Petitioners Brief — New York Central R. Co. v. Ambrose

bis SOT he Bi Glad ' Office Supreme Court, Us S.

: ae tes , arnt pone Soe ‘eh FIL tk, uD

ap eee to . 1s

| eG cums a

SUPREME Fenn OF THE onrtan Stare —

ve"

. ; . hy i \

, \ ‘6 er Sh ; Te » Bs

a ! ; 4 Ry he. ‘ \ 4

Ly [ i? ey, ws Ae > ’

yet . oO. a eth

TY Ne ; . " eo ‘te Me ge

‘ {bs " hy 7 ~ :

3 \ ; , ra rf . , : J Y

4

‘; 5 ¢ ‘ ' ; . " , WZ ‘ ory t

‘ Hy ot : ¥ e 5 a 4 , ° Lf :

(J _NEW yoRE. CENTRAL ‘RAILROAD COMPANY,

ed We pre’ 4 Dhue cy

, as A pA ‘ A ~ v4 a a “

DAS ANE atte eee aa v8. Pe RM CORNER 6s F

: * s y , af } " € f > + 0.3 or

i Skvronta sippvoan’s ks a hshembieraateie oF THE |

nis or J OnN.AMBROSE, ach aM Regpoxpawt. | \

‘ H :

\, ‘ a : ‘| uf °

i AM 4 2 ‘

. f "4 5 , re ¢ & ? ‘

be : yi C3 aps Bas od Ae i ye)

; ()\\¢!-" OM WRIT) OF OBRTIORARL ' NARS Cou

: ; ; .* . * me ; 3 fe A . } by ‘ \ P ‘4 ys

4 oe . om iy * 9 \ ; = A ale! N ae

¢ ’ Wy hes g. os hE sen ay 2 hes" Co #

Ya ee aRrEr Yon PETITION. CRIME Se?

‘ : ve i. ¢ i ; ‘ (i 7 yA ' 5 id ‘ a’

Ary i, ' ‘ \¢ My i q Ye aoa ; ¥ yh K >} ,

Pate. Shad : Ne ; : A, + eee

eB LING me ERT. ‘WALL,- cae ee)

Py 4h JOHN’ A, HARTPENGH;. ‘

gaan Nid is hy ey 4g p Commas fee E Petitioner. ay

ij H fy SS ‘ at 2

bul & » h = .% * t: a ‘ , rs

Re PON 5 ie Me A Naw fe st aN

\y pj oe \U a 1 Sa ag" ° Y Pe,

© iiss ¥ ae : s P

, ‘ ‘ te ~ >

); ' Via re we ‘ , : *%

by wn Y bg *” ye By f Py P L %

INDEX.

Supsect INpDEx.

Page

Dates:

Of judgment sought to be reviewed (February 4, 1929)... 1

Of application for writ of certiorari (April 29, 1929)...... 2

Of aliowance of writ of certiorari (May 27, 1929)........ 2

I 5 hans Wind thine eek nh ASS EGE Ws een ur OE eee ema Gee 2

CD Rw kcei 6206068 andes wes one tise cee eeeNaes 3

Grourds of jurisdiction of this court...................0.0.. 4

Ge SEDs ic. cewnsvdanvetdabe den bebws pacesbeeheGenen 5

Pertinent facts leading up to accident...................00.. 6

Point I. No negligence was established against petitioner. 11

Point II. Respondent was not engaged in interstate com-

DRED 6c 6ucasen ces cade coneurscvesndewhewess 19

Point III. Decedent’s death was due to his own negligence. 23

AUTHORITIES CITED.

Alvino vs. Public Service Ry. Co., 97 N. J. L., 526............ 15,17

Adriance vs. Palisade Realty, &c., Co., 95 N. J. L., 185........ 16

Baltimore & Ohio Ry. Co. vs. Groeger, 266 U. S., 521.......... 19

Chicago, M. & St. P. Ry. Co. vs. Coogan, 271 U. S., 472...... 4,15,18

rr : Ca. is Mn kwc pause oceeenceceeesaucat 2

ae. Oe UR. Waeien, S06 GB. GB, BOO. ccccescccvvccescuces 18

ee aes WL Wee, See We OB, GO onc cccsewccccccscencece 20

Gulf, M. & N. R. Co. vs. Wells, 275 U. §&., 455................ 4,19

Harbor vs. Jenkins Rubber Co., 72 N. J. Law, 171............ 21

Harris vs. U. S. S. Co., 75 N. J. Law, 861..........cccccccese "2

Krysiak vs. Penn. R. R. Co., 270 Fed., T58........cccscccces 21

Manning vs. John Hancock, &c., Ins. Co., 100 U. S., at p. 697.. 13

Minneapolis & St. Louis Ry. Co. vs. Winters, 242 U. S., 353.. 21

Missouri Pacific R. R. Co. vs. Aeby, 275 U. S., 426.......... 4,18

McComb vs. Public Service Ry. Co., 95 N. J. Law, 187........ 16

mee we. Gluceee Os., GB I. J. Law, GBD. . ccccwccvccccccvccses 23

Gio va. Eade BR. Co, OP HM. J. Taw, GiB. ...ccccvcccccvccccces 18

Price vs. N. Y. Central R. R. Co., 92 N. J. Law, 429..........

Patton vs. Public Service Ry. Co., 227 Fed., 810..............

—9331

ll INDEX.

Seaboard Air Line Ry. Co. vs. Horton, 233 U. S., 492.......... 18

Toledo, St. Louis & Western R. Co. vs. Allen, 276 U. S., 165. 4,18, 19

Unadilla Valley Ry. Co. vs. Caldine, Adm., decided by U. S.

Supreme Court December 10, 1928, reported 73 Law Ed.,

Adv. Opinions, December 15, 1928, p. 102..............005- 23

Western & Atlantic R. R. Co. vs. Hughes, U. S. Supreme

Court, decided February 18, 1929, 73 Law Ed., Adv. Opinions,

RG Si FS Ee 0:5. 6 0s Nene boN50 e065 6400019905654090% 19

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1929.

No. 73

NEW YORK CENTRAL RAILROAD COMPANY,

PETITIONER,

vs.

ANTONIA AMBROSE, as ApMINISTRATRIX OF THE

Estate or JoHN AmBrosk, Decreased, RESPONDENT.

ON WRIT OF CERTIORARI.

BRIEF FOR PETITIONER.

On May 6th, 1928, the respondent recovered judg-

ment against petitioner in the Circuit Court of Hudson

County, New Jersey, and the Court of Errors and

Appeals, the highest Court of that State, affirmed the

judgment on February 4th, 1929, solely by reason of

la

2

the equal division of that Court, six Judges voting to

affirm and six to reverse. Because of the equal divi-

sion of the appellate court no opinion was possible

(R., p. 80, fol. 99 to p. 82, fol. 102; N. J. Advance Re-

ports, Vol. 7, p. 347).

Upon affirmance of the judgment the record was re-

mitted to the trial court. Petitioner filed its petition

in this Court for a writ of certiorari on April 29th,

1929, and the writ was granted May 27th, 1929 (R.,

p. 82, fol. 103).

This action was brought under the Federal Employ-

ers’ Liability Act to recover damages for the death of

John Ambrose, Senior, respondent’s intestate. His

death was caused by an accident in a grain elevator

operated by petitioner at Weehawken, New Jersey.

Petitioner is a common carrier, and as such it is

engaged in interstate and intrastate commerce. It

transported to the elevator in question, over railroads

operated by it, shipments of grain, all of which origi-

nated outside the State of New Jersey. Some of the

grain brought to the elevator was stored in storage

bins and thereafter shipped to points outside the State

of New Jersey, and some (a very small part) to points

within that State (R., p. 55, fol. 62).

The Issue.

The charge against petitioner is that, without warn-

ing or notice to decedent, petitioner negligently and

carelessly used certain poisonous gases in the elevator

where decedent was employed; that while he was there

engaged in interstate commerce he was overcome by

3

these gases, was thereby caused to fall into a shaft,

and was killed (R., p. 1, fol. 2).

(The ‘‘shaft,’’ so called in the complaint, is grain

bin No. 81 in petitioner’s elevator, in which decedent’s

dead body was found.)

Petitioner denies that at the time of the accident

decedent was engaged in interstate commerce; denies

the negligence complained of and alleges that dece-

dent’s injuries were occasioned by his negligence and

his violation of petitioner’s orders in going to the place

where the accident happened, when it was obviously

dangerous so to do (R., p. 2, fol. 3).

Errors Relied On.

At the close of plaintiff’s case defendant moved for

a nonsuit, and at the close of the entire case moved

for a directed verdict in its favor. The trial court er-

roneously overruled both motions (R., p. 55, fols. 62-63 ;

p. 64, fol. 72). These errors were stated as grounds of

appeal (R., p. 78).

The motions so erroneously overruled were in part

based upon the following grounds:

1. That at the time of the accident decedent was

not engaged in interstate commerce.

2. That no negligence had been established against

petitioner.

3. That the injuries resulting in decedent’s death

arose out of his own negligence.

4. That at the time of the accident decedent was

not acting within the scope of his employment.

4

5. That decedent’s injuries arose out of his dis-

obedience of petitioner’s orders.

(R., p. 55, fols. 62 and 63; p. 64, fol. 72.)

In this Court petitioner relies on these errors as

grounds for reversal.

Grounds of Jurisdiction of This Court.

1. The Court of Errors and Appeals of New Jersey

has decided federal questions of substance in a way

probably not in accord with applicable decisions of this

Court, to wit:

(a) The State Court erroneously decided that the

evidence warranted a finding of negligence on the part

of petitioner.

(b) The State Court erroneously decided that the

evidence warranted a finding that at the time of the

accident decedent was engaged in interstate commerce.

(c) The State Court erroneously decided that the

evidence warranted a finding that decedent’s death was

not due to his own negligence.

2. Among the cases sustaining the jurisdiction of

this Court, are:

Missouri Pacific R. R. Co. vs. Aeby, 275 U. S.,

p. 426.

Toledo, St. Louis € Western R. Co. vs. Allen,

276 U. S., p. 165.

Chicago, M. & St. P. R. Co. vs. Coogan, 271

U.S., p. 472.

Gulf, M. dN. R. Co. vs. Wells, 275 U. S., p. 455.

Summary of Facts.

Deecedent had been employed by petitioner in its

elevator at Weehawken for more than six years (R.,

p. 4, fol. 6). He worked on the ‘‘bin floor,’’ a cement

floor 300 feet long by 130 feet wide (R., p. 31, fol. 35).

This floor covers'the tops of the 291 grain bins in the

elevator, of which 268 are storage bins and 23 are ship-

ping bins (R., p. 59, fol. 66). In this floor are circular

openings 17 inches in diameter into which are inserted

the grain spouts or trollies which carry the grain into

the bins. Access to these bins, when necessary, is had

through rectangular manholes, 20 inches by 16%4 inches

in size (R., p. 45, fols. 50-51). These manholes are

located at the corners of the bins and across these cor-

ners are bolted iron bars which serve as the rungs of

ladders reaching from the top to the bottom of the bins.

These openings into the bins are covered with metal

covers, which, when in place, rest on shoulders or

flanges in the cement floor, and are level with the floor.

Exhibit P-2 (R. opposite p. 78) is a photographic

view looking down from an opening in the bin floor into

bin 81, where decedent’s body was found.

Exhibit P-3 (R. opposite p. 79) is a photograph of

a portion of the bin floor including the part which

covers bin 81. This photograph shows the three cir-

cular spout holes of that bin with the covers removed,

and the rectangular manhole with its cover on.

Bin 81 is about 85 feet deep (R., p. 9, fol. 11).

2a

6

The grain is drawn out of the bin from an opening

in the bottom (R., p. 7, fol. 9).

Dillworth was the foreman in charge of the bin floor

(R., p. 4, fol. 5).

In general, decedent’s duties were to sweep the floor

and assist in setting spouts for the transfer of grain

into the bins (R., p. 5, fol. 6; p. 17, fol. 20) and to do

such other ‘‘floor work’’ as might be assigned to him

by his foreman (R., p. 18, fol. 21). There were times

when the grain would become clogged in the bins when

it was being drawn off so that all of it would not run

out. When that happened one of the sweepers would be

sent into the bin by the foreman, or by order from the

office, to clean it out. At the same time another man

at the opening on the bin floor would lower a drop light

into the bin and manipulate it so that the man in the

bin could see to do the work. Only when the grain

became clogged in the bins did the sweepers go in to

clean them out, and then they were allowed to go in

only when ordered to do so (R., p. 5, fol. 6; p. 13, fols.

15-16; p. 27, fol. 30; p. 28, fol. 31). The majority of

the bins were self cleaning, and it very rarely happened

that men were sent in to clean them (R., p. 30, fol. 34).

The pertinent events leading up to the accident are

as follows:

On Tuesday, July 12, 1927, a Mr. Hubbell, represent-

ing the Air Reduction Sales Corporation, requested

of Mr. Shanahan, the superintendent of the elevator,

the use of a bin in the elevator with some grain to

experiment with a preparation for the extermination

of insects (particularly boll weevil) in grain (R., p.

7

22, fol. 25). The proposed experiment consisted of

mingling a powder with the grain as it was run through

the grain spouts into the bin. When in the bin the

moisture in the grain coming in contact with the powder

produced a gas which permeated the grain and was said

to kill the weevil (R., p. 24, fol. 27).

Not having received any instructions from his su-

perior, Shanahan asked if Hubbell had permission to

make the experiment. Being informed by Hubbell that

he had experimented in other elevators and receiving

Hubbell’s promise that he could and would procure

letters from petitioner authorizing the experiment,

Shanahan permitted Hubbell to proceed. Hubbell

never produced the promised letter, and petitioner

never in fact consented to the experiment (R., p. 22,

fol. 25; p. 24, fol. 27).

Although Shanahan had full charge of the ordinary

business operations of the elevator, he had no authority

to authorize experiments by outside parties for their

own purposes (R., p. 21, fol. 24; p. 31, fol. 35).

The grain experimented with was taken from stor-

age bin 208 and run into storage bin 81 (R., p. 12, fol.

15; p. 56, fol. 64). As the grain passed through the

spouts the powder was mingled with it (R., p. 24, fol.

27). There were no weevil in this grain and for the

purpose of the experiment 40 small bags containing

weevil were dropped at intervals into the grain as it

passed into the bin (R., p. 23, fol. 26). This opera-

tion was completed on Tuesday afternoon, July 12 (R.,

p. 23, fol. 26; p. 25, fol. 28). The openings to the bin

were covered, but the covers were not sealed (R., p.

24, fol. 27).

8

The treatment of this grain was solely for the pur-

pose of the experiment and was not at all for preparing

it for shipment. It needed no preparation, for there

were no weevil in the grain except those put in by

Hubbell for the experiment (R., p. 25, fol. 28; p. 57,

fol. 64). “

On Friday afternoon, after the grain had been in

the bin 72 hours, it was drawn off from the bottom of

the bin (R., p. 7, fol. 9; p. 18, fol. 20). As it was drawn

off, the bags containing weevil were recovered for ex-

amination to ascertain the result of the experiment.

One of the 40 bags was missing and Dillworth, the

forman of the bin floor, was asked to open the bin and

look for the bag. He removed one of the covers, low-

ered a droplight into the bin and looking through the

opening discovered the bag lodged at a crossing of

tie rods, about 5 or 6 rungs of the ladder from the

bottom of the bin (R., p. 18, fol. 16; p. 17, fols. 19 and

20; p. 26, fol. 29). When Dillworth looked for the bag

Ambrose, the decedent, was with him, and also looked

into the bin. As Dillworth was bending over the open-

ing looking for the bag he noticed an odor of gas. He

told decedent to keep away from the bin as much as

possible—not to hang around it; that he would not

trust the stuff (meaning the gas), and that the gas was

poisonous (R., p. 14, fol. 16; p. 15, fol. 17; p. 16, fol.

19; p. 60, fol. 68; p. 61, vol. 69). Neither Dillworth nor

decedent was materially affected by gas in thus open-

ing and examining the bin.

On Saturday morning, July 16, at about 8 o’clock,

Dillworth, Fitzpatrick, and decedent went to work as

9

usual on the bin floor (R., pp. 20-21, fol. 23). These

three were the only persons working on that floor that

day (R., p. 12, fol. 14; p. 60, fol. 68). At that time

all the covers were on the openings of bin 81 (R., p.

15, fol. 18). Fitzpatrick and decedent went to sweep-

ing the floor. When decedent was last seen alive by

either Dillworth or Fitzpatrick, he was sweeping.

Fitzpatrick was working about 100 feet from bin 81

when he last saw decedent (R., p. 6, fol. 8; p. 19, fols.

21-22).

Dillworth went from his ‘‘shanty’’ on the bin floor

to the first floor. When he returned to the bin floor

all the covers were on bin &1 (R., p. 10, fol. 12). He

went into his shanty and in about twenty minutes or

more he heard a noise as of ‘‘something hitting.’’ He

went outside his shanty and saw that the cover of one

of the spoutholes and the cover of the manhole of bin

81 were off, and that,the cord of an electric droplight

was hanging through the spouthole. He went to the

bin, looked in, and saw decedent’s body at the bottom.

This was between 9:45 and 10 o’clock (R., p. 6, fol. 8 to

p. 7, fol. 9; p. 8, fol. 10 to p. 10, fol. 12; p. 11, fol. 13 to

p. 12, fol. 15; p. 44, fol. 50).

There was no stoppage or clogging of grain in bin

81; it ran out clean. There was nothing in the bin ex-

cept the little bag of weevil. It was not necessary to

remove it, and neither Hubbell nor petitioner desired

its removal. Nothing was ever done to remove it.

(R., p. 14, fol. 17; p. 15, fols. 17-18; p. 18, fol. 20; p.

26, fol. 29; p, 27, foi. 31).

10

Neither Dillworth nor Fitzpatrick removed the cov-

ers from bin 81 or lowered the droplight into that bin

on the morning of the accident. They, with decedent,

were all the workmen on the bin floor. Decedent was

the only one who could Lave done this (R., p. 12, fol.

14; p. 60, fol. 68; p. 61, fol. 69; p. 62, fol. 70).

Dillworth did not direct decedent to enter the bin

and did not know he was going to enter it (R., p. 14,

fol. 16). On the contrary, as already pointed out,

the undisputed evidence is that Dillworth repeatedly

warned decedent to keep away from the bin, because

the gas was dangerous.

On the morning of the accident no one requested or

directed decedent or anyone else to do anything what-

soever with respect to bin 81. That bin was neither

used nor intended to be used for any purpose on that

day (R., p. 56, fol. 64; p. 57, fol. 65; p. 59, fol. 67;

p. 63, fol. 70).

Dillworth, Fitzpatrick, and decedent, the only work-

men employed on the bin floor, worked on that floor

every day from Tuesday afternoon until the accident

happened, about 9:45 o’clock Saturday morning—

more than 34% days—without being affected or incon-

venienced at all by the gas except on Friday afternoon,

when Dillworth removed one of the covers from bin 81

and bent over the opening looking for the missing bag

(R., p. 61, fol. 69). Then he noticed an odor of gas

and had a ‘‘sort of headache’’ (R., pp. 59-60, fol. 67;

p. 62, fol. 70).

On Saturday morning, Dillworth first noticed that

the covers were off bin 81 after he heard the noise as

11

of ‘‘something hitting.’’ He had given no orders to

remove these covers (R., p. 16, fol. 18). Immediately

after that he discovered decedent’s body in the bin.

Point I.

No Negligence Was Established Against Petitioner.

1. Petitioner did not authorize the experiment in

which poisonous gas was used.

Hubbell deceived Shanahan and induced him to be-

lieve that petitioner had authorized or would approve

the experiment. This was untrue.

While it appears that Shanahan was superintendent

of the elevator and was in full charge of its ordinary

business operations, there is no evidence that his au-

thority extended to permitting experiments of the

character performed by Hubbell, which had no rela-

tion whatever to petitioner’s business, and Shanahan

disclaims any such authority (R., p. 31, fol. 35). The

grain was not infected, and without special authority

he had no more right to permit such an experiment

than he had to sell the elevator.

Not having authorized the experiment, petitioner

is not liable for any results flowing therefrom.

2. Even if petitioner be held responsible for per-

mitting the experiment, there was no negligence, The

powder which was mingled with the grain harmed no

one. The gas which was generated in the bin was

equally harmless so long as the bin remained covered.

This is demonstrated by the undisputed fact that the

12

three men who worked on the bin floor, of whom dece-

dent was one, performed their usual work on that floor

from the time the grain treated with the powder was

run into the bin, on Tuesday afternoon, until 9:45

a. m. on Saturday, more than 3% days, without the

slightest injury or inconvenience from the gas (R., pp.

59-60, fols. 67 and 68; p. 62, fol. 70). Decedent was

perfectly safe in the performance of his work so long

as the bin was kept closed. On Friday afternoon,

after the grain had been run out of the bin, Dillworth,

looking for the missing bag, had removed a cover and

he and decedent had both looked into the bin. Dill-

worth certainly, and doubtless decedent, when looking

for the bag, had bent over the opening (R., p. 61, fol.

69). While the odor of the gas was quite noticeable,

the effect upon them was slight (R., p. 60, fols. 67-68).

What had changed decedent’s situation from one of

entire safety to one of danger? Nothing but the re-

moval of the covers from a spouthole, and from the

manhole of bin 81, and doubtless decedent’s entry into

the bin. But the removal of the covers was not the

act of petitioner, for neither Dillworth nor Fitzpat-

rick removed them, nor saw anyone remove them (R.,

p. 60, fol. 68; p. 61, fol. 69; p. 62, fol. 70). Twenty

minutes before the accident both these covers were on

(R., p. 10, fol. 12). These two men and decedent were

the only persons employed on the floor at the time

(R., p. 12, fol. 14; p. 60, fol. 68). Entering the bin was

not only his voluntary act, but was wholly unnccessary,

contrary to orders, and in spite of repeated warning

(R., p. 13, fols, 15-16; p. 27, fol. 30; p. 14, fol. 16; p. 16,

13

fol. 19; p. 60, fol. 68). Petitioner did nothing to en-

danger decedent or render his place of work unsafe.

It is no answer to say, as was urged in the state

courts, that these covers might have been displaced

while decedent was sweeping over them, or that he

might have been overcome by the gas while attempt-

ing to adjust them. The reasoning in support of each

of these suggestions involves a presumption upon a

presumption, which is not permissible. Where cir-

cumstantial evidence is relied upon, the circumstances

must be proved, they cannot be presumed. Price vs.

N. Y. Central, 92 N. J. Law at p. 432; Manning vs.

John Hancock Mutual Life Ins, Co., 100 U. 8. at p.

697; Chicago, &c., R. R. Co. vs. Coogan, 271 U.S. at

p. 477. True, in sweeping the floor, the men swept

right over the manhole covers (R., p. 19, fol. 21). But

there is no evidence that decedent was sweeping over

the covers of bin 81 just prior to the accident. The fact

that the sweepers at times swept over the manhole

covers does not warrant a presumption that decedent

swept over these particular covers on the morning of

the accident. The suggestion that he did is mere con-

jecture, for no one saw what he was doing after about

9 o’clock (R., p. 6, fol. 8; p. 60, fol. 68). Even if the

evidence warranted a presumption that decedent swept

over these covers on the morning of the accident, it

is not permissible to base on that presumption the fur-

ther presumption that in so doing the covers were dis-

placed, nor would it be permissible to draw from those

two presumptions (if they existed) a third presump-

tion that the cover being thus displaced, decedent was

14

overcome by escaping gas and was caused to fall into

the bin. Had he been overcome while sweeping, he

would have fallen on the floor. It is inconceivable

that he would have fallen in such position as to pass

through a spouthole only 17 inches in diameter or a

manhole only 16%4 by 20 inches (R., p. 45, fols. 50-51).

There is no evidence whatever that either of these

covers had become accidentally displaced. On the

contrary, both were in place about 20 minutes before

the accident (R., p. 10, fol. 12). There being no evi-

dence of the accidental displacement of the covers,

there can be no presumption that decedent was over-

come while attempting to replace them. But the evi-

dence absolutely negatives every one of the suggested

presumptions. Photograph Ex. P-3 (opposite R. p.

69) shows how these covers are set into the cement

floor and rest on shoulders so that they are level with

the floor. It is apparent that it would be impossible

to displace them from their position by sweeping over

them. Add to this the undisputed faets that a drop-

light had been lowered into the bin; that neither of de-

cedent’s coworkers on that floor had displaced the

covers or lowered the droplight, and the conclusion is

irresistible that decedent himself had removed the

covers, lowered the droplight, and entered the bin, and

thereby had caused the accident, which otherwise

would not have occurred (R., p. 60, fol. 68; p. 61, fol.

69; p. 62, fol. 70). Putting the case as strongly as pos-

sible for respondent, this conclusion is at least quite

as probable as any suggested by respoudent. In that

posture of the case the judgment should be reversed.

15

Alvino vs. Public Service Ry. Co., 97 N. J. Law at p.

527.

There was no need for decedent to remove the covers

from the bin or to enter it. There was no clogging of

the grain in the bin; all ran out. The bin was entirely

empty save for a little bag of weevil (R., p. 6, fol. 7; p.

14, fol. 17; p. 18, fol. 20). It was wholly unnecessary

to remove this little bag. It is no way interfered with

the use of the bin and neither Shanahan nor Hubbell

desired its removal (R., p. 15, fol. 17; p. 26, fol. 29).

The rule of the floor was that none of the workmen

should enter the bins unless ordered to do so by the

foreman of the floor or the superintendent (R., p. 13,

fols. 15-16; p. 27, fol. 30). Dillworth, the foreman,

had not ordered decedent to enter the bin (R., p. 14,

fol. 16). On the contrary, he had specifically ordered

him to keep away from it and had warned him that

the gas was poisonous (R., p. 14, fol. 16; p. 16, fol.

19; p. 60, fol. 68). In entering the bin without orders

from his superior he violated the rule of the floor and

the express order to keep away from the bin. He also

disregarded the warning that the gas was poisonous.

3. There was no eyewitness to the accident; the evi-

dence fails to disclose how it happened. What place

he fell from, what he was doing at the time, and what

caused him to fall are all left in the realm of specu-

lation and conjecture. Speculation and conjecture

cannot sustain the judgment. Chicago, Milwaukee &

St. Paul R. Co. vs. Coogan, 271 U. 8S. 472 (at p.

478), and cases cited.

16

In McCombe vs. Public Service Railway Company,

95 N. J. Law 187 (N. J. Court of Errors and Appeals),

an action was brought to recover for the death of one

Saunders, plaintiff’s intestate. His body was found

lying on the defendant’s track near midnight. He had

suffered injuries from which he died. The motorman

on the car following the one supposed to have injured

the decedent discovered the body lying on the rail of

defendant’s track. One leg and one arm had been cut

off, and the body was otherwise mangled. ‘‘There

were no eyewitnesses to the accident. No one saw

how it happened.’’ The court held that the facts

proved did not warrant a presumption of negligence

on the part of the defendant and said (p. 189):

‘*But the only presumptions of fact which the

law recognizes are immediate inferences from

the facts proved. Price v. New York Central

R. R. Co., 92 Id. 429. So, it has been said, mere

theories and inferences do not authorize a ver-

dict in a case of this nature, unless they are the

only conclusions which can reasonably be drawn

from the facts proven. Negligence is a fact

which must be shown. It will not be presumed.

There is always a presumption against negli-

gence.’’

In Adriance vs. Palisade Realty and Amusement

Company, et als., 95 N. J. Law 185 (N. J. Court of

Errors and Appeals), the plaintiff was riding in a

‘fracer’’ operated by the Amusement Company within

the boundaries of its park. With him in the car were

two companions. An iron bar was placed in front of

them and fastened to the car. Toward the end of the

17

second ride something happened and plaintiff ceased to

remember anything. One of his companions spoke to

him a few minutes before the accident. The next he

saw was that ‘‘the plaintiff was doubled up, bleeding.’’

Not one of the party saw the plaintiff struck or saw

how he was injured. The Court said (p. 186):

‘The facts disclose an injury which is ad-

mitted, but do not disclose how it happened and

no one gave any testimony on the point.’’

The Court also held that the maxim res ipsa loquitur

was not applicable. On page 187 the Court used the

following language:

‘*Tf there is no proof of any fact by which the

conduct of the defendant can be ascertained,

there is nothing for a jury to pass upon. Bahr

v. Lombard, Ayres & Co., supra.

‘*The only presumptions of fact which the

law recognizes are immediate inferences from

the facts proved. Price v. New York Central

R. R. Co., 92 N. J. Law 429.’’

In Alvino vs. Public Service Railway Company, 97

N. J. Law 526, suit was brought to recover for the

death of plaintiff’s intestate arising out of a collision

between a motorcycle and defendant’s trolley car. No

one testified to having seen or heard any collision. De-

cedent’s wife testified that she saw him riding in the

side car of the motorcycle. About a half hour later

she heard of his injury. There was testimony to the

effect that a motorcycle was found badly broken and

two men were found unconscious on the roadside. The

Court said (p. 529):

18

‘‘It may fairly be said from this testimony

an inference of fact could be drawn that there

was a collision between the motorcycle and the

trolley car; but, if so, how it happened or who

was responsible for the collision is left entirely

to conjecture. The record is silent on these

essential points.’’

To the same effect see:

Olsen v. Erie R. R. Co., 99 N. J. Law 485.

Patton v. Public Service Ry. Co., 227 Fed. 810

(C. C. A., 3d Circuit), at p. 812.

4. Under the Federal! Employers’ Liability Act,

negligence must be established against defendant,

otherwise there can be no recovery. Seaboard Air

Line R. Co. vs. Horten, 233 U. S., p. 492; Missouri

Pacific R. R. Co. vs. Aeby, 275 U. S. 426 (at p. 429);

Erie R. R. Co. vs. Winfield, 244 U.S. 170 (at p. 172).

5. This case is brought under the Federal Em-

ployers’ Liability Act and is governed by that act and

by the principles of the common law as applied in

the Courts of the United States. Missouri Pacific R.

R. Co. vs. Aeby, 275 U.S. p. 426 (at p. 429); Toledo,

St. Louis € Western R. Co. vs. Allen, 276 U.S., p. 165

(at p. 168).

6. This Court will examine the record and if found

as a matter of law that the evidence is not sufficient to

sustain a finding that the carrier’s negligence was a

cause of death, the judgment of the State Court will

be reversed. Chicago, M. d St. P. R. Co. vs. Coo-

gan, 271 U.S., p. 472 (at p. 474), and cases cited in that

19

opinion: Gulf, M. € N. R. Co. vs. Wells, 275 U.S., p.

455.

7. Not only did the respondent fail to fix negligence

upon petitioner, but the evidence affirmatively demon-

strated that it had been guilty of no negligence. Hence,

petitioner was entitled to a judgment of nonsuit, and at

the close of the case to a directed verdict.

8. Where there is but a mere scintilla of evidence,

the State Court, in actions brought under the Federal

Kmployers’ Liability Act, is required to follow the rule

established in the Federal Courts and order a nonsuit,

or direct a verdict for defendant.

Baltimore & Ohio R. Co. vs. Groeger, 266 U. S.

p. 521;

Gulf, M. @ N. R. Co. vs. Wells, 275 U.S. p. 455;

Toledo, St. Lows & Western R. Co. vs. Allen,

276 U.S. p. 165;

Western & Atlantic R. R. Co. vs. Hughes, Admz.,

decided by this Court February 18, 1929, 73

U. S. Law Ed., Advance Opinions, March 1,

1929, page 268.

Point II.

At ‘he Time of the Accident Decedent was not Engaged

in Interstate Commerce.

Whether in sweeping the ‘‘bin floor’’ decedent was

engaged in interstate commerce is immaterial. As we

have shown under Point I (pages 13, 15 and 16 of this

brief), his work did not require him to uncover bin 81

or enter it; on the contrary, by the rule of the floor

20

and by express order, he was forbidden to do so. In

addition, he had been repeatedly warned of the

poisonous nature of the gas. That he did remove the

covers, lower the droplight into the bin and enter it

is the only possible conclusion from the evidence, for

neither of the other employees on that floor did so.

The fact that the cover of a spout hole and of the man-

hole had been removed and that a droplight had been

lowered into the bin through the spout hole renders

any theory of the accidental removal of these covers

impossible of belief.

All of these facts and circumstances show conclu-

sively that decedent had abandoned his employment

in interstate commerce, had departed from the duties

required of him, and had voluntarily and unneces-

sarily entered into a place of danger where his duty

did not call him and from which his orders required

him to keep away.

If it be suggested that he entered the bin for the pur-

pose of removing the little bag of weevil, respondent’s

case is not aided, for there was no necessity whatever

to remove this bag from the bin.

In Erie R. R. Co. vs. Welsh, 242 U.S. 303, this

Court said (page 306) :

‘*By the terms of the Employers’ Liability

Act the true test is the nature of the work being

done at the time of the injury, and the mere ex-

pectation that plaintiff would presently be

called upon to perform a task in interstate com-

merce is not sufficient to bring the case within

the act. Illinois C. R. R. Co. v. Behrens, 233

U.S. 473, 478, 58 L. Ed. 1051, 1055, 34 Sup. Ct.

Rep. 646, Ann. Cas. 1914C 163, 10 N. C. C. 153.’’

21

To the same effect is Minneapolis & St. Louis R. R.

Co. vs. Winters, 242 U. S. 353.

In Krysiak vs. Penn. R. R. Co., 270 Fed. 758 (C. C. A.

Third Circuit), plaintiff’s intestate had been employed

in interstate commerce during the day and in leaving

his place of employment to go home chose a danger-

ous way instead of the safe way provided by his em-

ployers. While using that way he was injured.

The Court said (page 760) :

‘*At that moment, we think, Krysiak ended his

employment and lost the status of an employe in

interstate commerce. Later, when he was killed,

he was not engaged in his employer’s work, or in

an incident to it, but was engaged in his own

private concerns.”’

In Harbor vs. Jenkins Rubber Co., 72 N. J. Law 171,

plaintiff was returning to his place of work after the

noon recess. He entered the premises at a proper

place and was proceeding along a proper pathway

when his attention was called to something glittering

and he departed from that pathway for a distance of

about fifty (50) feet to pick up this object. While off

the pathway he was injured. Speaking of this devia-

tion, the Court said (at page 174) : ,

‘‘He was therefore neither working for the

defendant company at the time nor proceeding

to the place where he was to work with the in-

tention of resuming work. When he deviated

from the path, the use of which it might pos-

sibly be considered he was invited to make, he

lost the protection of such implied invitation

and became either a trespasser, or, at the most,

22

a mere licensee, to whom the defendant company

owed no duty except to abstain from willful in-

jury.”’

The judgment of nonsuit was therefore affirmed.

In Harris vs. U. S. S. Co., 75 N. J. Law 861, plain-

tiff decedent, a longshoreman, was assisting in unload-

ing a vessel. While thus employed, it became neces-

sary for him to have a shovel and he called to a co-

employee, whose duty it was to supply tools for the

longshoremen, to provide him with a shovel. Without

waiting for the shovel to be brought, decedent left his

place of work to procure a shovel for himself and while

doing so fell into a coal hole and was killed. The

Court said (at page 864) :

‘*When Harris, with such knowledge, of his

own volition and without the knowledge of the

defendant, departed from the safe place pro-

vided and occupied a dangerous place for the

purpose of getting a shovel which the defendant

was in the act of providing, he became either a

trespasser, or, at the most, a mere licensee, to

whom the defendant owed no duty except to ab-

stain from willful injury, unless his action was

justified by a custom of which the defendant

knew or ought to have known.”’

There being no proof of such a custom, a judgment

in favor of the plaintiff was reversed.

The burden is on respondent to prove that dece-

dent was engaged in interstate commerce at the time of

the accident. The record discloses nothing but specu-

lation and conjecture with respect to what he was do-

ing at that time.

23

Tested by the rule laid down in the foregoing cases,

at the time of the accident decedent was not engaged

in interstate commerce, or in any duty pertaining to

his employment, and petitioner was not liable for the

injuries sustained.

Pornt III.

Decedent’s Injuries and Death Were Due to His Own

Negligence.

For more than 3% days during the experiment and

after its completion decedent worked on the bin floor

in entire safety. Had he not, outside of his duties, and

in violation of his orders, uncovered the bin and at-

tempted to enter it the accident would not have hap-

pened.

In Davis vs. Kennedy, 266 U. S. 147, this Court held

that no recovery could be had under the Federal Km-

ployers’ Liability Act for the death of an employee

of the Railroad when his death was caused by his dis-

obedience of orders,

To the same effect see Unadilla Valley Ry. Co. vs.

Caldine, Adm’r, decided by this Court December 10th,

1928, reported in Law Edition December 15th, 1928,

page 102.

In Mehl vs. Glucose Co., 83 N. J. Law, page 630, the

Court said (at page 631):

‘*When an employer forbids his employee to

do a certain act in connection with the machine

on which he is working, and the employee, while

violating such prohibition, and as a result there-

24

from receives an injury, the employer is not

liable. Card v. Wilkins, 32 Vroom 296.’’

We respectfully submit that, for the reason stated,

the judgment should be reversed.

ALBERT C. WALL,

JOHN A. HARTPENCE,

Counsel for Petitioner.

(9331)