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

Supreme Court of the United States

October Term, 19%

No, 212

NEW YORK CENTRAL RAILROAD COMPANY,

Petitioner,

Vs.

DONATO MARCONE, as Administrator of the Estate

of Joseph Marcone, deceased,

Respondent.

CoCC——__—_—_—_—_—_—_—_—_—_—_—_—_—_-_—=—==[{[_—_—_—__—==>>>___==

On Writ of Certiorari

BRIEF FOR PETITIONER

{

Apert C. Watt, _

J Wri H. Caney,

Counsel for Petitioner.

2B W. TRAVER, Law Printer, 154 Nassau St., N, ¥. (Tel. Beekman %726)

INDEX

Subject Index

Of Judgment to be reviewed (February 4, 1929)...

Of Motion for Leave to File Petition for Rehearing

i Si Ce ass hie 6 sida eG vee babuw ans

Of Order for Return of Record (March 21, 1929). .

Of Order Denying and Dismissing Petition for Re-

EG BS |) an ae a

Of Application for Writ of Certiorari (July 1,

sy Son C'S cap wines pv dee Oude vs ©

ae fai 5 vk o hha a SEs aaa SEES CS

IN 2 Sih aie ee poe cases ase tee secession sees

.. Grounds of Jurisdiction of this Court...............

2 das > bin <a k gin bs4'5 54 0a dae Rea va

Re GCs gio k Ass k's 60d been heh o> ¥¥abe

2 I OE RWOMIONE ic ek eck ec ccc eee

Point I. No negligence was established against

als oa kG he co KW Oh a ARS OAK WD oles

(a) Alleged failure of petitioner to give

warning of movement of engine only ground of

negligence relied on by respondent or submitted

ER IED rg OS oeun ails wc as eeeun cece

ii

PAGE

(b) Warning to decedent by bell and whistle

WE NE so ois ne he ee ees ae ee 15

(c) Additional warnings were given....... 17

(d) Alleged premature moving of engine is

OE TH UN es no ee hk ek eee 18

(e) Judgment is based on speculation and

ORUNIG 55.5 Cicc te es ee HORE RE ek Sok k 99

Pornt IT. At the time of the accident, decedent was

not engaged in interstate commerce........... 7

Port III. Decedent’s death was due solely to his

negligence, and to his disobedience of orders... 3]

Authorities Cited

Alvino v. Publie Service Ry. Co., 97 N. J. L. 526...... 23

Adriance v. Palisade Realty, ete., Co., 95 N. J. L.185.. 28

Atlantic Coast Line R. Co. v. Davis, Admr., 279 U.

Ae nas wa ne ax Cae rss eee ee salen. as 30

Atlantic Coast Line R. Co. v. Driggers, Admrx., 73

U. S. L. Ed. 556 (Decided June 3, 1929)....... 26

Baltimore & Ohio Ry. Co. v. Groeger, 266 U.S. 521... 26

Chesapeake & Ohio R. Co. v. Mihas, 50 Sup. Ct. Rep.

esceeeee eee eoee eee eres eee ee eeee eee eee eee

ore eee eee eee ewe renee

Erie BR. Co. v. Welsh, 242 U. 8. 303... 2... 0. seen eee

Frese v. C., B. & Q. R. Co., 263 U.S. 1........5...6-.

ill

Great Northern R. Co. v. Wiles, Admr., 240 U. S. 444.. =

Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455.......... 4, 26

Harbor v. Jenkins Rubber Co., 72 N. J. Law 171..... 28

Harris v. U. S. S. Co., 75 N. J. Law 861.............. 29

Illinois Central R. Co. v. Behrens, 233 U.S. 473...... 27

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

NN sg N10 oad ESR IA Ka ks awe 30

Manning v. John Hancock, etc., Ins. Co., 100 U. S., at

ME pata Ras od ons eebaw hae ei eS ore bE KS 22

Missouri Pacific R. R. Co. v. Aeby, 275 U.S. 426..... 4, 25

McComb v. Public Service Ry. Co.,95 N. J. Law187.. 22

Mehl v. Glucose Co., 83 N. J. Law 630............... 33

Price v. N. Y. Central R. R. Co., 92 N. J. Law 429..... 22

Patton v. Public Service Ry. Co., 227 Fed. 810....... 24

Toledo, St. Louis & Western R. Co. v. Allen, 276 U.

SS ph areca pale enh Bracke ie Sepeeyr ake etres ane nag 4, 15, 25, 26

Unadilla Valley Ry. Co. v. Caldine, Adm., 278 U.

MR ke havea ee neo sa eesa oak ew diet es 32

Western & Atlantic R. R. Co. v. Hughes, Adm., 278

ic RR 5505s SOO a oe Fi OUR SEA een Oo aaa 26

IN THE

Supreme Court of the United States

October Term, 1924

No. 212

New York Centra Rarroap Com-

PANY,

Petitioner,

vs.

Donato Marcong, as Administrator

of the Estate of Joseph Marcone,

deceased,

Respondent.

On Writ of Certiorari

BRIEF FOR PETITIONER

This action was brought under the Federal Employers’

Liability Act to recover damages for the death of Joseph

Marcone, respondent’s intestate, an employee of petitioner.

He was killed at petitioner’s roundhouse at Granton, New

Jersey, being run over by the tender of petitioner’s engine

No. 3709, while that engine was being backed from Stall 8

of the roundhouse to the adjacent turntable, a distance of

68.3 feet (see Rx. D-1 opposite R. p. 120).

On May 7, 1928, respondent recovered judgment against

petitioner in the Circuit Court of Hudson County, New

Jersey (R. pp. 115-116), and on February 4, 1929, the Court

of Errors and Appeals, the Court of Last Resort of that

State, affirmed the judgment (R. p. 122) by a divided Court,

eight Judges voting to affirm and three to reverse (R. D.

125).

2

The opinion of the Court of Errors and Appeals (R. p,

120) is reported in New Jersey Advance Reports, Volume

7, No. 7, p. 318, and in 144 Atl. 635. The case has not other.

wise been reported.

On February 14, 1929, petitioner’s motion for leave to

file a petition for rehearing was granted, and the record

was ordered held in the Court of Errors and Appeals pend-

ing the determination of the application for rehearing.

Notwithstanding the order to hold the record, it was

inadvertently remitted to the Circuit Court of Hudson

County. Thereupon, on due notice, on March 21, 1929, the

Court of Errors and Appeals ordered the Hudson County

Cireuit Court forthwith to return said record to the Court

of Errors and Appeals, to be retained by that Court until

its further order (R. p. 123).

By order entered April 19, 1929, the Court of Errors

and Appeals denied and dismissed the petition for rehear-

ing (R. p. 123).

On July 1, 1929, petitioner filed its petition herein fora

writ of certiorari and by order entered October 21, 1929,

said petition was granted (R. p. 128).

The Issue

The negligence alleged in the complaint is petitioner’s

failure to use reasonable care to keep the locomotive No.

3709 under control; to give warning of the movement there-

of; to keep same in proper and suitable condition as to

brakes, appliances, etc., so it could be stopped by reason-

able care in time to avoid injury to the intestate of plain-

tiff; that petitioner did not use reasonable care to equip

said locomotive with suitable headlight or any headlight,

and did not use reasonable care to propel same at a safe

rate of speed (R. p. 1, fol. 2).

The answer denies all allegations of negligence, and, as

affirmative defenses, alleges that the injuries sustained by

decedent arose out of his negligence in going and standing

upon defendant’s railroad track at a time when it was un-

necessary, improper and obviously dangerous for him so

to do; that at the time of the accident decedent was a

mere licensee and at said time he was not engaged in inter-

state commerce (R. p. 2, fol. 3).

In the charge the Trial Court excluded from the con-

sideration of the jury all allegations of petitioner’s negli-

gence except the single charge that ‘defendant did not give

warning of the movement of this locomotive’’ {R. p. 108, fol.

118). The Court also instructed the jury that “‘if plaintiff

recovers, or is entitled to recover, he must recover because

he shall have made out by the greater weight of the evi-

dence the charge of negligence which he relies upon, that

is, that the defendant did not give warning of the move-

ment of this locomotive, and that that negligence was the

proximate cause of this accident. * * * If he has not made

4

that out, manifestly he ought not to have a verdict and the

verdict should be, under such circumstances, for the defen.

dant’’ (R. p. 109, fol. 119).

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 prob.

ably 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.

(ec) 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. vy. Aeby, 275 U. 8,

p. 426;

Toledo, St. Louis &d Western R. Co, v. Allen, 276

U. S., p. 165;

Chicago, M. & St. P. R. Co. vy. Coogan, 271 U.8.,

p. 472;

Gulf, M. € N. R. Co. v. Wells, 275 U.8., p. 455.

5

Summary of Facts

Plaintiff ’s intestate belonged to an inspection gang. This

gang engines and made minor repairs and adjust-

ments thereto. Siddell was its leader (R. pp. 62-63). After

the gang began work, Siddell was in full charge and he

alone gave directions to the men (R. p. 93, fols. 100-101).

Decedent had been a member of this night gang for

about a year. He had come from a similar day gang (R. p.

65, fol. 70; p. 93, fol. 100). The hours of work were from

7 P. M. to 3 A. M., with an intermission at 11 P. M. for

supper (R. p. 93, fol. 101).

Decedent was a box-packer and his work was to pack

journal boxes on the engines, removing the old packing and

replacing it with new, and when directed by Siddell, to fill

grease cups (R. p. 63, fol. 68; p. 65, fols. 70-71). His place

of work was confined to the Granton roundhouse (R. p. 66,

fol. 71).

At the time of the accident, the procedure with respect

to these engines was that after being inspected and as and

when needed for service, hostlers backed them out of the

roundhouse onto the adjacent turntable (See Ex. D-1 op-

posite p. 120). There they were turned and taken by the

hostlers to a water plug. One witness only testifies to the

distance from the turntable to the water plug, and he at

one time states the distance to be 300 feet and at another

time 300 yards (R. p. 23, fol. 26; p. 88, fol. 94).

The hostlers left the engines at the water plug and there

the engine crews took charge of them and put them into the

6

service to which they had been assigned (R. p. 23, fol. 26;

p. 88, fol. 94).

On the night of the accident engine No. 3709 had been

inspected and all work on it had been completed before

eleven o’clock P. M., or about four hours before the acei-

dent. Decedent then had nothing more to do that night on

that engine (R. p. 66, fol. 71).

In the usual course of the operations at the roundhouse,

hostler McGee, at about 2:30 A. M., backed engine 3709 out

of stall No. 8 of the roundhouse over track No. 8 toward

the turntable. While so doing, the tender of that engine

ran over and killed decedent.

On that night, prior to the accident, decedent had worked

on 14 engines, the last one was No. 3835 located on Track 7

(R. p. 63, fol. 68).

At about 2:15 A. M., all the inspection gang, except de-

cedent, had finished their work on engine 3835. Siddell had

some work to do outside the roundhouse at a place called

‘*the farm.’’ He told decedent to finish his work on engine

3835 and wait until he (Siddell) returned from the farm

(R. pp. 66-67, fol. 72). Siddell then took the other members

of the gang and went to the farm. He left the roundhouse

about 2:15 and returned about 2:35, or 2:40 (R. p. 64, fol.

69; p. 98, fol. 105).

When Siddell told decedent to wait his return from the

farm, that meant he should wait at the inspection wagon

where the men congregated at the end of their night’s work

and prepared to leave the roundhouse (R. p. 94, fol. 101;

p. 95, fol. 102).

7

The tools and supplies of the gang were carried on the

inspection wagon which was moved from engine to engine

as their work progressed, over a concrete floor about 10

feet wide, which extended in front of the engine stalls

around the entire circumference of the roundhouse. De-

ecedent’s tools and supplies were carried on this wagon (R.

pp. 67-68, fols. 72-73; p. 94, fol. 102).

When Siddell left for the farm and when he returned

the inspection wagon was on the concrete floor in front of

the engine stalls opposite the open space between tracks

7 and 8 (R. p. 94, fols. 101-102; p. 98, fol. 106). The inner

edge of the concrete floor is 82.3 feet from the rear of the

engine stalls (Exhibit D-1 opposite page 120).

When Siddell returned from the farm he went to the in-

spection wagon and began making out his report of the

night’s work (R. p. 90, fol. 97). Decedent was not there.

As soon as Siddell learned of the accident he took a torch

and examined engine 3835 to ascertain whether decedent

had finished his work. He found decedent’s work was all

done (R. p. 91, fol. 98; p. 65, fol. 70; p. 68, fol. 74). /

Siddell found all of decedent’s tools in their proper

place on the inspection wagon (R. p. 91, fol. 98). Evidently

decedent had placed them there after finishing his work on

engine 3835. No one else was there to do this. Siddell had

not assigned any work to decedent after he had finished his

work on engine 3835. He had no other work for him to do

that night (R. p. 68, fol. 74; p. 99, fol. 106).

Between the time Siddell left to go to the farm and his

return to the inspection wagon, decedent had nothing to do

on track 9 (R. p. 92, fol. 99).

8

Hostler McGee was called as a witness by plaintiff and

on direct examination he described in some detail his move.

ment of this engine (R. pp. 23 to 34). On cross-examination,

the witness gives a clearer, more detailed and more con.

nected statement of the movement of the engine in which

the sequence of events is much better presented (R. p. 47

to the middle of p. 53; pp. 54-55, fol. 59).

The substance of McGee’s testimony is that he came to

the roundhouse at about 2:20 a.m.; that he walked to the

rear of engine 3709 in stall 8. At that time no one was at

the rear of the tender. He then walked along the left hand

side of that engine to the front, adjusted the cylinder cocks,

passed in front of the engine and walked along its right side

to the rear. While on his way, he removed the chains which

blocked the main drive wheels. As he did so, he looked to

see if there were any obstructions there or anyone working

underneath it. He saw no obstructions and no one under-

neath or around the engine. He looked, but saw no one

working on the engine on track 7 or on track 9. He then

mounted 3709 on the right side, started the air compressor,

turned on the lights, consisting of headlight, cab lights and

rear light on the tender, about twelve in all. He then started

the bell which was rung continuously by compressed air.

After the air compressor had been operated from 5 to

7 minutes, he blew three blasts of the whistle. This was

the back-up signal, and indicated that the hostler was about

to back the engine on to the turntable. It was then the duty

of the turntable operator to set the table. Up to that time

the engine had not been moved.

When McGee crossed the turntable on his way to stall 8,

9

he told the operator he was going to bring out an engine on

track 8. The operator was then in the pit, cleaning it out

and oiling the rail. He replied that he would be ready

when the engine got to the turntable.

McGee blew three blasts of the whistle and started to

back the engine out, moving it about four miles per hour.

The turntable operator was still in the pit and did not set

the table. McGee stopped his engine with the rear of the

tender about thirty-five feet from the rear of the engine

stall and waited for the operator to set the table. When

the table was set, McGee again blew three blasts of the

whistle and again started the engine back toward the turn-

table, again moving it about four miles per hour.

Just before McGee started the engine, and during the

entire movement, he was looking backward along the track

and saw no one. As he sat in the cab, the tender cut off

his view of the track for about twelve feet. He looked for

men around the engine, but did not see anyone (R. p. 34,

fol. 37; p. 52, fol. 56).

After starting the engine the second time, McGee re-

ceived a stop signal from the turntable operator. He im-

mediately applied his brakes, got down from the engine

and discovered the body of decedent lying on the right side

of the tender, the legs and all of the body except the shoul-

ders being on the outside of the right hand rail of track 8,

adjacent to track 9. About half of the body was on the

turntable (R. p. 30, fols. 33-34; p. 32, fol. 35; p. 76, fol.

82; p. 78, fol. 84).

About an hour after the accident, McGee tried to locate

10

the place where decedent was hit. He found blood stains

about thirty feet from where the body lay, and about thirty.

two feet from the rear of the engine stall. He states that

the blood stains were between the rails (R. pp. 32-33, fol,

36) and on the right hand rail. They extended about thirty

feet from the turntable toward the roundhouse (R. p. 77,

fol. 83). He also saw marks along the outside of the right

hand rail of track 8, about thirty feet from the turntable,

These marks started right opposite the first of the blood

spots (R. p. 78, fol. 84).

Siddell, the gang leader, testified that he saw blood

stains on the right hand rail, and as nearly as he could

remember about fifteen or eighteen feet from the rear end

of the engine stall. He saw marks on the outside of the

ties as if something had been dragging. These marks were

from three to five feet towards the turntable from the place

where he saw the blood stains (R. p. 92, fol. 99). He also

saw a cap lying inside of the right hand rail of track 8,

about five or six feet toward the turntable from the place

where he saw the marks (R. pp. 92-93, fol. 100).

Bechtol, an employe at the roundhouse, learned of the

accident some time after it happened and went to the tur-

table. He says he saw the body of decedent underneath

the tender, lying on the turntable. The engine was then

standing still and he thought it was about three-quarters

of the way on the turntable (R. p. 8, fols. 9-10). He re-

moved the body from underneath the tender. Before he

removed it, it was lying on the right hand side across the

track (R. p. 9, fol. 11). He did not trace any blood stains.

He was looking for decedent’s lantern but could not find

it, but he did locate a cap about fifty feet from the body

11

and twelve to fifteen feet from the rear of the roundhouse.

The cap was between the tracks (R. p. 9, fol. 11).

He did not notice any part of the body outside the rails

(R. p. 15, fol. 18). The body ‘‘was coming from under the

truck toward the center of the tender’’ (R. p. 17, fol. 20).

Maloy, the turntable operator, set the turntable for en-

gine 3709. He did not set the turntable at the first signal

of three blasts of the whistle because he was cleaning out

the pit and oiling the rail (R. p. 56, fol. 61).

When McGee blew the second signal of three blasts he

was turning the table around (R. p. 57, fol. 62). After set-

ting the table, he gave the signal to back up. He was

watching the engine as it came back and noticed something

dragging, and gave McGee the stop signal. He looked to

see if the engine was off the track. Looking underneath

the tender he saw decedent’s body (R. pp. 57-58, fols. 62-63).

McGee crossed the turntable to go to stall 8, and as he

was crossing he told Maloy he was going to bring the en-

gine out on track 8. He heard the signal of three blasts

of the whistle, which was the back-up signal (R. pp. 58-59,

fols. 63-64). He also heard the engine bell ringing (R. p.

62, fol. 67). There was a tail light on the tank. When he

got out to set the turntable, the rear of the tender was

outside the doors of the roundhouse about three feet, and

he was standing on the turntable (R. p. 59, fol. 64).

After the engine stopped, he found the body of decedent

on the right hand rail of track 8. He locates the position

of the body by a cross on the diagram of the engine, Ex-

hibit D-1, between the first and second wheels at the rear

of the tender (R. p. 60, fol. 65).

12

The engine was moving very slowly—‘‘ About a nice

walk is all’’ (R. p. 61, fol. 66).

Both McGee and Siddell testified that none of decedent's

tools was found along track 8, where the accident happened,

They were all in place on the inspection wagon ready for

removal from the round house at the end of the eight-hour

period which would occur in about 15 minutes (R. p. 7,

fol. 83; p. 91, fol. 98).

Errors Relied On

At the close of plaintiff’s case, defendant moved for

judgment of non-suit, and at the close of the entire case,

moved for a directed verdict in its favor. Petitioner con-

tends that the Trial Court erroneously overruled both mo-

tions (R. pp. 74-75, fols. 80-81; p. 106, fols. 114-115).

These errors were stated as grounds of appeal in the

State Court (R. p. 117).

The motions so overruled were in part based on the

following grounds:

1. That at the time of the accident plaintiff’s intestate

was not engaged in interstate commerce.

2. That no negligence had been established against de-

fendant.

3. That the negligence alleged in the complaint had

not been established against defendant.

4. At the time of receiving the injuries resulting in

his death, plaintiff’s intestate was not acting in the scope

of his employment.

13

5. The injuries resulting in the death of plaintiff’s

intestate arose out of his negligence.

6. The proximate cause of the death of plaintiff’s in-

testate was his negligence.

7. The injuries resulting in the death of plaintiff’s in-

testate were received at a place where his duties to defen-

dant did not require him to go (R. pp. 74-75; p. 106).

In this Court, petitioner relies on these errors as

grounds for reversal.

SUMMARY OF ARGUMENT

1. No negligence was established against the petitioner.

2. At the time of the accident decedent was not en-

gaged in interstate commerce.

3. Decedent’s death was due solely to his own negli-

gence and to his disobedience of orders.

POINT I

No negligence was established against petitioner

As to petitioner’s negligence, the sole question submit-

ted to the jury was, Did defendant move engine 3709 with-

out warning to decedent (R. p. 108, fol. 118; p. 109, fol.

119) ?

14

The undisputed evidence is that the whistle was sounded

and the bell was rung just prior to the starting of the ep.

gine, and that the bell was rung by compressed air during

the whole movement (R. p. 26, fol. 29; p. 51, fol. 55; p, 69,

fol. 67). This conformed to the established system for

warning workmen in the roundhouse that an engine was t,

be moved (R. p. 39, fol. 42).

In its opinion the State Court said:

**As to the contention that there was no negli-

gence shown, the specific negligence alleged in the

complaint, and upon which the Court submitted the

ease to the jury, was that engine No. 3709 was moved

without warning in disregard of a posted notice that

it would be moved at three o’clock; that it was actu-

ally moved out of the roundhouse between 2:20 and

2:30 o’clock; and that the hour of its movefnent was

posted for the express purpose of apprising the

workmen when it would be moved. It seems to have

been established that a whistle was blown and the bell

was rung on the engine, but the evidence is that this

as a warning was inadequate because whistles and

bells were sounding ‘around there’ at all times. The

engine backed out of the roundhouse in advance of

the time posted with no one on its rear’’ (R. p. 121,

fol. 137).

But the question of the alleged premature moving of the

engine, or its movement in disregard of the time stated in

a posted notice, is not in this case. Both questions were

eliminated by the charge of the Trial Court by limiting the

question of defendant’s negligence to the single charge

that the engine was moved without warning to decedent.

15

The State Court concedes that the engine whistle was

sounded and the bell was rung before the engine was moved,

but finds that these warnings were insufficient because

‘‘whistles and bells were sounding ‘around there’ at all

times’’ (R. 121, fol. 137).

We submit that there is no evidence that these warnings

were insufficient, and that the Court was not justified in

determining that they were. Still less was the Court justi-

fied in holding that under the circumstances, backing the

engine out of the roundhouse without a guard on the rear

_permitted the jury to charge defendant with negligence.

The operating officials of the Railroad Company are far

better qualified to determine what constitutes adequate

warning than either witnesses or the Courts. A Railroad

Company must be allowed much freedom of choice in the

matter of providing safe working places for its employees.

This includes establishing a system of signals as a warning

of impending movements of its rolling stock. The principle

upon which the decisions in Toledo, St. Louis &€ Western

R..Co. v. Allen, 276 U. S. 165, and Delaware, Lackawanna &

Western R. Co. v. Koske, 279 U. S. 7, are based, are ap-

plicable to the giving of warnings in this case.

In Toledo, St. Louis € Western R. Co. v. Allen, plaintiff

was employed by the Railroad Company as a car checker.

He was obliged to perform his duties in a freight yard

where switching was going on.

At the time of the accident, he was checking a string of

cars on track 5 and was between that track and track 4. A

switching crew sent two cars by a flying switch along track

16

4 to the place where plaintiff was struck. The Trial Court

permitted the jury to find defendant guilty of negligence

if the space between tracks 4 and 5 was found to be go

narrow that when track 5 was occupied, plaintiff was in

danger of being struck by cars moving on track 4.

This Court said (p. 170):

‘The rule of law which holds the employer to

ordinary care to provide his employees a reasonably

safe place in which to work did not impose upon de-

fendant an obligation fo adopt or maintain any par-

ticular standard for the spacing or construction of

its tracks and yards. Baltimore € O. R. Co. vy.

Groeger, 266 U. S. 521, 529, 69 L. ed. 419, 424, 45 Sup.

Ct. Rep. 169. Carriers, like other employers, have

much freedom of choice in providing facilities and

places for the use of their employees. Courts will

not prescribe the space to be maintained between

tracks in switching yards, nor leave such engineering

questions to the uncertain and varying opinions of

juries.’’

In Delaware, Lackawanna & Western R. Co. v. Koske,

plaintiff was injured by jumping from a switch engine.

He landed in a shallow open ditch or trench which drained a

part of defendant’s yard, the ditch or depression being in

depth from 8 to 11 inches and in width from 8 to 24 inches.

This ditch being uncovered, it was charged that the place

of work provided for the plaintiff was not reasonably safe.

This Court said (p. 236):

‘There is no evidence that the open drain was

not suitable or appropriate for the purpose for which

it was maintained or that there was in use by defen-

Se

17

dant or other carriers any means for the draining of

railroad yards which involve less of danger to switch-

men and others employed therein. Defendant was

not bound to maintain its yard in the best or safest

condition; it had much freedom in the selection of

methods to drain its yard and in the choice of facili-

ties and places for the use of its employees. Courts

will not prescribe standards in respect of such mat-

ters, or leave engineering questions, such as are in-

volved in the construction and maintenance of rail-

road yards and the drainage systems therein, to the

uncertain and varying judgment of juries. Toledo,

St. L. & W. R. Co. v. Allen, 276 U. S. 165.”’

Had decedent been entitled to warnings in addition to

the ringing of the bell and the blowing of the whistle (which

we deny), the evidence discloses other warnings which were

ample to notify him that the engine was about to be moved.

When the hostler, McGee, boarded the engine, he set the

air compressor pump going immediately, and it continued

to operate until he left the engine after the accident. The

compressor made a noise which could be heard at least

30 or 40 feet. He next turned on the head light, cab lights

and rear light on the tender, about 12 in number, thus light-

ing up the whole engine. He waited until he got 50 pounds

air pressure before moving the engine. That took from

5 to 7 minutes, and he was on the engine 10 minutes with

the compressor going and lights on before he moved it (R.

pp. 26-27, fols. 29-30; pp. 50-51, fols. 54-55). The rear light

on the tender was a big light (R. p. 34, fol. 37; p. 62, fol. 67).

The engine lights are not turned on and the air com-

pressor is not started by the hostler until he is about to

move the engine (R. p. 51, fol. 55).

18

Decedent must have been close to the engine before it

started. Everything about it—compressor pump, bell,

whistle, lights, the hostler on board—all were plain indica-

tions that the engine was about to be moved. In the ab.

sence of the hostler, the compressor would not be working

nor would the lights be on (R. p. 51, fol. 55).

Being close to this engine, decedent could not have been

confused as to the source of the signals by bell and whistle,

or as to their well known meaning that the engine was about

to be moved. Furthermore, there is no evidence that

whistles were sounded or bells ringing on any nearby en-

gines at that time, certainly none were sounding or ringing

on engines on track 7 or 9 as no work was then being done

on either, and no workmen were near either.

As already pointed out, whether the engine was pre-

maturely moved or not was eliminated from the case by the

charge of the Court. Had it been in the case the evidence

does not sustain the conclusion of the Court below that the —

posted notice with respect to the movement of the engine

fixed the time for its movement out of the roundhouse at

3 o’clock. The evidence with respect to the time posted on

the blackboard is uncontradicted, and is to the effect that

the time there posted was the time when the engine crew

were to take possession of the engine at the water plu,

and not when the hostler was to back it out of the round-

house. The time thus posted, therefore, could not have

been any guide to the men working in the roundhouse as

to the time when the hostler would back the engine on to

the turntable.

The witness Weiss was first asked when the engine

would leave the roundhouse, and before that question was

19

answered, the form was changed and he was asked if the

record he produced showed when the engine was to be

taken out of the roundhouse. Evidently having in mind

the unanswered question, he replied, ‘‘Three o’clock in the

morning’’ (R. p. 20, fol. 23). Later he explained that the

time shown by the records he produced and testified from

was the time when the engine crew were ordered to depart

with the engine from the engine house: that his records

showed that time to be three o’clock A.M.; that he had no

record of the time it was to be backed out of the round-

house—that his records had nothing to do with the move-

ment of the engine out of the roundhouse on to the turn-

table (R. pp. 22-23, fol. 25).

The turntable is a part of the roundhouse. It is there-

fore quite true that the engine was to be ready to leave the

roundhouse in charge of the engine crew at 3 o’clock A. M.

Kelly, the Assistant Foreman of the Roundhouse, also

testified that the time posted on the blackboard was the

time the engine was scheduled to leave the yard, not when

it was to be taken out of the roundhouse (R. pp. 42-43, fol.

46).

McGee, the hostler, testified that ‘‘the crew was sup-

posed to get on the engine at three o’clock,’’ meaning the

engine crew (R. pp. 80-81, fol. 87).

The engine was not prematurely moved from the engine

stall, but was moved at the usual and customary time (R.

p. 100, fols. 107-108).

It was customary to back an engine out of the round-

house to the turntable a half hour or an hour before it was

scheduled to leave in the custody of the engine crew (R. p.

100, fol. 108).

20

The directions to hostlers not to take the engines out of

the roundhouse too early was to avoid congestion at the

water plug, where “he engines were taken in charge by the

engine crews, and had no relation whatever to the time

when they were to be moved out of the roundhouse (R. p.

46, fol. 49).

No one acting for defendant knew or had reason to sup-

pose that decedent was in a place of danger when the en-

gine was moved; hence, there was no duty to give him any

special warning or to exercise any special care for his pro-

tection, such as placing a guard on the rear of the tender,

as suggested in the opinion of the State Court.

In Chesapeake & Ohio R. R. Co. v. Mthas, 50 Sup. Ct.

Rep. 42, Mihas cared for switch lights along the railroad

right of way. While crossing the tracks to get his speed

ear which he used in his work, he climbed over a coal car

standing with others on a switch. While doing so, other

cars moving in a flying switch were driven against the

standing cars and he was injured.

The negligence complained of, among other things, was

that contrary to custom, this switching movement was per-

formed without warning. It appeared, however, that the

warning customarily given was for the protection of per-

E | sons unloading standing cars and that no duty of warning

was owed to plaintiff when crossing the tracks.

This Court said (p. 95):

‘There is nothing in the record to show that em-

ployees engaged in the switching operation knew or

had reason to believe that Mihas was in any posi-

tion of danger. In the absence of such knowledge

21

or ground for belief, they were not required to warn

him of the impending switching operation or to take

other steps to protect him. Toledo, St. L. & W. R.

Co. v. Allen, 276 U. S. 165, 173, 72 L. ed. 513, 517,

48 Sup. Ct. Rep. 215.”

The judgment cannot be sustained on a theory different

from that on which it was submitted by the Trial Court to

the jury. The charge of that Court having limited petition-

er’s negligence to the failure to give decedent warning of

the impending movement of the engine, the judgment can-

not be sustained upon the theory that the engine was pre-

inaturely moved.

Delaware, Lackawanna & Western R. Co. v.

Koske, 279 U. S. 7.

Not only were adequate warnings given to decedent but

within about ten minutes before the engine was moved,

careful observations were made all around and underneath

the engine to ascertain whether any workmen were around

it or whether any work was being done on it.

McGee approached the engine from the rear as it stood

in the engine stall, passed along the left side adjacent to

track 7 to the front of the engine, crossed to the right side,

walked down that side to the rear, removed the chains

blocking the drive wheels, looked underneath the engine,

walked to the rear on the right side and then returned to

the cab. No one was working on engine 3709 (R. pp. 47-50,

fols. 51-55), or on the engines standing on tracks 7 and 9

(R. p. 25, fols. 27-28; pp. 54-55, fol. 59; p. 89, fols. 95-96).

After this inspection, McGee entered the engine cab,

turned on the lights and set the air pump in motion. He

22

was on the engine about ten minutes before starting to

back it out. Dung the entire movement he was looking

backward towards the turntable and saw no one (R. p. 34,

fol. 37; p. 52, fol. 56). Evidently decedent came into a

position of danger after McGee had entered the engine cab,

After he had entered the cab, everything about the engine

clearly indicated that it was soon to be moved.

Petitioner had performed every duty which it owed to

decedent.

There was no eye witness to the accident. No one saw

or knows how decedent came to be struck or how or why he

came to the place of the accident. Evidently he was struck

on the right side of the engine, adjacent to track 9, and at or

close to the rear of the tender. How or why he came there

does not appear. How the accident happened no one knows.

This whole matter is left in the realm of speculation and

conjecture. This is insufficient to sustain the judgment.

Chicago, Milwaukee € St. Paul R. R. Co. v.

Coogan, 271 U. S. 472 (at p. 478), and cases

cited.

When circumstantial evidence is relied upon, the cir-

cumstances must be proved, they cannot be presumed,

Manning v. John Hancock Mutual Life Insurance Co., 100

U. S. at p. 697; Chicago, ete. R. R. Co. v. Coogan, 271 U.S.

at page 477; Price v. New York Central R. R. Co., 92 N. J.

L., at p. 432.

I. McCombe v. Public Service Railway Co., 95 N. J.L.

p. 187 (New Jersey Court of Errors and Appeals), action

was brought to recover for the death of plaintiff’s intestate

a

23

whose body was found near midnight lying on defendant’s

track, badly mutilated. There were no eye witnesses to the

accident. No one saw how it happened. The Court said

(p. 189) :

‘*But the only presum)tions of fact which the law

recognizes are immediate inferences from the facts

proved. Price v. New York Central R. 22. Co., 92 id.

(N. J. L.) 429. So, it has been said, mere theories

and inferences do not authorize a verdict in a ease 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 presump-

tion against negligence.’’

In Adriance v. Palisade Realty and Amusement Com-

pany et als., 95 N. J. Law 185 (N. J. Court of Errors and

Appeals), plaintiff was riding with two companions in a

racer operated by defendant. ‘Toward the end of the sec-

ond ride something happened and plaintiff ceased to re-

member anything. A few minutes before the accident, one

of plaintiff’s companions had spoken to him. The next he

saw was that ‘‘plaintiff was doubled up, bleeding.’’ No

one saw what caused his injury.

The Court said (p. 186):

‘The facts disclose an injury which is admitted,

but co not disclose how it happened and no one gave

any testimony on the point.’’

In Alvino v. Public Service Railway Co., 97 N. J. L., p.

526 (N. J. Court of Errors and Appeals), suit was brought

to recover for the death of plaintiff’s intestate arising out

of a collision between a motorcycle and defendant’s trolley

24

car. No one testified to having seen or heard any collision,

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

side car of a motorcycle. A witness who lived about one

hundred feet from the place of the accident saw a motor.

cycle being driven along the Avenue and the next thing

she heard was the shaking of the house and a grinding

noise. Then she saw the dust and after that passed she

saw the motorcycle and went out and saw the car. Another

witness saw two men lying unconscious on the roadside

and the motorcycle was broken.

The Court said (p. 529):

“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.’’

In Patton v. Public Service Railway Co., 227 Fed. 810

(C. C. A., Third Circuit), decedent was found dead under

the rear truck of a car on the Company’s northbound track.

The car had backed from a position north of the station

toward a switch south of the station. The conductor was on

the rear platform and was able to see a certain distance

down the track, but saw no one. The car was lighted within

and carried the customary forward and rear lights. The

conductor felt a jolt, stopped the car and discovered dece-

dent’s body underneath it. The rear truck was off the

track.

The negligence charged was that defendant’s servants

‘*backed the car at a reckless speed, without giving suff-

cient warning, and failed to exercise the care which the

law requires of a carrier toward a passenger.’’

25

The Trial Court and the Court of Appeals assumed that

decedent had been a passenger and that he remained such

at the time of his death, and decided the case on the ques-

tion of defendant’s negligence.

On this point the Court said (p. 812):

‘*No one saw the accident and no one knows, as

a matter of fact, how it happened. The plaintiff

contends that from the circumstances of the accident,

negligence of the defendant must be inferred, that is,

had the defendant not been negligent, the accident

would not have occurred. When or how the plain-

tiff’s husband got upon the track between the two

rails is not disclosed. Whether he heard the bell

ordering the car to back or whether he saw the

lighted car in time to avoid his peril, is not shown.

Whether the car knocked him down, or whether he

fell down and while in the forward position in which

his body was found, was run over by the car, is a

mystery. * * * In fact, it is not shown how the

accident occurred. * * * The learned trial judge

was entirely without error in withdrawing from the

jury a case in which a verdict for the plaintiff could

not have been sustained by the evidence.’’

This ease is brought under the Federal Employers’ Lia-

bility Act and is governed by that Act and by the principles

of the common law as applied in the Federal Courts.

Missouri Pacific R. R. Co. v. Aeby, 275 U-S., p.

426 (at p. 429);

Toledo, St. Louis d Western R. Co. v. Allen, 276

U.S., p. 165 (at bottom p. 169).

This Court will examine the record and if found as a

matter of law that the evidence is not sufficient to sustain

26

a finding that petitioner’s negligence was the cause of death,

the judgment of the State Court will be reversed.

Chicago, Milwaukee & St. Paul R. Co. v. Coogan,

271 U. S. 472 (at p. 474).

Where there is but a mere scintilla of evidence, the

State Court, in actions brought under the Federal Employ.

ers’ Liability Act, is required to follow the rule established

in the Federal Courts and order a non-suit, or direct a

verdict for defendant.

Baltimore & Ohio R. Co. v. Groeger, 266 U.§,,

p. 521;

Gulf M. & N. R. Co. v. Wells, 275 U. 8. p. 455;

Toledo, St. Lowis € Western R. Co. v. Allen, 276

U.S., p. 165;

Western & Atl. R. Co. v. Hughes, Admz., 278 U.

S. 496.

Not only did respondent fail to establish any negligence

against petitioner, but the evidence clearly disproves any

negligence on its part.

In Atlantic Coast Line R. R. Co. v. Driggers, as Admz.,

etc. (decided by this Court June 3, 1929), 73 L. Ed. (Ad-

vance Opinions), p. 556, decedent was a member of a switeh-

ing crew who were moving cars in a southerly direction

from a siding onto the main northbound track of defendant.

As the train came out onto the main northbound track dece-

dent was riding on the front foot board of the engine and

was facing south. As the engine approached the switch and

moved southerly on to the north bound track, a passenger

train approached on the adjoining south bound track. De-

27

cedent could not see this train without turning and looking

pack. He jumped from the engine, landing between the

tracks and was killed by the passenger train.

It was not necessary at that time for decedent to leave

the engine.

This Court held that the Railroad Company was not

liable and said (p. 558) :

‘*Under these circumstances, it is clear that Drig-

gers, by his own negligence, as the sole and direct

cause of the accident, brought on his own death, and

that there is no ground upon which the liability of

the railroad company may be predicated. Compare

Atlantic Coast Line R. Co. v. Davis, supra (279 U.S.

p. 39, 49 Sup. Ct. Rep. 210); and cases cited.’’

POINT II

At the time of the accident decedent was not engaged

in interstate commerce.

Under the Federal Employers’ Liability Act, the ques-

tion whether decedent was engaged in interstate commerce

is to be determined by the nature of the work being done

at the time of the accident.

Illinois Central R. R. Co. v. Behrens, 233 U. S.

473;

Erie R. R. Co. v. Welsh, 242 U. S. 303.

At the time of the accident, decedent was not engaged

in any work. He was struck on the right hand side of

aa

Track 8, adjacent to Track 9, probably at a distance of at

least 15 feet from the rear of the engine stall. This point

was distant about 100 feet from the inspevtion wagon lo.

cated on the concrete floor in front of the engine stalls

where, after completing his work on engine 3835, he had

been directed to await the return of Siddell. His work on

Engine 3709 had been completed at least four hours before

the accident, and after completing his work on Engine 3835

he had nothing further to do on any engine unless Siddell

gave him further orders, and none were given. Siddell had

nothing further for him to do, that night (R. p. 99, fol. 106).

28

All his tools were on the inspection wagon ready for re-

moval from the roundhouse at the end of his night’s work,

and no tools of any kind were found along tracks 7, 8 or 9

(R. p. 91, fol. 98).

At the time and place of the accident it is clear that he

was neither engaged in interstate commerce nor within the

scope of his employment. Under such circumstances, plain-

tiff had no right of recovery.

In Harbor v. Jenkins Rubber Co., 72 N. J. L. 171, plain-

tiff was returning to his place of work after noon recess.

He was proceeding along a proper pathway on the employ-

er’s premises when his attention was called to a glittering

object, and he departed from that pathway by a distance

of about 50 feet to pick it up. While off the pathway he

was injured. The Court said:

‘*He was therefore neither working for the de-

fendant company at the time nor proceeding to the

place where he was to work with the intention of

resuming work. When he deviated from the path,

29

the use of which it might possibly be considered he

was invited to make, he lost the protection of such

implied invitation and became either a trespasser,

or, at the most, a mere licensee, to whom the defen-

dant company owed no duty except to abstain from

willful injury.’’

The judgment of nonsuit was affirmed.

In Harris v. U. 8S. 8. Co., 75 N. J. Law 861, plaintiff’s

decedent, a longshoreman, was assisting in unloading a

vessel. While thus employed, it became necessary 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 a

shovel. Without waiting for the shovel to be brought,

decedent left his place of work to procure a shovel for him-

self 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 provided 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 abstain 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.

If decedent was attempting to leave the roundhouse, as-

suming that he might properly do so before Siddell’s re-

turn (which was not the fact), he had a perfectly safe

ee.

30

course along the concrete floor in front of the engine stalls

which was ten feet wide. Instead of using that way, he

voluntarily chose a dangerous way and was struck in a

position at the rear of the tcuder of engine 3709, where he

had no reason or right to go.

In Krysiak v. Penn. R. R. Co., 270 Fed. 758 (C. 0. 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 dangerous way

leading across the company’s tracks, instead of the safe

way provided by his employer. 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.”’

To the same effect is Atlantic Coast Line R. Co. v. Davis,

Adm., 279 U. S. 34. In that case decedent at first took a per-

fectly safe position in which to give signals for spotting

ears. He then voluntarily took a dangerous position and

while there was killed. This Court said tnat he ‘‘thereby

through his own negligence, as the sole and direct cause of

the accident, brought on his own death.’’

=

POINT III

31

Decedent’s death was due solely to his negligence and

to his disobedience of orders.

Contrary to Siddell’s direction, decedent voluntarily

left a place of safety at the inspection wagon and went to a

place of danger around the rear of engine 3709, about 100

feet from where he had been told to remain, and where his

duty to petitioner did not require him to go. Under those

circumstances, petitioner owed him no duty except to re-

frain from wilfully injuring him.

In Great Northern Ry. Co. v. Wiles, as Admr., 240 U.S.

444, decedent was a rear brakeman on a freight train. The

drawhead pulled out of one of the cars and this caused the

train to stop. Shortly afterwards, it was run into by a

following express train and decedent was killed.

When the train broke in two, it was the duty of decedent

immediately to go back and protect the train and the engi-

neer gave the usual signal for him to do so. He failed to

protect the train and the collision resulted.

This Court held that by reason of his failure to regard

the signals of the engineer and to perform his duty, there

could be no recovery, even though negligence could be

imputed to the carrier from the pulling out of the draw bar.

In Frese v. C. B. & Q. R. Co., 263 U. S. 1, decedent was

an engineer in the employ of the Railroad Company. Under

a statute of the State of Illinois he was required on ap-

proaching a grade crossing of railroads to bring his train

32

to a full stop before reaching the crossing and to ascertain

positively that his train could safely resume its course be-

fore proceeding over the crossing. He brought his train

to a stop but did not ascertain that he could safely proceed

over the crossing. His engine was struck by a train ap.

proaching on the other railroad and he was killed.

This Court held that there could be no recovery, even

though the train approached from the fireman’s side and

if the fireman had kept a proper lookout he would have seen

the colliding train. The negligence of the fireman, if any,

did not excuse the negligenze of the engineer.

In Davis v. Kennedy, 266 U. S. 147, decedent was a loco-

motive engineer and it was his duty to ascertain definitely

at a station known as Shops that train No. 1, approaching

on a single track road, had passed that station. The con.

ductor had asked him to look out for that train and dece.

dent agreed to do so. Without ascertaining whether No. 1

had passed Shops, he ran his train beyond that station.

and the collision occurre..

This Court said (p. 148):

“It was the personal duty of the engineer posi-

tively to ascertain whether the other train had

passed. His duty was primary as he had physical

control of No. 4, and was managing its course. It

seems to us a perversion of the statute to allow his

representative to recover for an injury directly due

to his failure to act as required, on the ground that

possibly it might have been prevented if those in

secondary relation to the movement had done more.”

To the same effect is Unadilla Valley R. Co. v. Caldine,

Admr., 278 U. S. 139.

33

In Mehl v. 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 therefrom, receives in-

jury, the employer is not liable. Card v. Wilkins,

32 Vroom 296.’’

We respectfully submit that the judgment should be

reversed.

ALBERT C. WALL,

WILLIAM H. CAREY,

Counsel for Petitioner.