, the petitioner was deprived of having them

pass upon this question.

In C., R. 1. & P. Ry. Co. v. Ward, 252 U.S. 18,

64 L. ed. 430, this Honorable Court had before it

an identical instruetion with the instruction above

quoted and given by the trial court in this case.

That case was on writ of certiorari to the Supreme

pov yee a BR geri ti 3

cotiliini

Court of Oklahoma. The trial court had given the

following instruction:

‘*You are further instructed that while a

servant does not assume the extraordinary and

unusual risks of the employment, yet on ac.

cepting employment he does assume all the

ordinary and usual risks and perils incident

thereto, whether it be dangerous or otherwise,

and also all risks which he knows or should, in

the exercise of reasonable care, know to exist.

He does not, however, assume such risks as

are created by the master’s negligence, nor

such as are latent or are only discoverable at

the time of the injury”’ (italics ours).

It will be seen that the above instruction is

almost word for word with the instruction given by

the trial court in this ease. This Honorable Court,

speaking through Mr. Justice Day said:

‘‘Treating the case, as the court below did,

as one in which the injury occurred while the

petitioners and respondent were engaged in in-

terstate commerce, this charge as to the as-

sumption of risk was not accurate, in stating

without qualification that the servant did not

assume the risk created by the master’s negli-

gence. We have had occasion to deal with the

matter of assumption of risk in eases where

the defense is applicable under the Federal

Employers’ Liability Act, being those in

which the injury was caused otherwise than by

the vi ‘ation of some statute enacted to pro-

mote the safety of emploves. As this case was

—55—

not one of the latter class, assumption of risk

was a defense to which the defendants below

were entitled. Seaboard Ail Line R. Co. vy.

Horton, 233 U. S. 492, 58 L. ed. 1062, L. R. A.

1915C 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B

475,8 U.S. (C. C. A.) 834; Jacobs v. Southern

Rf. Co., 241 U. 8, 229, 60 L. ed. 970, 36 Sup. Ct.

Rep. 588.’’

The above instruction deprived petitioner of

its right to have the jury consider its defense of

assumption of risk if they believed that the defect

in the pin was caused or permitted to exist by rea-

son of the negligence on the part of petitioner.

(For more extended argument and authorities in

support of this proposition, we respectfully call the

Court’s attention to our second petition for rehear-

ing filed with the Oklahoma Supreme Court by ex-

press permission of said Court, shown at pages

184 to 203 of the record.)

CONCLUSION.

We have shown in this brief that this case was

governed exclusively by the Federal Act known as

the Federal Employers’ Liability Act; that under

the terms of that Act and ruling of this Honorable

Court with reference thereto, it is absolutely essen-

tial that an employe show he has been injured by

some negligence on the part of his master before

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le can recover for injuries received in the course

f his employment. Yet the trial court deprived

petitioner of this right by instructing the jury that

if respondent was injured while in the course of

his employment using a defective pin, he could re-

cover regardless of whether the defect was caused

or permtted to exist by negligence of the company

or not. The trial court, in effect, made the com-

pany an insurer of the safety of its appliances fur-

nished its employes. This position, we contend, de-

prived us of a substantial right guaranteed to us

under the Federal Act.

Petitioner requested the court to instruct the

jury, in effect, that if the evidence showed that the

tool in question was purehased from an independ-

ent and reliable establishment engaged in the man-

ufacture of such tools, and the defect which re-

sulted in plaintiff’s injury was not obvious and ap-

parent and could not be discovered by an inspec-

tion, then the company was not negligent in fur-

nishing said tool to its employe, and would not be

liable for latent defects. The court, in refusing to

give to the jury this instruction, deprived petition-

er of one of its principal defenses, and a defense

to which it was entitled under the Federal Employ-

—57—

ers’ Liability Act, and took away a substantial

guaranty under said Act.

The trial court instructed the jury in plain

terms that the respondent did not assume any risk

created by a condition, the existence of which was

negligence on the part of the company, even though

the respondent knew, or by the exercise of ordi-

nary care, could have known of the existence of the ’

dangers so created by the master’s negligence.

This instruction, under the ruling of this Honor-

able Court, was error, and in this case deprived

petitioner of the consideration of the jury, to which

it was entitled.

In view of the above, we sincerely submit that

the writ of certiorari should issue, this ease be re-

viewed by this Honorable Court, and the manifest

errors pointed out herein, be corrected.

Respectfully submitted,

W. F. Evans,

EK. T. Mier,

C. B. Sruarr,

J. F. Suarp,

M. K. Crvuce,

Ben Frank in,

Attorneys for Petitioner.

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