# Petition for Writ of Certiorari — Northwestern Pacific R. Co. v. Bobo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0423%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1934 - **Citation:** 290 U.S. 499 ## Text a é INDRX. ee Sunaseor INpEX Nature of ense and questions tirvolyed........ Uicacmnianae eae eases relied ipon for allowance of a writ of certiorari... ... Brief eee ee ee eee Serr ree rere, eee : eee eee teen we eer eseecceecosesce RC idiigtn Spas pw ace alone Verte sabe oeek sebise has ow se ee eles INDEX ‘TO C'ARER, Atehison, ‘Topeka & S#ota lhe Railway Company v. Saxon, 284 U.S. 468, 2 Sap. Ot. 220, TOE. id. a, Ee mE ee ae Atchison, ‘Topeka & Santa Ke Ratlway Company v. Toops, 281- Chiengo,s Milwaukee & Sto Paul Ro Co. vy. Coogan, 271 U.S. 472, i GR Wl, WE, Gin i cc cn cnt ntsc debeccccnncs New York Central i. R. Co. vo Ambrose, 280 UL. 486, 74 2. Ed. ae TE | UC TOCT CT TTT Seaboard Ajr Line Rallway v. Horton, 283 0.8. 492, 58 L. Kd. SOME, AA Mange. CC. CB. eee wcrc cece cer cceecccenecsees Mt. Loula San Franctseo Railway Co. v. Mills, 271 U. 8. 444, 70 = tf F Fee eeererreeere: sreverercercce rT. SUPRRMR COURT OF THE UNITED STATES. ‘OOTOBER, TERM, 1933 o- 3S ~~ No. - NOR'TIAV ENT IOIEN PACIFIC RAIL, ROAD (!OM il ANY, | A Comronation, Pererionnn, A, JOSEPHINE BOBO, an ApMinintnatnix or ria Kis vath oor Panny 1, Bono, Descwasm, Hania iinet, PETITION FOR WRIT OF OERTIORARI TO THE DISTRIOT OOURT OF APPEAL OF THE STATE OF OALIFORNIA, FIRST APPELLATE ‘DISTRIOT, DIVISION ONE. To the Honorable Charlen Bvann Hughes, ( thief. Jun. lice of the United States, and to the Annociate Jus Hees of the Supreme Court of the United Staten: The Northwestern Pacifie Railroad Company re-- xpoctfully petitions thin Honorable Court for a writ of certiorari to the District Court of Appeal of the — a State of California, Hiret Appollate Diatrlet, Division . One, te review a judgment af the court pronounced on danmary 27, HAR reported be 1) Bae, (at) TO, 111). The maid court OF ite judgment allen a jaile ment af the lewer court for damages ln faver loves xpondent anc agehit petitioner, Within the tiie npocitied by Rule NNN of the Supreme Court af the State of California (QIN Cal ivii), petitioner male application for acrehearing whieh waa dented by anid Diatriot Court of Appeal on the 84th day of Mebrue ary, LOR, and thereafter and witha the thine apecited by maid Rule ANN petitioner aade application for hearing by the Suprenie Court of the State af Cali fornia, whieh wan denivd ” on the 7th lay of Mareh, - POR, ‘ Nature of Oase and Questions Involved. Thin is an action brought by renpondent to recover (hamages for the death of her buband whieh oeurred While he was employed: by petitioner. in Tnterstate commerce, The action. in brought puriant to the proyisions of the statute of the United Staten con monly -known as the Federal Kmployers’ Liability: Act. Two questions are presented :. First. Is it not incumbent upen one claiming damages under the: Federal Kmployers'’ Lin- * bility Act to establish negligence and causal connection between thin ana the injuryt ; Second. Does not an employee engaged. i in in terstate commerce assume the risk of the use of appliances, even though the same are defee- tive, -if such defective condition and the risk on _ ineldent to tele uae are ao obviews that an or - Allnarily prndent person under the elreuin atanens must have observed and appreclated itrenns?- . arts ene _ . The Reasons Relied Upon for Allowance of a Writ of ce : | Oertiorari, Docent Was employed aaa beldge tonder-on the rallvond bridge of petitions Northwestern Paeitte ~ Mtaltvone Company, whieh Vovdodgees evncenesrseses an nevi peas biles wateeway Known da Potala Slough His lowes of ciploy nent wore from HQ p.m. fo Ail ae in Ves cane te work aa nana) Ab dOO p.m an the night of Mobruny a VHOTN0), canned “Wetes deeevers eters nlive U bressres after, we wooka Inter bia body wan discovered: in the water nome iiifeos Fromghe tldge, HHueraes wetgies no oye Wwithenaon fo the neeldont. Respondent eburgead bres Lipgeraneres, Day petitioner las the mada tenance af a eer taniuy estes) metandewany weenie Frenne Chee nnidan clesek of, (hee bridge ap to the control house in the upper portion ofthe apn (paragraph Voof complaint, Ut hy, thee npecitle charges of iene Tiprevgneret, ats whowsn boy thee eesti mony al remponelent's witennen (1, iM, iu, 76, 77, 7), Velo (1) that the ater sen golsit fern at the reotterna Chereod were worn. amooth and were slippery when wel 5 (2) that a wiggle heanclrail ooby wees teosion tnined on each side of the xiairway and platform whieh loft wuMlciont apes xo that a person falling or slip ping on the atairs could xlide wnder the besasned rind) sunvel info the water, | oe aoa. ae he evidence showed (RR. 28, 29, 52, 63-64) that cergain ~ hairs similar to those on the sheepskin collar of a cont 1 a, | . : ; 4 ‘ | | : worn by the dovedont and a‘ spot rowombling blood were found ut the. edge of the platform at the bottom of tho stairs. Ono witnoss also toatitlodt that (hore war W bruise on the back of decedent's head when the body was recovered (R30). Thin evidonoo it in elaimed was sufflciont to show that the decedent foll off the bridge at that point. No evidence whatsoever wan ive troduced showing or tonding to show what caused de codont fo fall or that hin fall) was cased by any ney _ ligence cow the part of his omployor, ai indood) it can “he snid that ho did fall, This Court has repeatedly: held that one who elaine under the. Foderal Mmployors’ Liability Act must. in some adequate way oxtablish nowligence ane enusal connéction between this and the injury and that judg ments for damages uhder this nel may not be based > Upori speculation, ¢ - Atchison, Topeka & Santa Fe Railway Com: pany vo Saron, 284 U.S. 454, 52 Sip. Ct. 0), 76 1. Md. 897; Chicago, Milwaukee& St. Paiel I. Co.v. Coogan, U7L US. 472, 70 L. Bd. 1041; 46 Sup. Cl. 564, Atchison, Topeka & -~ Fe Railway Com pany v. Toops, 281 U.S. 3851, 74 La. Md. 896, 00 Sup. Ct. 81; , New York Central RL R. Co. ¥- Ambrose, 280 U.S. 486, 74 L. Kd. 562, 50 Ba. Ct. 198; St. Louis-San Francisco Railway Co, v. Mills, 271 U.S. 344, 70 L. Bd. 979, 46 Sup. Ct. 520, The only, evidence concerning the decedent’s activi ties on the night he disappeared was testimony: that BO | _ “he “came to. work on tho bridge nt 1:00 p.m, that evening, and that there was an entry in hin hand. writing in the log book Gn the bridge showlyg that a xtdnmor pussed through at b:20 n,m. (IR. 66). tis body wan not found until two wooks aflorwardn, What caused him fo fall or jump. off the bridge ix tnknown, Tt in the theory of respondent that hin foot slipped on thin atin or platform and he fell off the platform at the foot of He stairway under the railing. No one ean say that hia fall-was caused by the slippery condition of the platform or staira or thet he was pre cipitated into the water by reason of the absonen of ‘a lower railing, and to omake sneh an axnertion in to indulge in pure conjecture, whieh is what the jury win permitted to do here, He might be said with equal force that ho wag attacked with a fainting Kpell or beenme dizzy or fell due to Homd: net. Of hix own not connectod with the slippery condition of the stairs. The theory of respondent and the verdict of the jury are based nololy on guesswork, 2 The decision of he Distriet Court of Appeal « the State of California on this point ix not in atid with the decision» of thin ( fourt in thi: tfarementioned cases. We mont respectfully assert that thin petition should be granted in order that there be uniformity of decision under this Federal statute. . It. is sub- mitted that-to permit the California decision to stand ~ would cause confusion and uncertainty in future nections in California under this statute. . The decision of the District Coyrt of Appeal of the State of. California is also not in accord with the applicable decisions of this Court on the question of 2f 6. ? assumption. of risk.-°As hereinbefore set: forth, it is. the claim of respondent that the negligence of peti- tioner consisted in maintaining a stairway and plat-— forni which were slippery when wet and in not pro- viding more than a single handrail around the same. Although it is true that the decedent only worked at . night, it is: further admitfed that in the course of his — duties for a period of more than six months. before his death he was compelled to ascend and descend this stairway several times each night when the steps were slippery (R. 44-45, 47), and that in order to perform. . his duties as bridge tender it was necessary for! his to carry a lantern. or Aashlight with him (R. 60), Clearly’ the claimed: defects, to wit, the slippery sur face of- the stairway and(the absence of secondary: railings, were plainly, apparent to the decedent, and « the risks incident to their use were such as could have heen comprehended by\a person of the most limited intelligence. Under similar cireumstances, this Court has held that the employee assumes the risk of the ‘use of such appliances. Seaboard Air Line t nilwoay Vv. Horton, 233 U.S — 492, 58 L. Bd. ro62,, 84 Sup. Ct. 635. Brief. A brief in support of this petition. is filed herewith. | Prayer. ' Wherefore, your petitioner prays that a writ of cer- , _tiorari issue out of and under the’seal of this Honor- able Court directed to the District Court of Appeal of - the State of. California, First Appellate District, Divi-. \ . sion One, commanding: said court ‘to certify and send to this Court on a day certain to be therein designated, | a full and complete transcript. of the records and all proceedings in the'case numbered and entitled i in said Court: ‘*No, 8209, Josephine Bobo, as Admninistratrix of the Natate of Perry K. Bobo, deceased, plaintiff and respondent, v. Northwestern Pacifie Railroad Company (a corporation), defendant and ‘appellant”’, ce to the end that said.ease may be ‘reviewed and deter- mined by this Court as provided by law, and that ‘said judgment of said Distriet Court of Appeal of the State of California may be reversed by this Honorable Court and that: yor petitioner may have such other and hirther relfef in the premises as-to this Honorable. Court may seem just. , 3 a Dated: Nan Franciseo, May 11, 1933: W. H..¢ JRRICK, . ay ee ~R. W, Pater " 7 Attorneys. for Petitioner: INDEX. SuBJect INDEX TO BRIEF. « The decision of the Califorina court is not in ‘accord with the, applicable decisions of this’Court in that no causal connection % was established in this case between the alleged negligence of Page _ petitioner and the death of decedent...... ate pialblewedse eb Staak ais 1 The decision of the Califorina court on the ‘question of assump- . tion.of risk is contrary to the rile Jaid down by. this Court with respect to such eeteane under the Federal Employers’ “¢ Liability Act jeu iaetoulauns piushibaubes eennce Chueuaatnases 11 INDEX TO CASES. Atchison, Topeka & Santa Fe Raiiway Company v: Saxon, 284 - U. 8. 468, 52 Sup. Ct. 220, 76 Las Bid. BO7Z. wn. ccc ccc cc cccccs, 4 Atchison, Topeka & Santa Fe Railway Company v. Toops,. 281 2 8 S&S ee Se ET eT eT re 10 : Chicago, Milwaukee & St.-Paul R. Co. v. Cerne 271 v. S. 472, _ oe ee rer er ere ae . 2,4,6 Seaboard ‘Air Line Railway v. Horton, 233 U. $. 492, 58 L. Ed.’ 1062, 34 Sup. Ct. 635 riankeew ke Su ce Caunek chad sacskonuhe 11 —3453 5 . ° © . - . . - . . ¢ . — . > . ‘ = ? - - . ‘ . « “ . « , . ¢ . . . : . ° *e P e - . 28 94 “SUPREME court OF THE UNITED STATES. | OOTOBER. TERM, 1933 No. 163 NORTHWESTERN PACIFIC RAILROAD COM PANY, a Conrvoration, Prrrrionen, “VE, | JOSEPHINIG BOBO, as Apminisrratnix oF ting 1s vate or Penny KH. Bono, Dacwassp, Resvonvenr. ~ -———- BRIEF IN SUPPORT OF PETITION FOR WRIT OF _ OERTIORARI. 2 ‘The decision of the California court is not in accord with the applicable decisions of this Court in that no causal connection was established in this case be. tween the alleged negligence of ee and the death of decedent. . , Under the decision of the District Court of Appeal of the State of California, respondent is permitted to recover damages under the. Federal Employers’ Liahil-' ity Act without establishing negligence and causal - 9 connection between the negligence and the death of. decodent, | In Chicago, Milwaukee in St, Paul RR. Coo yv. Coo gan, 271 US. 472, 46 Supt. S64, 70 1. ea. WOT, thin Court, speaking Miro Mr. Justion Butlor, saya, at page LOW: | . ° “hy “the Kederal Kmployers’ Linbility «Act, Congress took possession of the fleld of om plovers’ liability fo employees” in vinterstate transportation by rail; and all State laws upon that subject were superseded. Second Maploy cers’ Liability Cases. (Mondouw yo New York, NW TBR Co.) Be TS fb, O06 La, BOVIS AS RAL (NOS) be 82 Sap. Cb Rep, 167, IN. O. OL AL 87; a Air Line R. Conve Horton, 233 Ul, 492 401, D8 ’ Wel. Lodz, 1068, ROA, iis “1 dE Sup. Cf Rep. G3o, Ann. Cas, LOLOR, 475, 8 NL CL. ‘A. aD oe The tights and obligations of the petitioner de pend upon that aet and applicable principles ~of common law as interpreted by the Federal courts. The employer is liable: for imjury or death resulting in whole or in part from the negligence specified in the act; and proof of such negligence is essential to recovery. The kind or amount of evidence required: to estab lish is not subject te the control of the several States. This Court will examine the record, and. if it is found that as a‘matter of law, the. evidence ts not sufficie nt to sustain a finding that the carrier’s negligence was a cause of the death, judaqment against the carrier wall be reversed. — St. oo LM. @S. RL Covyy. Me Whirter, 220° U.S. 265, 277, 57 L. Ad. 1179, 1186, 33 Sup. Ct. Re 858; New Orleans & NE. R. Co. v.. Harris, 247 US. 367, 871, 62 L. Kad. ?. ll F 1167, 1170, 38 Sup. ct, Rey, i New ame if! ¢ 5. Ro Co. vy. Scarlet, 240 US, $88, 63 L, Mel. 752, 30 Sup. Ct, Rep. Ni), ** (Htalies our) The record in thin enne in ahort and the evichenen without conflict, Nhe (ontimony upon whieh renpond | ont relion in support of the allegations of negligence merely proved that the surface of the atepa and plat form of the steel staireane had been worn siooth and: that thedtopr of the small iron knobs thereon had alae been worn romewhat and were also smooth; that ana result of thin nnoothnens (he stairs and platforms when wel wore slippery (i: OL, oe, 76, 77, 7). wan fur ther established that nearly every night.in the winter: fime the stairs were wet with dew CR. 46), although there ix no proof that the stairs were wet on the night decedent Wan last seen upon the: bridge C&R. Woy oUt wax further charged that) in other industries it) wax considered proper for wiairways of this charneter to have double rails or even a toe board along the sides of the steps or platform (I. 78 79)) “No one enn say at what time or im what manner décedent fell or ; Jumped from the bridge. Tt ix left to conjecture whether he was seized with a dizzy spell or tripped or Wan. Ciused to fall hy some aet of his own not con. nected with the slippery condition of the steps, This Court has repeatedly grinted petitions for certiorari after decision by State courts on this identi- cul question, and has adhered to the rule that-the evi- dence must, in some adequate way, extablish.the negli- - gence and causal connection between this and the in- jury. eo ee a ee 7 . 4 The identicnl situation. ix presented hore as that, passed upon by thin Court. in’ Atchison, Topeka d Santa Fe Railway Co. vy. Savon, 284 0.8. 458, $2 Sup, (1, 220, 76 Li Md. 807, and Chicago, Milwaukee & St, Paul RL OR. Co. vy. Coogan (supra). Inthe former, the Court speaking through Mr. duntion MeReynolds, in 76 L.. Kal, at page 808, saya: : “While employed t ax head brakeman by poti- > fioner Raihvay Company and engaged in inter xtate commerce, LW. Moore auainined fatal in juries at a Now Mexico station. His personal representative obtained ao judgment for dam ‘ages, under the Moderal Miiployers’ Linhility Act, ina ‘Texas court. “The court of Civil Apponls at KE Paso re versed this, holding that, the evidence failed to show the aécident resulted from the carrier's . negligence, The Supreme Court granted: | writ of error, reversed the Court. of Civil Ap peala and affirmed. the original judgment. Tt: concluded that, viewing all the evidence, there . was enough to show negligence and causal con ‘nection between this and the death, “The matter is here by certiorari” The Rail. way sets up.a claim under the federal statute which it has not heretofore had opportunity to submit for adjudication to any federal tribunal. The cause is one of a peculiar ‘class: where wo - have frequently been obliged to give special consideration to the facts in order to protect interstate carriers: against unwarranted judg-. ments and enforce observance -of the Liability Act as here interpreted. .**Examination of the record convinces us that. the Court of Civil Appeals reached the . proper conclusion, We can find no evidenco - i) from whie ‘h it imiy he properly coneluded that Moore's ‘tragic death wax the romult of neg. ligence by the Railway Company. An offen pointed out,-one who claima under the Federal “Act mind ini nome adequate way oatablish negli Kernen nnd causal connection between thin: and the injury, New York, C. Re Co. vy. Ambroxe, Ox UL OS. 486, 74 1. Kee 562, 50 8. Ct, 19K; Atchison, Tod So BRL Cony. Toopa, 281 0, N.. Bod, 74 1 Mel. ROO, DOS, CL. 288. “Tn the language of the Supreme Court the respondent ‘recovered in the’ trial court on the theory that the: deceased, while in thes imehaurgee of hin dution axa brakeman, was running wong hy the side of the track of the Railway Com pany and while doing so with the purpone anc intent oF boarding oné of the cars in the train, he atepped on or upon some roft area or hole in hin pathway, and wax thereby caused to fall wand be run over and killed’ (Pex.) 36 8. W. (2d) 230. aoe : ‘Nobody saw the accident; ‘no 7 can KAY with fair certainty How it oceurred. Consist. ently with the: facts disclosed, it might. have happened in one of -severtil ways and without. cansal negligence by the petitioner. When last Keen the deeeased was running weatwardly by: thé side-of the train then moving in that diree- tion. Across the pathway commonly used by ~trainmen, there was a slight depression-— -OMti- mated to be four or five, or possibly six or eight, feet long and three feet wide—filled with small rock se ‘conings. It was softer than other portions of the way—yielded to the foot. Kight . or fen feet west of- this witnesses found blood upon the rail. C cen ’ “Two hours after the accident a fourteen year old boy discovered the mark of a shoe in’ the seroonings. Tho said it) ‘was deeper: than the footprint that Toninde, it looked aw though, somebody that was hoavy oor running had Mtopped init, The front part cof the foot was deepest.’ There is no evidence nothing but conjecture to show that the doeoased mide: this impression; and, even if he did, we eaunot assume that by stepping there he was made to: stumble and fall under the moving. train. "What occasioned this: distressing aecident ean only be surmised, Th wis necessary too. show causal negligence in order to establish the, respondent's right) to reeover. The evidence fails to meet this requirement, ‘Phe judgment below must be reverned Tt the cause remanded tor further proceedings nol inconsistent with this opinion.” “In Chicago, Milwaukee & St, Paul Kailroad Co, v. Coogan (supra), the evidence showed that there was a bent or loosened pipe alongside of the defendant's railroad tracks at a point where the decedent was re’ quired to go to ancouple some cars. In some way While uncoupling the cars: the decedent fell under the wheels and was killed. Tt was the contention of the plaintit® that the decedent slipped or tripped over thie bent pipe and fell under the wheels. Tt was claimed that the defendant was negligent in so maintaining. such a pipe alongside its tracks and that such negli gence proximately caused the death of decedent. 'To support this contention a mark on the outside of de- cedent’s shoes was displayed for the purpose of at- s 7 tompting to show that he nliprprerel upon the pipe.- Mhis Court, at page O66, MIVA; “ “The cine was, tried, and respondent: MIP. ports: the judgment, on the theory that; whon the xwiteh engine wlopped after the lant, coupling, ‘decenned went botwoen the eaboons and ear to couple the air howe; that he stepped between the rails. with hin right foot, loaving hin left foot outside the nouth rail anil between. it nnd the pipe dine; that, stooping fo rench the vir hose his left foot slipped backward under the bent pipes (hit, before he had time to make aoa the coupling, the ears were started backward — in the movemont to clear the switeh; that, when he attempted to straighten Wp, lin loft. foot. Wik caught under the pipe, and he was foreed back “ ward, run over, and killed. Tt. follows that, . unless the evidence is: sufficient to warrant | finelimg that the death resulted from the ceateh. eae ing ol deceased ’s deft foot under the bent part ome of the pipe fine the judgment cannot be sus-, tuined. Ax there is no direet evidence, it necessary to determine whether the circum. : xianeos are suficiont to warrant a finding of . ‘that fact. Whenever circumstantial evidence ix relied on to prove a fact, the circumstances must be proved and not themselves presumed, United States v. Ross, 92 U.S. 281, 284, 23 lL. Mad. 707; Manning v. Insurance: Co., 100 U. 8. 693, 698, 25 L. Md. 761, Assuming, it was the duty of deceased to couple he air hose, it was- -necessary for him to go between the ears to do xo. lle wan standing by the caboose when the - first ent came in. The air bee coupling might have been made then or at any time after that. - It was not made, and it is left to be inferred © ee 8 that he postponed effort in that direction. until after all the switching had been done and until the engine had hold-of the string of cars. And then it must be inferred that he went between the cars in the manner eclaimed—his right foot between the rails, leaving his left foot ouside, where, it is argued, it was caught, “under the bent pipe. . \ “The ‘rounding depression’ on the counter of the shoe is not cient to bridge the hiatus -in the evidence. It is not shown when or. how that depression was made. | The condition of the shoe before the accident is not disclosed. A number of days elapsed before it was noticed, and it is not shown that in the meantime care was: taken to keep it in the same condition Or that the depression was not: made after the accident. Kven if the appearance of the shoe and other circumstances are sufficient to justify an inference that the” depression: might have been. made ‘by the bent pipe, it cannot -be said that they constitute any repsonable support for a‘finding that it was so made. And, assuming , _ that the depression on the shoe counter was | made by contact with the bent pipe, there is nothing to indicate whether it was made at the _ time deceased. wiis knocked down, or later while he was being dragged. But there is nothing to show that the pipe had any connection with the accident. * -* * ae “When. the evidence and the conclusions which a jury might fairly draw from the evi- ‘dence are taken most strongly.against the peti- | tioner the contention of respondent that the bent pipe caused or contributed to cause. the death is without any substantial support. The 9 record leaves the matter’ in the realm of specn- lation and conjecture. - > In ‘each ‘of the ‘foregoing eases there were no eye. s. witnesses to the accident and what. actually caused the’ WL decedent to fall was unknown, Theré was the testi- ss mony: relative to the footprint in the soft ground in the Saxon case and the mark on the shoe of the decedent. in the Coogan case and it was ‘claimed that. this evidence was sufficient to show that the decedent - ‘n the Saxon case was caused to fall under the éars. by | | reason of he soft ground, and in tle Joogan case by reason: of the bent. pipe alongside the tracks. In the case at bar there is only the testimony relative to the ‘ sheep hairs, ‘alleged blood spet and. bruise on dece- -dent’s head and the single handrail to-support the . claim that he was caused to fall into the water by the slippery condition of the stairs and the absence of a lower railing. We see no distinction between these three cases. In each case. it might be surmised that. the decedent was caused to fall by the alleged neg- . ligent act of his: employer, but this Court has ,re- peatedly held that a judgment. under this act cannot: be supported solely by surmise and speculation. The California District Court of Appeal has spd in. its decision (R. 114): that the evidence was reasonably sufficient to show that the condition of the stairway ~ and platform rendered their use unsafe at night and~ that the physical - facts fairly supported the conclu- sion that decedent fell therefrom and his body passed .under the “railing. into the water. In so holdfhg, the ‘decision of the California court does: not + the a ae ae Y - condition and si that the fall and death of- caused thereby. “=n s action. | . Not only was it incumbent on. respondent to prove that the nigag were unsafe, due to their slippery il, but it was necessary to prove ce ent were proximately An Atchison, Topeka € Santa Re Railinay Co. v.. Toops, 281 U. S. 351, 50 Sup. Ct. 281, 74 L. Kid. 896, Mr. Justice Stone, at page 899, says: = [ pies * “But proof of negligence sian does not entitle the plaintiff to recover under the Fed- eral Employers’ Liability Act. The negligence complained of must be the cause of ‘the injury. 4 requirements laid down. by this Coust in such an_ — ienaat The jury may not be permitted to speculate as - 2 to ts cause, and the cast must be withdrawn from. its cohsideration unless there is evidence . from which the inference may reasonably be _- drawn thatthe injury suffered was caused by te negligent act of the employer. Patton v. “Texas & P. R. Co., 179 U.S. 658, 45 L. Ed. 361, - 21 Sup. Ct. Rep.. 975; New. Orleans & N. E. R. - Co. v. Harris, 247.U. S. oe” 371, 62°L. Ed. 1167, ‘1170, 38 Sup. Ct. Rep. gf. Louis- San Fran. cisco R. Co. ‘v. Mills S. 344, 347, 70° s ~ L:- Kd. 979, 983,:46 Sip. Ct p. 520; Chicago, M. & St. P. R. Ce. v. Coogan, 271 U. Ss. 472, 70 “L. .Ed. 1041, 46 Sup. Ct., Rep. -564; New. York : -C. R. Co. v. Ambrose, decided February 24,” - 1930 (280 U..S. 486, ante, 962, 50 Sep. Ct. Rep. 198)... ‘ “Even though we: assume thaf in all the’ respects. alleged the petitioner was negligent, the record-does not disclose any facts tending a to show’ that the negligence was the. cause of '. the injury and oa, “a ¢@ ae ae 6 SRL PE oe: a ee ey ea ae ESS 2 if FORTE ARTS FASE IO ER «ea OGTIS IE Gh » 4 FR; ue. : 11, | Po : ; ; The decision of. the Oaliforina court on the question , of assumption of risk is contrary to the rule laid down by this Gourt with respect to such defense under the Federal Employers’ Liability Act. In Sealward Air Line Railway: My i orton, 233 U. 8. 492, 34 Sup. Ct. 635, 58-L. Kd. 1062, ‘at 1070, the United States Supreme Court says: : ‘On: the other hand; the assumption. of risk, *+ eventhough the risk’ be obvious, may be free from any. suggestion of fault. or negligence. on the part of the employee. The risks may. be. present, notwithstanding the exercise of all rea- sonable care on his part. Some employments _ are necessarily. fraught with danger to” the | .¢ ‘workman—danger phat must be. and is con- fronted in the line of his duty. Such dangers as are normally and necessarily. incident to the - occupation are presumably taken. into the aec- count in fixing the rave of wages: And a work- . man of mature years is taken to assume risks | of this sort, whether he is actually aware of -them or not.. But. risks- of another sort, not - © naturally incident to the occupation, may. arise out of the failure of the employer. to exercise ‘due care with respect to providing a safe place . of work and suitable and safe appliances for ‘the work. These the employee isnot treated as ~ assuming until he becomes aware of:the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinardy prudent person under the cir- cumstances would have observed and sail ciated them.’’ The evidence shows’ that although décedent was alle ‘employed at read ke had been Pa i on the — Cs hy 12 bf continnonaly for six months before the accident; that .. his duties there were ‘to open and cigpe the bridge to permit boats to pass. through; that in order to permit — a boat to pass through it. yas necessary for him to traverse this stairway four _tifnes (R. 43-45). -The - testimony shows that” when a boat. whistled to go through the bridge the operator had to go up the stairs to the engine house ‘on the top of the bridge and throw . the semaphores and open the bridge. He then had to go down the stairs and go to each end of the fray and see that the rails were in proper alignment. He then had to return up the stairs to the engine room, throw the ea Oe to permit the trains to cross the =bridge and then descénd the stairs to reach the little house where he customarily remained... The testimony further showed-that it was necessary for the operator - to have either a lantern or.a flashlight to accomplish . this work, and that lanterns in good condition were fur- | ~ nished by the company for this purpose (R. 60-61)..° Clearly, therefore, the decedent had gone up and down this stairway hundreds of times before the-night of the actident, during all of which time he carried a lan- tern or a flashlight. The stairs were ‘somewhat steep: and it was customary to hold on to the railing in go-— ing up or down them.: How can it possibly be said‘ that any person ofthe most limited intelligence would not have observed and known that there was only one railing on the stairs and platform. The decedent was a man. of ordinary intelligence. The ordinary knowl- edge and experience in human affairs tells us without ~ any question that he could: not have traversed this . stairway hundreds of ‘times in ‘the course of his duty t 2B am without being. aware of its ihapnieil # acakh feriatics. = The same is true of the alleged: slippery condition of = the stairs. The testimony discloses. that the stairs were slippery when wet. There is no evidence, how- ever, that the stairs were wet at the time Bobo fell off © the eile. . ‘The testtmony further discloses that nearly-@ every night during the winter dew collected on the stairs rendering them slippery (R. 47 ).. No orie certainly could have been more aware.of. this condition « than the-decedent. His hours of duty. were from 9:00 | - p, m. to 5:00 a. m. ‘and he was in a better position to ij ' observe: the wetness of the steps. than any: one else. . ‘ a Having gone up and down these stairs hundreds of -times at night with a lantern and with his hand on : the rail and with his feet on the alleged wet and slip- _pery ‘steps,: it is to do violence to sound judgment or ordinary human experience to say that he was not - aware of the fact that the stairs when wet were slip- ery, and: the danger incident thereto. The California court in passing on. this —_ in , ' -Iits decision (R. 114) merely say Se os ~ - an experienced employee who knows the mate-— rial conditions .must be considered as. appre- ciating the danger and assuming the’ risk, al- though at the time he may have forgotten the ex- istence oi the danger and the employer was neg-- ligent in allowing the danger to remain (Jacobs v. Southern*Ry.Co., 241 U.S, 229), here, so far as shown, decedent had never ascended the stair- way during the day time, nor was he aware of gerous. ae : / ‘‘While it is the rule ‘ander the statate a the conditions which made the structure dan- H } ; fe WIR RO BRE CVE TRIM ILL $I OR LTA CR AN CREE A RCPS i me: ear ~The court whdlly. j ignorés the = that where‘ the - ccinditions aid the risk are so obvious that an. ordi-’ narily prudent. person under the circumstances would gave observed and appregiated them, the employes 3 is « besa pie to assume the same. | : *. Respectfully submitted, - ; 7 eae W. H. Orrick, : ae \ ' BW. Pazocern, ~_ | (ee Attorneys for Petitioner. s < oon (3453) - % ¢ @ ; < Bo 1% —— Nee eax wae SA —_—$_—____--— SS — . P) c ™ e . ; i SS eee é: 3 fi : J , : \ t ’ “~@ P > la “en ‘ BM: e $ WOOP ee, ad) ne oaks OAT Y --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0423%3A2. Public record. Not legal advice.