# Petition for Writ of Certiorari — Chicago, M. & St. PR Co. v. Coogan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0505%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1926 - **Citation:** 271 U.S. 472 ## Text i yi | Office Supreme Court, U- Fit2 Dp FEB 9 1925 No oe 268 | WM. RB Sin Supreme Court of the United States. CHicaco, MILWAUKEE & St. PAuL Ramway Com- PANY, Petitioner, re, Epvitn F. CooGAN, AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM COOGAN, DECEASED, Respondent. PETITION FOR WRIT OF CERTIORARI AND BRIEF IN SUPPORT THEREOF, TOGETHER WITH NOTICE OF APPLICATION AND ACKNOWLEDGMENT OF SERVICE THEREOF. Fr. W. Roor, A. C. ERDALL, Attorneys for Petitioner, 25 Milwaukee Station, Minneapolis, Minnesota. Of Counsel: O. W. Dynes, Esq., Chicago, Illinois, C. O. Newcomrn, Minneapolis, Minnesota, On Brief for Petitioner. Hayward Brief Company, 601-607 Fourth Ave. So., Minneapolis INDEN. Page. Pr err er rere oe ee ee ee ie 1 Petition for writ of certiorari... 6.6... eee ees 5 Statement Of facts 0.0.0... cee eee eee eee eens ! The questions SOECOR L. Sace cA s aA Re 13 go, Oe L Ee ee ee 14 Affidavit of FP. W. Root... 6.66. eens 15 Brief in support of petition for writ of certiorari. 16 TABLE OF CASES. Perkins v. N. P. Ry. Co., 198 Fed. 219, 220...-- 16 Patton vy. Texas & Pacific Railway Company, 1 U.S. 658, 45 L. Ed. 261, 21 Sup. Ct. Rep. 275. . 16 United States v. Ross, 92 UL S. 281, 23 Sup. Ct 7 See eee eee ee IS Marian J. Looney, Admy., etc. v. Metropolitan Railroad Company, 200 U.S. £80, 26 Sup. Ct. Southern Pacific Co. vo Berkshire, 254 B.S. 410i 11 Sup. Ct. Rep, 162. .... 6... c ee ee eee eee eee of Supreme Court of the United States. Cuicaco, Minwarker & Sr. Pavn RAMWway Com- PANY, Petitioner, rs, Kerri FL Coogan, AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM COOGAN, DECEASED, Respondent, NOTICE OF APPLICATION FOR WRIT OF CERTIORARI. To Messrs. T. DD. Sheehan and H. J. Goodwin, her attorneys of record : You and each of vou are hereby notified that on Monday, the 2nd day of March, 125, at the con- vening of court, or as seon thereafter as counsel can be heard, the undersigned will present and sub- mit to the Supreme Court of the United States a petition for writ of ceritorari and brief in support thereof, praying the Honorable, the Supreme Court of the United States, to cause to be issned a writ of certiorari directed to the Supreme Court of the State of Minnesota and the District Court of Dra kota county of said state, commanding said courts to certify to the United States Supreme Court, for review, a transcript of the record and preceedings of said District Court and said Supreme Court in EEE ENGI» 6 TE ME Mg, eNO tat + ei the cause entitled: “Edith F. Coogan, as Special Administratrix of the Estate of William Coogan, Deceased, Respondent, against Chicago, Milwan- kee & St. Paul Railway Company, Appellant,” be- ing No. 24105 of the state Supreme Court of the state of Minnesota. A true copy of petition for writ of certiorari and brief in support thereof are hereto attached and made a part hereof, FW. Roor, A. C. ERDALL, Attorneys for Petitioner, 25 Milwaukee Station, Minneapolis, Minnesota. Of Counsel: O. W. Dynps, Es., Chicago, Illinois, C. O. NEWCOME, Minneapolis, Minnesota, On Brief for Petitioner, Service of the foregoing notice of submission and a copy of the petition fer certiorari and brief in support thereof are hereby acknowledged — this IA, day of.. DP ahiese %..«, 3936. Attorneys for Respondent. IN THE SUPREME COURT OF TILE UNITED STATES. Cuicaco, MILWAUKEE & ST. PAUL RAILWAY COM- PANY, Petitioner, US, Eprru BF. CooGAN, AS SPECIAL ADMINISTRATRIX. OF vue ESTATE OF WILLIAM COOGAN, DECEASED, Respondent. PETITION FOR WRIT OF CERTIORARL To the Honorable, the Supreme Court of the United States: Now comes the Chicago, Milwaukee & St. Paul Railway Company and respectfully petitions this Honorable court to grant a writ of certiorari to the Supreme Court of the state of Minnesota and to remove therefrom to this court, for review, the ree- ord in the case, there lately pending, entitled: “Edith F. Coogan, as Special Administratrix of the Estate of William Coogan, Deceased, Respond: ent, against Chicago, Milwaukee & St. Paul Rail- way Company, Appellant.” being cause No, 24100 on the docket of that court, the petitioner herein being the said appellant-defendant. A duly certified copy and nine uncertified copies of the entire record, including all proceedings in the District Court of Dakota county, Minnesota, where the said cause was tried, and in the Supreme Court of the state of Minnesota, to which an ap- peal was taken from the judgment of said District Court, are filed herewith under separate cover, Petitioner representing that it is aggrieved by a final judgment of the Supreme Court of the state of Minnesota entered in said court on the 13th day of November, 1924, in the aforesaid case; that the matters at issue in said cause are wholly of a fed- eral nature and are of peculiar gravity and: impor tance in that said suit is to recover damages under the Federal Emplover’s Liability Act of Congress of April 22nd, 1908 (35 Statutes at Large 65) and Acts amendatory thereof, for the death of William Coogan, alleged to have occurred while said) Wil- liam Coogan was in the employ of the petitioner as a brakeman on an interstate freight train. Petitioner presents this application for writ of certiorari with a conviction of the justice of its position and respectfully prays that its petition be granted to the end that the particular points raised herein may be fully and finally considered and de- termined. STATEMENT OF FACTS. (Figures-in parenthesis refer to folios in printed record. ) This action was instituted in the Distriet Court of Dakota county, Minnesota, by the respondent, Mdith FP. Coogan, as special administratrix of the estate of William Coogan, deceased, to recover damages for the death of William Coogan, who re- ceived fatal injuries while employed by petitioner, asa brakeman at Farmington, Minnesota. a SERS ENTE. ficient for the plaintiff to show that the defendant : may have been guilty of negligence but the evidence must point to the fact that defendant was. As . stated in the Looney case, supra, a right of recovery ; cannot be based upon a series of presumptions. ; Without any support in the evidence the plaintiff indulges in the following presumptions : 1. That decedent stepped in between the caboose and car attached to it to couple up the air hose. 2. That decedent had his right foot between the ‘ rails and his left foot between the south rail and the air pipe line. 3. That the cars were moved before decedent had a chance to couple up the air hose. 4.) That decedent endeavored to get out from be- tween the cars. } >. That decedent at that time was at the place where the air pipe was bulged. G. That decedent's left) foot) became fastened under the round air pipe line. - d 7. That the shoe was not dented or seratcehed be- fore the accident. OTT S. That the left shoe was scratched and indented immediately after the accident. 9. That the left shoe did not become scratched RT hy OR sere or indented while on the floor of the undertaker’s garage. 10.) That the dent and seratch on the left shoe was caused by the foot being caught under the air pipe line. oe 2 , 11. That on account of decedent's left foot being caught under the air pipe line he was caught by the rigging of the car and was thrown under the wheels and killed. The difficulty with plaintiffs theory in this case is that she has failed to prove facts from which the ultimate inferences which she wishes to establish can be drawn. She has merely suggested a series of presumptions many of which are not even con- sistent with facts proved in the case. The weakness in plaintiffs case is that she has no facts to show that decedent stepped in between the cars. She has no evidence to show that he at- tempted to come out from between the cars. She has no evidence to show that his left foot ever be- came fastened under the air pipe line at the point where the air pipe line was bulged or at any other point and she has no evidence to show that at any time he was any nearer than 15 feet from the nearest end of the bulge in the pipe. It is respectfully suggested that plaintiff has failed to prove that the alleged defective air pipe line proximately contributed to William Coogan’s death. $e REORDER 24 DecEDENT ASSUMED THE Risk CAUSED BY TITE Con- DITION OF THE AIR Pirge LINE AND CANNOT Re- COVER IN THIS CASE. The evidence is undisputed that decedent worked on trains running into and from the Farmington yards for a period of three or four months next preceding the accident and during that time his train left and arrived during daylight and he had considerable occasion to be on and near track No, 1. He had a great many opportunities to observe the condition of the air pipe line. He had had con- siderable experience on trains running in and out of the Farmington yards prior to the period just above mentioned. The air pipe line had been in substantially the same condition for a period of at least five or six months before the accident and he is of course presumed to have known of its location and condition. If he went in between the caboose and car next to the caboose as plaintiff claims he went in with a knowledge of the condition of the air pipe line in question, he, of course, fully appreciated — the dangers and risk of his working between the cars in the vicinity of the air pipe line and he must have appreciated the dangers to be reasonably an- ticipated in working at and about such air pipe line at the point where it was bulged. Special attention is called to the case of Southern Pacific Co. vr. Berkshire, 254 U.S. 415, 4b Sup. Ct. Rep. 162. In the Berkshire case the United States Supreme Court holds that an engineer who has ue . ee eee ~_ ERS AE TOUR DRE ENE ~ ee ee ee eo » on -~) passed over a particular route many times must be presumed to know of the existence of a mail crane when such mail crane was visible from the en- gineer’s seat. This case we consider of special im- portance on this feature of the case and we there- fore take the liberty of quoting rather extensively from it. On page 162, the court said: “The facts so far as made detinite by the evi- dence are not in dispute. Linder was employed by the defendant as an engineer upon a train running from El Paso, Texas, to Deming, New Mexico. At Carney, in New Mexico, he was found sitting on his engineer's seat unconscious, with his right arm and pretty nearly half of his body outside of the cab, leaning with the right side and arm over the arm rest of the en- gine. There was a cut about an inch over the right ear. He had been struck by the end of a mail crane or a mail sack that had been placed on it to be picked up by a mail train following Linder’s which was an extra carrying soldiers.” On page 163, the court stated as follows: “Linder has been upon this route for some years, has passed over it many times and must be presumed to have known of the crane. It Was Visible from the engineer's seat, half a mile ahead through a front window. About a mile hefore reaching Carney, Linder had noticed that the main driving pin on the engine was getting hot, had crept out upon the running board to see about it, and had returned. It may be supposed that at the time of the ac- cident he was leaning out of the side window to look at it again and was acting in the course of his duty. The position in which his body was first seen and the place of the wound indi- | 2 pe Tiwieaheies. re = oe RR WR PLO A NEE LALLA RAE EERE AN Taney 26 cate that le was more than fourteen inches out from the engine's side.” On page 163, the court further said: “It is going very far to leave it open to a jury to attach liability in fort to a system by which the end of the arms of postal cranes come to fourteen inches from the car. (3) But further, we must take it, as we have said, that Linder perfectly well knew of the existence of the crane where it stood, and could have seen it from his seat had he looked, long before he reached it. He entered the em- ployment of the railroad when it nad this ap- pliance manifest in its place. The only element of danger that he may not have appreciated wis the precise distance which the point of the crane would reach. But an experienced rail- road man cannot be supposed to have been ig- norant that such a projection threatened danger and, knowing so much, he assumed the risk that obviously would attend taking the chances of leaning well out from the train.” See also: Tuttle, Adm. ve Detroit, GoW. & M. Ry. (‘o,, 122 UL S. 189, 7 Sup. Ct. Rep. 1166, 30 °L. Ed. iit. Little Rock & M.R. Co. vr. Moseley, 56 Fed. 1009, The air pipe line in) question constituted a part of the equipment of the Farmington yard. If Linder in the Berkshire case was presumed to have known of the mail crane and to have known the danger to be expected therefrom, if seems clear that Coogan must be presumed to have known of the air pipe line and its condition and to have known the dangers to be expected therefrom by a Pi ak aie A Be 6 oa itl CS tod brakeman coupling up the air on track No. 1 from the south side of the train while cars were being kicked into and against said train. Ile, of course, knew that he might be required to get out from between the cars very rapidly and that any obstruc- tion might be fatal. Of course, it should be kept in mind that it was the duty of the head brakeman to couple up the air and not the duty of decedent. We submit that the reasoning of the United States Supreme Court in the Berkshire case is ap- plicable and controlling in the present case on the question of assumption of risk and that it appears as a matter of law that Coogan assumed the risk of the method of construction and condition of the air pipe line in question and that such as- sumption of risk under the Federal Employers’ Lia- bility Act prevents a recovery on behalf of the plaintiff in this case. It is, of course, regrettable that no one knows the manner in which Mr. Coogan met his death and it is indeed unfortunate that the plaintiff is not in a position to show the manner in which her husband met his death in order that the court may be in a position to decide whether or not the defendant com- pany was or was not responsible for such death. However, as indicated in the Patton and other cases mentioned above, juries should not be per- mitted to substitute sympathy for evidence in ar- riving at verdicts, The manner in whieh Coogan met his death and the proximate cause thereof is purely specula- tive and conjectural and the plaintiff has failed to se eee ae ie % --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0505%3A2. Public record. Not legal advice.