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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1930
- **Citation:** 281 U.S. 345

## Text

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 ¥¥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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0372%3A3. Public record. Not legal advice.