Opposition Brief — Erie Railroad v. Tompkins (No. 367)

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| STATEMENT OF Facts

INTRODUCTION. ....

SUMMARY OF ARGUMENT:

PAGE

Point I—The lower Court was correct in applying the

rule of the great weight of authority, since. .

A. In cases involving questions of general law,

Federal Courts will exercise their independent

judgment. .........e.. OF a haves oe bos a ee

B. The case at bar involves a veto of general

mor saree

’ law, since. cee e ie se oe we ee ee eee .

oes eeve

1. Supreme Court decisions have established

that questions of the type here presented

involving railroad accidents, are —

tions of general law..........-

a. There is no such doctrine, as con-

tended by petitioner, that where a

rule is. well established in a State,

the question is one of local law and

Federal Courts must follow the rule.

. The doctrine is that the subject-

matter, not the degree to which

State decisions are settled, deter-

mines whether a question is general

or local in nature.............+5-

2. Questions of the type here presented, in-

volving railroad accidents, are by nature

general rather than local.............-

‘

SER MMA RET INET I RAMEN TRS EOI EE INP, SS RT OEE EIT EY

Or

12

14

15

ii

: PAGE

C. The solitary Pennsylvania decision upon which

petitioner relies is of doubtful applicability

to the case at bar, since............2-ceees 18

1. Said decision is clearly contrary to other :

decisions in Pennsylvania............. 18

2. The facts of the case at bar do not come

‘within the purview of the Pennsylvania

Re eres weed ee eee 22

D. There is no conflict among the Circuits upon

the questions here involved...... or SE 23

Point II—The lower Court properly applied the rule

that where reasonable men may differ, contributory

negligence is a question for the jury.........--+--- 24

CONCLUSION. 6... eee eee eee cece eee e eee teen ees 26

TABLE OF CASES CITED.

PAGE

Baltimore & Ohio v. Baugh, 149 U. S. 368.......--- 5, 14,17

Baltimore & Ohio v. Goodman, 275 U. 8. 266........--- 8

Baltimore & Ohio v. Thornton, 188 Fed. 868.........-- 10

Boston & Maine R. R. v. Breslin, 80 Fed. (2d) 749... .12, 24

Beutler v. Grand Trunk Ry., 224 U. S. 85........-++--- 8,15

Black & White Taxi Co. v. Brown & Yellow Taxi Co.,

_, Bike Bo SA ere rrr eee ree eee 5, 13, 14, 15

Bucher v. Cheshire R. R., 125 U. 8. 555.........-+--+- 13

Burgess v. Seligman, 107 U. S. 20.......---++-seeeeee 13

Busch v. Brunner, 36 Fed. (2d) 189..........-+-- Sec ae

Carpenter v. Prov. Was. Ins. Co., 16 Peters 495....... 13

Central Vermont v. White, 238 U. S. 507...........-- 8, 14

Chesapeake & Ohio v. Davis, 22 Ky. L. Rep. 748, 58 S. W.

ks connec eee eck hewakes See Ln Geb ESA RRORS 25 -

Chicago v. Robbins, 67 U. S: (2 Black) 418......6,18,15,17

Cole v. Penn. R. R., 43 Fed. (2d) 953........ cans a

- Commercial Electric v. Greschner, 59 Fed. (2d) 512... 10

Conn y. Penn. R. R., 288 Pa. 494, 186 A. 779.........- 20 -

Detroit v. Osborne, 135 U. 8S. 492......... Wecane eaae 17

Elliot v. Fenton, 119 Fed. 270..... tr Re eee Se Pere 11

Exnir v. Sherman, 54 Fed. (2d) SOs. oo 5<2<5s ceeees 9

Falchetti v. Penn. R. R., 307 Pa. 203, 160 A. 859. .4, 12, 18, 23

Fowler v. Penn., 229 Fed. 373.........022+seeeeeeeees 10

Frances v. B. & O.,.247 Pa. 429, 93 A. 490..........-. 19

Gardner v. Mich. Central R. R., 150 U. 8. 349......... 6

Grand Trunk & West. Ry. v. Collins, 65 Fed. (2d) 875. “11

Gray v. Penn. R. R., 293 Pa. 28, 141 A. 621.......... 20

:

a

S&F

}:

4

,

S|

a

:

iv

Hartford Ins. Co. v. Chic. Ry. Co.,175 U. 8. 91........ 13

Hough v. Ry. Co., 100 U. 8. 218. .......-.. 2 eee eee eee 6

Hawks v.-Hamill, 288 U. 8. 52............-- “eeesecees 15

Hewlett v. Schadel, 68 Fed. (2d) 502.....:24.......-- SE

Hunt v. Hurd, 98 Fed. 683.........-. eee ees ee ee cees 11

Illinois Central v. Hart, 176 Fed. 245....... io denned 11

Jones v. Southern Pacific R. R., 144 Fed. 973......... 10

Kay v. Penn. R. R., 65 Pa. 269, 3 Am. Rep. 628........ 19

Kolich v. Mononghahela Ry. Co., 303 Pa. 463, 154 A. 705 21

Koontz v. B. & O. Ry., 309 Pa. 122, 2. eee 21

Kremposky v. Mt. Joseph Coal Co., 266 Pa. 568, 109 A.

| GERI Blind ponents Seteaiee yt Mey ie ere r ey ae 19

Kuhn v. Fairmont Coal Co., 215 U. 8S. 349......-.-.... ees ae

Lake Shore etc. Ry. v. Prentice, 147 U. | ee 7

Lane v. Vick, 3 How. 464. ........2.ccccceccewcccees ae

Lindsay v. Glen Alden Coal Co., 318 Pa. ‘133,177 A. 751. 21

Liverpool Steam Co. v. Phenix Ins. Co., 129 U. 8: 397.. 7

Lodge v. Pitts etc. R. R., 243 Pa. 10, 89 A. 790........ 23

McGuire v. Sherwin-Williams, 87 Fed. (24) ae, 24

Munroe v. Penn. R. R., 85 N. J. L. 688, 90 A. 254...... 25

Myrick v. Mich. Central Ry., 107 U. 8. 102........... 15

Nat’] Metal Edge Box v. Agostini, 258 Fed. 109....... 10

_N. Y. C. Railroad. Co. v. Lockwood, 17 Wall. 357... 7, 13, 15

N. Y., New Haven & Hartford R. R. v. Fruchter, 271

Oe erry ere Terr rrr eT SEY T rere rT e. 9

N.-Y., New Haven & Hartford R. R. v. O’Leary, 93 Fed

RON Prep reine PT rr Pr reeT ery Tre eee 9

Norfolk v. M. P. Traction; 174 Fed. 607............... 10

Olcott v. Supervisors, 16 Wall. GiS oc ciciiedcscccess ces 15, 16

- Parramore v. Denver ete. Ry., 5 Fed. (2d) 912, 269 U.S .

SL Soe ee hae eE Daa kKR DADs epee ecnessekueseaddnes 11

- Penn. R. R. v. Hummell, 167 Fed. 89.............-.-- 10

eters ©. WY. C: BB, MEU ......-6-0..- 8

Pruitt v. Southern-Ry. Co., 167 N. C. 246, 83 S. E. 350.. 25

- Redfield v. N. Y. Central, 83 Fed. (2d) 62............ 11

Roberts v. Tenn. Coal Co., 255 Fed. 469,,....----+++++. 24

Schultz v. Erie R. R., 46 Fed. (2d) 485.........--++-- 25

Sioux City P. R. R. Co. v. Stout, 17 Wall. 657......... 8

- Snare & Trieste v. Friedman, 214 U. 8. 518......... 9, 13, 24

Slamovitz v. Penn. R. R., 266 Pa. 68, 109 A. 544......-. 19

Snipes v. Southern R. R., 166 Fed. pis ie one 10

Swift v. Tyson, 16 Peters 1........---.eeeeeeee ees 5, 13, 16

Steele v. Lake Shore Ry. Co., 238 Pa. 295, 86 A. 201. ..20, 23

Taylor v. Del. etc. Canal Co., “113 Pa. 162, 8 A. 6438..... 18

Texas Co. v. Brice, 26° Fed. (24) 164, cert. den. 49 Sup.

oe epee ee aN pe rere rr ret rs Tce 11

Texas & -Pacific Co. v. Greene, 291 8S. W. 929, aff'd 299

NE ee is SU ave kesdag wenn eoeeese ten 6 ..

Tiers v. Penn. R. R., 292 Pa. 522, 46% A: MOTs. cs cei a's 20

Union Pacific R. R. v. McDonald, 152 U. 8. 262...... eee

Virginia Motor Express v. Jiminez, 76 Fed. (2d) 694..." 10

Western Union v. Burris, 179 Fed. 92.........-++-- cae

Western Union v. Sklar, 126 Fed. 295........---- eee 11

Western Union v. Wood, 57 Fed, 8 Losec eeeeeeee 11

_ Western Union Tel. v. -_ 8. 2. eres a 2

2

~ Yates v. estar sos 16 Wall, GOT «on cn cic eens ccce sues 13.

TABLE OF OTHER AUTHORITIES CITED.

Restatement’ of Law of Torts, Section 285 (American

Saw Pukbbsie) vs icbccs teen iss 25

Respondent offers its apologies for the frequent use _

of quotations herein. However, the use of deceiving

summaries of cases and misleading quotations in

— brief necessitated rebuttal by express and

full quotations.

IN THB

3 ‘Supreme Court of the Anited States

Ocropmr TERM—1937.

No. 367.

- Erre Ramroap Company (a New York

Corporation ),

Petitioner,

saalaak

Harry J. TOMPKINS,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES —

CIRCUIT COURT OF APPEALS FOR

THE SECOND CIRCUIT. ©

Statement of Facts.

On July 27, 1934, plaintiff, while walking toward his home

{about 80 feet away) (Blue Print, Plaintiff's Exhibit I,

fol. 1408), was struck by an unusual projection which “looked

like a door” (fol. 141) and which was negligently permitted

to project from the side of defendant’s railroad train (fol.

556). The projection struck him on the right side of the

head (fol. 142), as a result of which he was thrown to the

a ?

"'. to be at points as much as three feet from the ties (fol. 446),

walking on the parallel path a person’s body would be at

2

ground and suffered an amputation of his right arm by the

train wheels (fol. 328). When plaintiff was struck he was

at the junction of two paths (fol. 141;-Opinion of the Cir-

cuit Court of Appeals, fol. 496), one of which ran parallel

with defendant’s track and the other crossed it diagonally

(fol. 113). The two paths were four and a half feet in width

at this point (fols. 569, 593): The edge of the meeting point

of these paths, nearest the ties, was from two to two and

a half feet from the end of the ties (fol. 130). These paths

were well beaten and had been openly and notoriously used —

by the public for periods variously estimated from twelve to

twenty years (fols. 107, 128, 323, 405, 427, 402, 429, 109, 170). -

The plaintiff had walked on the parallel path many times

when trains went by (fols. 173, 176). Plaintiff’s witnesses

had walked on the path and had observed the public walk-

ing on the path hundreds of times m the day and night |

while trains were passing, and had even observed persons |

wheeling barrows while trains were moving by the path (fols.

464, 470, 598). This parallel path was variously estimated

the plaintiff testifying it was two feet from the ties (fol. 109).

However, the plaintiff and all the witnesses agreed that while

a distance of one to two feet from the side of a passing train’

(fols. 185, 471, 538, 374), and it was not disputed that at

the junction of the two paths, where the accident occurred,

the edge of the meeting point of these two paths nearest the

ties was from two to two and a half feet from the ties

(fol. 130).

The aforementioned diagonal path «led from Hughes

Street, a stub end street, up to the parallel path, and thence

across the tracks (fol. 129). The parallel path extends

parallel with defendant’s tracks from Rock Street to Hughes —

Street (a distance of 115 feet) when it meets the diagonal

path (fol. 129). ~

i The dimensions and use of the paths were testified te only by the plaintiff

and his witnesses. Although petitioner produced a civil engineer who took

exact measurements of the topography (fols. 959, 999), it afforded no testi-

mony on this point. —

mee ee oe een ee ee Ean

3

On the night of the accident, plaintiff had alighted from —

an automobile at the Rock Street crossing (fol. 138) to go

home. His home was on Hughes Street, being the second —

- house from the defendant’s tracks (fol. 101). As he was

proceeding along the parallel path in the direction of his

home, he saw the defendant’s train approaching (fols. 140,

_ 141), and when he was but a few steps from the juncture

of the two paths, the engine passed him? (fol. 141). © Just

as he got on the juncture*® of the two paths and was about

to step down into Hughes Street (fol. 279) he was struck

by the projection (fol. 141). :

There were substantial and important gaps in defendant’s

records produced at trial (fols. 905, 906), most of its wit-

nesses were either impeached (fols. 760, 924-938, 1054-1058,

1126) or tended to show negligent inspection (fols. 1009,

737, 1099) of the cars in question and accordingly a jury

sitting in the District Court, Southern District of New York,

on the 13th day of October, 1936, awarded the plaintiff a

verdict in the sum of $30,000. Upon appeal to the Circuit

Court 6f Appeals, the judgment was unanimously affirmed ©

with opinion (fols. 496-501). , ia:

In their petition, petitioner has. attempted. to attack the

credibility of the plaintiff. Such questions -are, of course,

improperly raised at this time. Suffice it to say, however,

that although defendant, at trial, tried to browbeat. plain-

tiff into saying that he had contradicted himself in legal

’ papers which he did not draw or understand, the plaintiff's

veracity remained unscathed and the jury accepted plain-

tiffs testimony as truth, rejecting the testimony of alefend-

ant’s employees.

?

1 Which yas much the shorter way home (fol. 239; PI's. Ex. 1, Blueprint,

fol. 1408). . ;

2It was pretty dark but he could see the side of the engine as it passed

him (fols. 179, 180). A

8 Although one of plaintiff's witnesses testified that on the morning after

the accident he told a detective of defendant who was in court, all about the

accident “i.e., where plaintiff was found—fols. 382, 394), defendant produced

no one in court to contradict the fact that plaintiff was on the jyncture.

t

4

od

Introduction.

ty In substance, the petitioner contends :

First: That a Federal Court, in dealing with an injury

to a person on a railroad’s right of way, should follow a

single peculiar decision of a, Pennsylvania Court? which

states that no duty of dué care is owed to persons on longi-

tudinal, as distinguished from crossing, paths on said right

of way—rather than follow the rule adopted by almost every

State in the Union and the Federal Courts,’ namely, that

a duty of due care is owed to persons under such circum-

stances. .

This question is of no wide significance, since, excluding

the State of Pennsylvania, Courts throughout the country

have almost unanimously decided that a duty of due care is

owed to persons on all types of railroad paths. It therefore

appears that it is only in Pennsylvania that there is any ques-

tion of the State Court rule being disregarded for a different,

majority rule. Even in Pennsylvania the very decision relied

on by petitioner is confined solely to longitudinal paths—

as to cross-paths, Pennsylvania decisions are the same as in

the other jurisdictions.*

Sécond: That the Circuit Court of Appeals applied the

wrong test concerning the alleged contributory negligence

of the plaintiff, although the said Court enunciated and fol-

lowed the well-established rule that where reasonable men

1 Falchetti v. Penn. R.R., 307 Pa. 203, 160 A. 859, which is directly con- -

trary to other Pennsylvania decisions, as shown in Point I, subdivision C.

2 The lower Court adopted the rule endorsed by practically every juris-

diction where the question has been presented, namely, that “when the public

has made open and notorious use of a railroad right of way for a long period

of time and without objection, the company owes to such persons on such

permissive st a duty of care in the operation of its trains” (fol. 497,

ir

‘opinion of Circuit Court of Appeals). Cases were collected in the brief below

from close to thirty jurisdictions, from several Federal Circuits and from the

American Law Institute Restatement of Torts. Petitioner conceded in the

Court below that the overwhelming authority was in accord with the rule

stated by the Circuit Court of Appeals.

3 See infra, Point I, pone ee

may: differ the qneation of eunteibuters —— is for

the jury.

This ques#bn is of no wide significance since it concerns

itself with the application of a firmly established rule to

the particular facts of this case.

It thus appears that the questions presented by petitioner

are not of substantial or pressing significance.

It will further appear from the following that no error

was committed below:

—

I. The lower Court was correct in applying the rule

of the great weight of authority since

A. In cases involving questions of general law,

Federal Courts will exercise their independent

judgment.

This doctrine, which is now elementary, found its in-

ception in Swift-v. Tyson, 16 Peters 1} has constantly been |

reaffirmed by the Supreme Court and was most recently

applied in the case of Black & White Taxi Co. v. Brown &

' Yellow Tazi Co., 276 U. 8. 518.

‘B. The case at bar involves a question of general

law, since

1. “Supreme Court decisions have established that

questions of the type here presented involving railroad

—. are questions of general law.

The case of Baltimore & Ohio R. R. v. Baugh, 149 U. 8.

368, involved a railroad accident which occurred in Ohio.

Under a well-established line of decisions in Ohio the fellow-

servant rule was inapplicable to the case. Under the deci-

sions of Federal and other State. Courts the fellow-servant

rule applied. The Court held the fellow- servant rule ap-

plicable, saying (p.-370) : .

«* * * unvarying has been the course of deci-

sion that the question of responsibility. of a railroad ©

1 The relevant portions of the opinion and: the ‘correctness of the rufing ;

on the facts of this case are set forth in Point II.

Ld

aie

: Fe 1

at = eR. Ine SOC eR ee

6

corporation for injuries caused to or by its servant

is one of general law.

“This is not a question of local law, to be settled

by an examination’ merely of the decisions of the

“Supreme Court of Ohio, the State in which the cause

of action arose, and in which the suit was brought,

but rather one of general law to be determined by a

reference to all the authorities, and a consideration

of the principles underlying the relation of master and

servant.” (Writer’s emphasis. )

The principle of the Baugh case has been consistently fol-

lowed by the Supreme Court. In each of the following cases,

involving either railroad accidents or negligence law, the

local rule was disregarded and the weight of authority

followed :

Chicago v. Robbins, 67 U. 8. (2 Black) 418. (General

law rule applied in preference to contrary local law

rule on question of liability of land owner to passer-

by for injuries sustained due to unguarded *excava-

tion on property.) ;

The Court held (p. 428) :

“It was ‘urged’ at the bar that for court, in such

cases, follows the decisions of the local courts.

Where rules of property in a state are fully settled

by a series of adjudications, this court adopts the

decisions of the State courts. But where private

rights are to be determined by the application of com-

mon .law rules alone, this court, although entertain-

_ ing for State tribunals the highest respect, does not

~ feel bound by their decisions.”

Gardner v. Michigan Central Railroad, 150 U. 8. 349.

(General law rule applied in preference to contrary

_ local law rule on question of due care owed to plain-

tiff, injured due to hole in planking of defendant

railway.)

Hough v. Railway.Co., 100 U. S. 213. (General law

. Tule applied in preference to contrary local law rule

WB al ND Se URE Rh a a TP as wm a ST ATA a REE CINE IE BI TIES SAG B SERPS IAS) ee Sn Pree

LOL OE LE NNR ORT et eT me SF an ena eia ets a ieeny totic seal ditater tien +. a a 8 rn Pa Se

: . pa ae 4, is > :

ir ee

on question of contributory negligence of plaintiff in

continuing to work after notice of defect in defend- ~

ant’s railroad equipment. )

The Court stated (p. 226) :

“The question before us, in the absence of statutory

regulations by the State in which the cause of action

arose, depends upon principles of general law, and

in their determination we are not required to follow

the decisions of the State Courts.” —

Lake Shore etc. Ry. v. Prentice, 147 U. S. 101. (General

law rule applied in preference to contrary local law

rule on question ‘of liability of railroad for punitive

damages for acts of agent toward passenger.) F

New York Central Railroad Co. v. Lockwood, 17 Wail.

357. (General law rule applied in preference to con-

trary local law rule on question of the ability of a

carrier to limit its liability for injury to a passenger. )

Said the Court (p. 368):

“We should not feel satisfied without being able

to place our decisions upon grounds satisfactory to

ourselves and resting upon what we consider sound

principles of law.” |

Liverpool Steam Company v. Phenix Ins. Co., 129 U. S.

- 397. (General law rule applied in preference to con-

trary local law rule on question of ability of carrier

to limit its liability for injury to goods.) ,

Defendant argued that law of New York, where

contract made, controlled and was settled by recent

decisions. The Court stated (p. 423, per Gray, J.) :

“But on this subject as on any question depending

upon mercantile law and not upon local statute or

usage, it is well settled that the courts of the United

States are not bound by decisions of the Courts of

the State but will exercise their own judgment, EVEN

WHEN THEIR JURISDICTION ATTACHES ONLY BY BEASON

OF THE CITIZENSHIP OF THE PARTIES IN. AN ACTION AT

By |e

8

+

LAW OF WHICH THD CoURTS OF THE STATE HAVE CON-

CURRENT JUISDICTION AND UPON A CONTRACT MADE AND

TO BE PERFORMED WITHIN THE STATE.” (Writer’s em-

phasis. )

Reutler v. Grand Trunk Raiiway, 224 U. S. 85.

(General law rule applied in preference to contrary:

local law rule on question of applicability of fellow-

servant rule.) .

Per Homes, J. (p. 87):

«* * * So it has been decided that in cases tried

in the United States Courts we must follow our own

understanding of the common law when. no settled

rule of property intervenes.”

Central Vermont Ry. v. White, 2388 U. 8. 507. (Question

of burden of proof of contributory negligence. )

Said the Court (p. 512):

“But the United States Courts have uniformly held

that as a matter of general law the burden of proving

contributory negligence is, on the defendant. The

Federal Courts have enforced the principle even in

trials in States which hold that the burden is on.

the plaintiff.” (Citing cases.)

See also:

Baltimore & Ohio R. v. Goodman, 275 U. 8S. 266.

(Federal “Stop, Look & Listen” rule applied to rail-

road crossing accident cases although no such rule

in State where accident occurred. )

Prokora vy. New York Central R. 292 U. 8S. 98.

(Modifying Federal “Stop, Look & Listen” rule.)

Union Pac. R. v. McDonald, 152 U. S. 262.

Siouw City & P. RB. Co. v. Stout, 17 Wall. 657.

(Federal doctrine on liability of railroad for injuries

to infants on turntables, on theory of attractive

nuisance appMed in both above cases without con-

sideration of State law on subject.)

9 .

The foregoing array of authorities prompted Judge

- Learned Hand, in Cole-v. Pennsylvania R. R., 43 Fed. (2d)

953 (involving the New York rule on the spreading of fires

by railroads), to hold: 3

“It is evident. from the foregoing that the most re

cent decisions of the Supreme Court, as well as a long

line of authorities in back of it, recognizes a wide

field of general jurisprudence in which the Federal

Courts decide cases according to their independent

judgment. In this field actions involving the liability

of railroads have undoubtedly been conspicuous.”

‘The Circuit Court of Appeals and District Courts alike

have universally interpreted the foregoing decisions to in-

dicate that questions of negligence law are questions of gen-

eral rather than local law upon which Federal Courts will

exercise their independent judgment.

The following are representative holdings, in negligence

and tort cases, to that effect, and in which a general.rule of

law was applied in preference to a local rule:

C. C. A.—Ast:

N. Y., N. H. & H. R. v. O'Leary, 93 Fed. 737. |

(Question of liability of employer to employee for

negligence.) .

CO. C. A—2nd: —

New York, N. H. & H. R. Co. v. Fruchter, 271 Fed. 419

(rev'd 260 U. 8. 141 on other grounds).

(Question of applicability of attractive nuisance

doctrine to railroad turntable. )

Snare & Trieste Co. v. Friedman, 169 Fed. 1, cert. den.

214 U. 8. 518.

(Question of applicability of attractive nuisance

‘doctrine to railroad turntable.) -

Eenir v. Sherman, 54 Fed. (2d) 510.

{Question of liability without fault for personal in-

juries due to setting off of high explosives. )

10

Fowler v. Pa. R., 229 Fed. 373.

(Question of validity of release of defendant from

liability for negligence. )

National Metal Edge Bor v. Agostini, 258 Fed. 109.

(Question of applicability of attractive nuisance —

doctrine. )

C. C. Ard:

Pa. R. v. Hummel, 167 Fed.. 89.

(Question of liability of third party and employer,

for negligently supplying defective equipment to

‘plaintiff. )

0. 0. A—hth:

Hewlett v. Schadel, 68 Fed. (2d) 502.

{Question of liability of owner of car to guest for

negligence. )

Virginia, Motor Express v. Jiminez, 76 Fed. (2d) 694.

(Question of applicability of last clear chance doc-

trine in crossing accident. )

Commercial Electric v. Greschner, 59 Fed. (2d) 512.

(Question of applicability of doctrine of imputed

negligence. )

B. & Q. R. v. Thornton, 188 Fed. 868.

(Question of wrongful ejection of passenger by

railroad. )

Snipes v. Sou. R. R., 166 Fed. 1.

(Question of applicability of fellow-servant sat)

“Norfolk v. A. P. Traction, 174 Fed. 607.

(Question of liability of carrier for exemplary dam-

age for acts of servant.)

0. 0. A.—Sth:

Jones V. Southern. Pac. R., 144 Fed. 973.

= of applicability. of fellow-servant ier

eat eek aS ee ea ee ek ot eee LAP OS i tC *

b. a » x moh Ge De OR ee he a a

“<f; SES gener Rg ne ERC EE RE TT a FE TT EL LE EN a I

0. A. 6th:

Grand Trunk Western R. Co. v. Collins, 65 Fed. (2d)

875.

(Question of imputing nail of driver ie guest

: in railroad accident ease.) :

Texas Co. v. Brice, 26 Fed. (2d) 164, cert. den. 49 Sup.

Ct. 34..

(Question of agency of truck driver of defendant

in personal injury action.)

Elliott v. Fenton, 119 Fed. 270.

(Question of negligence of neKvant superior to

plaintiff. )

Western Union v. Sklar, 126 Fed. 295.

(Question of damage for delay in delivery of tele-

| gram.)

Illinois Central v. Hart, 176 Fed. 245.

(Question of liability of employer for mcqneence.

toward servant. )

Western Union v. Wood, 57 Fed. 471.

(Question of liability of telegraph company for

delay in delivering messages. )

C. C. A.— 7th:

Hunt v. Hurd, 98 Fed. 683.

(Question of a eat of fellow- servant rule. )

C. C. A.—8th:

Redfield v. Nélw York Central, 83 Fed. (2d) 62.

(Question of contributory negligence of plaintiff in

boarding defendant’s train.)

Parramore.v. Dengee etc. R., 5 Fed. (2d) 912, cert. den.

269 U. S..560.

(Question of contributory negligence in death ac-

tion arising out of collision of defendants with

decedent’s auto.) _

‘

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12

Busch v. Brunner, 36 Fed. (2d) 189.

(Question of validity of provision absolving carrier

from liability for injury to passenger on purely

intrastate free pass.)

Western Union v. Burris, 179 Fed. 92.

(Question of extent of damage recoverable against

- telegraph company for failure or delay in de-

livery of ee )

C. C. A.—9th:

Western Union Tel. v. Cook, 61 Fed. 624.

* (Liability of telegraph company for mistakes,

validity of contract exempting same.)

Exception C. C. A.—Ist:

Boston. & Maine R. R.-v. Breslin, 80 Fed. (2d) 749

(Question of applicability of attractive nuisance

doctrine to railroad PA)

(a) There is no such doctrine, as contended ve

petitioner, that where a rule is well established in «

State, the question is one of local law and Federal .

Courts must follow the rule.

Petitioner contends that where a rule is well established

in a State whose law would ordinarily be applicable under

confliéts principles, Federal Courts. are bound to follow the

same. ;

It must be noted at the very outset that so far as the -

instant case is concerned there is no well established State

rule. There is but a solitary Pennsylvania decision in point,

_ decided in 1932, and clearly contrary to other Pennsyl-

vania decisions.*

But even if the pesiniagiveditn decisions were well estab-

lished’ on the issues of this case, THERE IS NO HOLDING OF THE

SUPREME COURT STANDING FOR SUCH A DOCTRINE AS PRO-

POUNDED BY PETITIONER. Petitioner itself concedes that it

1 Falchetti v. Penn. R. R., 307 Pa. 203, 160 A. 859, analyzed in subdivision

C of this Point.

13

arrives at the rule through implication. This is necessarily

so, for all of the cases cited by petitioner on this point were

cases where the Federal Court refused to follow State Court

rulings,’ with the exception of the Bucher case and the Hart-

ford Insurance case, both of which involved construction of

State Statutes. The cases cited comld not, therefore, stand

for the proposition that State decisions will be followed,

where a rule is well established.-

on Ny = A

1 Cases cited by petitioner are as follows:

Swift v. Tyson, 16 Peters 1 (p. 21 of petitioner's brief). General

law applied in preference to contrary local rulings on question of

negotiable instruments.’ . .

Black & White Taxicab Co. v. Brown € Yellow Taxi Co., 276 U.S.

518 (p. 23-of_petitioner’s brief). General law applied in prefer-

ence to contrary local rulings on question of right to give exclu-.

sive soliciting privileges on railroad property.

Carpenter v. Providence Washington Ins. Co., 16 Peters 495 (p. 23

of petitioner’s brief). Construction of insurance policy

to be a question of general law.

Lane v. Vick, 3 How. 464 (p. 23 of petitioner’s brief). Construction

of will held to be question of general law and local decision dis-

regarded.

Chicago v. Robbins, 67 U. S. 418 (p. 23 of petitioner’s brief). Negli-

gence of landowner in Chicago held to be a question of general

law and local decisions disregarded. .

Yates v. Milwaukee, 10 Wall. 497 (p. 23 of petitioner's brief). _Hold-

ing that question of what constitutes a dedication of land to public

use is a question of general law; local decision ignored and con-

trary general rule applied.

New York Central R.R. v. Lockwood, 17 Wall. 357 (p. 23 of peti-

tioner’s brief). Ability of carrier to limit its liability for injury

to passenger held a question of general law.

Burgess v. Seligman, 107 U. S. 20 (p. 24 of petitioner’s brief). Two

local decisions squarely in point on question of liability of pledgee

of corporate stock for debts of corporation, disregarded and

general law applied. !

Kuhn v. Fairmont Coal Co., 215 U. S. 349 (p. 24 of petitioner’s

brief). Local decision disregarded and general law applied on

question of implied obligation to support surface in lease of sub-

surface mining rights.

Snare & Triesi Co. v. Friedman, 169 Fed. 1, cert. den. 214 U. S. 518

(p. 25 of petitioner’s brief). Federal rule in turntable case ap-

plied in preference to State decisions where accident occurred.

property, such as involved in this case. Held: “Under such circumstances,

that decision [State decision] being upon a question of statutory and local

law was rightly followed by the Circuit Court” (p. 108).

a aE tak dt atte Se BE

14

‘ (b) The doctrine is that the subject-matter, not the

degree to which State decisions are settled, deter-

_ mines whether a question is general or local in.nature.

> Petitioner’s theory crumples under the weight of square

: sini Court holdings directly contrary to the theory.

In Baltimore ¢ Ohio R. R. v. Baugh, 149 U. S. 368, the

Ohio rule was so well established that even the highest Court

of Ohio felt that the rule would “doubtless be accepted -as

authoritative,” although they disagreed with its wisdom.

Yet the Federal Court disregarded the Ohio rulings and

followed the majority holdings, stating that the subject-

matter was one on which the general or common law would

be applied."

The latest pronouncement .of the Supreme Court on this

subject, Black & White Taxi Co. v. Brown & Yellow Taxi Co.,

276 U. S. 518, belies the theory advanced by petitioner.

There, although it had been settled for thirty-five years in

‘Kentucky that a railroad had no authority to grant exclusive

soliciting privileges at its stations to Taxi Companies, the

Kentucky rule was disregarded and the weight of authority

to the effect that such licenses were valid, was followed.

(The license and place of performance were in Kentucky.)

The Court stated that the subject-matter involved was one on

which Federal Courts were not bound by State decision.*

In the case of Central Vermont Ry. v. White, 238 U. S. 507,

the Supreme Court again refused to follow a long established

State ruling that the burden of contributory negligence was

upon the plaintiff even though it considered the question

one of substance. In the following cases clear and un-

equivocal rulings by State Courts which would have governed

under principles of conflicts were ignored in favor of majority

rulings. In none of them does the degree to which State law

is settled. concern the Court. The essential determinative

. factor is the SUBJECT-MATTER involved:

1 Relevant quotation ‘may be found at page 5.

2 Relevant quotation may be found at page 15.

& Relevant quotation may be found at page 8.

a ee ee ee Ee eS

Nad = PERIL ITE PPO Ee RP

Chicago v. Robbins, 67 U. S. (2 Black) 418. (Rule on

liability in negligence of owner of land for acts of

independent contractor.) => | hn ae

N. Y. C. R. R. ¥. Lockwood, 17 Wall. 357. (Rule on

ability of railroad to contract itself free of liability

for negligence. ) ;

Myrick vy. Michigan Central R. R. Co., 107 U. 8. 102.

(Rule on liability of a railroad for safe delivery be-

yond its own line.)

Olcott v. The Supervisors, 16 Wall 678. (Rule on power

of a county to tax in aid of construction of a rail-

road.) .

Beutler v. Grand Trunk Ry., 224 U. 8. 85. (Fellow-

servant rule.)

The statement in petitioner’s brief (p. 27) that “Even a

_ single decision, if ‘clear and unequivocal’ and constituting a

‘definitive holding’ should be recognized as controlling,”

citing Hawks v. Hamill, 288 U. S. 52, is very misleading.

Hawks v. Hamill involved a State decision interpreting the

Strate CONSTITUTION and this Court merely stated (p. 58) :

“If the single decision interpreting a constitution

or a statute is clear and unequivocal submission to its

holding has developed in these days to a practice

* * *» (Writer’s emphasis). ip

2. Questions of the type here presented, involving

railroad accidents, are general rather than local in

nature.

Petitioner contends that the instant case is distinguish-

able from the numerous Supreme Court cases cited in this

brief, on the ground that there is here involved a question

‘local in its nature.”

The holding of Black & White Tazi Co. v. Brown & Yellow

Taxi Co., 276 U. 8. 518, furnishes a ready answer (p. 529):

“There is no question concerning title to land. No

provision of State statute or constitution and no

ancient or fired local usage is involved. For the dis-

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16

covery of common law principles applicable in any

case investigation is not. limited’to the decisions of

the Courts of the State in which the éertiorari arose.”

( Writer’s emphasis. )

The holding of Olcott v. The Supervisors, 16 Wall 678, is

equally appropriate (p. 689) :

“It is undoubtedly true in general that this Court:

does follow the decisions of the highest court of the

states respecting local questions peculiar to them-

selves, or respecting the construction of their own con-

stitution gnd laws. But it must be kept in mind that

it is only decisions on local questions, those which

are peculiar to the several states, or adjudications

upon the meaning of the constitution or statutes of

a state; which the-federal courts adopt as rules for

their own judgments.” (Writer’s emphasis.)

&

Swift v. Tyson, 16 Peters 1, the progenitor of the rule, like-

wise advances a conclusive reply (p..18) :

©?

“In all the various cases, which have hitherto come

before us for decision, this Court has uniformly sup-

posed, that the true interpretation of the 34th Section

limited its application to State laws strictly local,

that is to say to the positive statutes of the State,

and the construction thereof, adopted by the. local

‘“fribunals, and to rights and titles to things, having

a permanent locality, such as the rights and titles to

real estate, and other matters immovable and intra-

territorial in their nature and character. It never ~

has been supposed by us, that the Section did apply,

or was designed to apply, to questions of.a mere gen-

eral nature, not at all dependent upon local statutes

or local usages of a fixed and permanent operation,

as for example, to the construction of ordinary con-

‘ tracts or other written instruments, and especially t to

ee ma of-general commercial law * * *”

Re There is not involved here any “title to land,” and igaat

or fixed local usage,” “State statutes” or “Constitution.”

Nor is there involved here a question, “peculiar to” the

State of Pennsylvania. This Court will judicially notice that

railroads extend into every State of the Union, and the same

problems of railroad accidents and injuries to persons on

. beaten paths exist throughout the land. One has but to

consult the numberless cases dealing with such accidents

which are reported in every jurisdiction, in order to see the

national scope of the problems involved. ; mPa

The same practical reason whch had some influence in the

decision of Baltimore & Ohio R. R. v. Bawgh, 149 U. 8. 368, is

present here. Here, as in the Baugh case, we have a railroad

extending over many State lines. The employee there in-

volved, like the pedestrian here involved, was located exclu-

sively in Ohio. The Court said: or

“As it (the railroad) passes from State to State ie

must the rights, obligations and duties subsisting be- _ |

tween it and its employees change at every State

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With equal appropriateness it may be stated here, must

the rights, obligations and duties subsisting between the rail-

road and pedestrians change at every State line? If the

facts of Chicago v. Robbins, 67 U. 8. {2 Black) 418, which.

involved the liability of a landowner for negligence toward @

passerby on a street in Chicago were held by the Supreme

Court to present a question of general law, certainly the

instant case may be said to be an a fortiori case.”

The petitioner concedes ‘(p. 11, petitioner’s brief ) that the

issue of contributory negligence presents a question of “gen-

* 1He worked ir and out of the Town of Bellaire, Ohio.

2 The contention of petitioner (p. 29 of petitioner's brief) that the instant

case is closely analogous to Detroit v. Osborne, 135 U. S. 492, is clearly belied

by the following quotation. After showing that Michigan statutes, as imter-

reted by State Court decisions, exempted the defendant municipality from

fiability to plaintiff for defective sidewalk, the Court said (p. 498):~

_ “The question is not new in this court. In the case of Ciairbourne County

y. Brooks, 111 U. S. 400, 410, it was held that, “When the settled decisions of

the aos Ing of : —_ rp paca tarps the extent and character ne -

powers which its political and municipal organizations may possess, de-

cisions are cathavnatiee upon the courts of the United States’; and in the

opinion it -was observed: “‘It is undoubtedly a question of local policy: with

each state, what shall be the extent and character of the powers which its

various political and municipal organizations shall possess; and the settled

decisions of its highest courts on this subjgct will be regarded as authoritative .-

by the courts of the United States, for it is a question that relates to the

internal constitution of the body public of the State.’

“What was there decided in reference to the powers is equally true as to

the liabilities of a municipal corporation.”

18

eral law.” To be consistent, certainly, the negligence of the

defendant at the same time atid place must also be cénsidéred

a question of general law.

Dictates of logic compel a choice of the beaten path rule

followed throughout the country,.in preference to the soli-

tary decision of the State Court. Wherever the question -has

arisen, tribunals of the land prompted by motives of humanity

have created a duty on the part of railroads to use due care

toward persons who are likely to be upon beaten paths on

their right of way. Certainly it is within the province of a

railroad company to protest such user and discontinue the

practice if it so desires.

C. The solitary Pennsylvania decision upon

which petitioner relies is of doubtful sti ae

-to the case at bar.

1. Said decision is clearly contrary to other de-

cisions in Pennsylvania.

The case relied on by petitioner, Falchetti v. Penn. R. R.,

307 Pa. 203, 160 A. 859, allegedly stands for the proposition

that a railroad owes-no duty of due care to a person on a

well beaten path parailel to “a railroad’s tracks and on its’

right of way, as Daan, foc we from a permissive crossing

over them.”

Decisions in Pennsylvania luvs uniformly held that a

duty of care is owed to persons on both longitudinal and

crossing paths. The following are longitudinal path cases:

- Taylor vy. Del. ete. Canal Co., 113 Pa. 162, 8 A.'43. Plain-

tiff injured while on a beaten path which “was used, so far

as the testimony shows, by persons not for the purpose of.

crossing directly across the tracks to reach a point, but for

the purpose of going along the track itself, within the right

of way of the railroad” (p. 164). Held: “Under the allow-

ance of this permissive way, therefore, the defendant com-

“ pany was bound to use reasonable care” AD cd Judgment

_ for defendant reversed.

19

Slamovitz vy. Penn. R. R., 266 Pa. 63, 109 A. 544. Panic:

tiff injured while walking of a “generally used and well

beaten path located between the track and the before men-

tioned concrete wall” (p. 659. Held: Duty of “close look-

out” required of defendant. Judgment for plaintiff affirmed.

Kremposky v. Mt. Jessup Coal. Oo., 266 Pa. 568, 109 A.

766. Plaintiff injured on a trestle for coal cars on ‘defend-

ant’s private property. “A double track railroad occupied

the center of the bridge, on each bide of which was a plank

» walk four or five feet in width. * * * For many years prior

to the accident people, both adults and children, had been

accustomed to use the walks daily as a short cut” (p. 571).

Held: The walks had become permissive ways. Judgment

for plaintiff affirmed. “It is the duty of the owner of prem-

ises to exercise reasonable care to avoid inflicting injury

upon those using a permissive way thereon” (p. 572).

Francis v. Balt. & O. R. R. Co., 247 Pa. 429; 93 A. 490.

Discussing certain testimony, as to the adiniaatin of which

defendant claimed error, the Court said: “This testimony —

was direct and positive and, if believed, was entirely suffi-

‘cient to establish not only the fact of the existence of a path

along and upon the ties of the railroad at the point where -

_ the accident occurred, but the further fact of its frequent

‘and continuous use by the public for the period above men-

tioned” (two months) (p. 429). Held: Judgment for plain-

tiff affirmed. “When the railroad company knew or should

‘have known that part of the tracks through its yard was

_ being used by the public in the way shown by the testimony,

except. as it interfered and prevented such use, a duty at

-gonce attached to exercise a degree of care in operating its

cars thereon corresponding to the increased risk” (p. 429)...

~ ‘Kay v. Penn. R. R., 65 Pa. 269, 3 Am. Rep. 628. “* tae

along the tracks where the accident happened a well-worn

. footpath was plainly visible” (p. 272). Plaintiff was on

this path when struck by one of defendant’s trains. Held:

Nonsuit reversed. A duty existed to use reasonable care

_ toward those on the pathway. |

- Petitioner concedes that Péoiaivtianta'a decisions require a

~ duty of due care: toward persons on cross-paths (see cases, ©

ia ms of t petitioner's brief). : ;

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20

The cases cited by petitioner on page 17 of its brief are

set forth in such a manner as to make it appear that they

support the Falchetti case. The cases have absolutely noth-

ing to do with the duty of due care owed to persons on

beaten pathe: ;

Tiers v. Penn. R. R., 292 Pa. 522, 141 A. 487. Plaintiff

injured. while crossing railroad, at a place where no path

existed. The Court stated, in reversing’a verdict for the

plaintiff (p. 527); “If the evidence established a definite

permissive point of crossing and while traversing such path.

plaintiff was injured a recovery might be had. That was

the situation presented to the Court in Steele v. Lake Shore

Ry. Co., 238 Pa. 295, 86 A. 201, relied on by appellee. There

the regular walk was obstructed and plaintiff followed a

well defined beaten way along * * * and over the tracks

at a point beyond * * * but no such facts appear .here

* * * There is no evidence that there was any defined -

passageway at or near the place.mentioned.” A different

ruling, said the Court, would render “most difficult, if not

impracticable a proper operation of trains for the con-

venience of the public.” It is the last quotation which peti-

tioner set forth in its brief. 4

Gray v. Penn. R..R., 293 Pa. 28, 141 A. 621. - Plaintiff

. injured while proceeding along defendant’s tracks. Held:

“They: did not’ establish that there was a well-defined path,

but their testimony was that people walked wherever they ~

pleased on the tracks” (p. 31). J ra tac for defendant

affirmed.

* Conn v. Penn. R. R., 288 Pa. 494, 136 A. 779. Plaintiff,

pa was injured while walking under a bridge. and

parallel to defendant’s tracks. Plaintiff relied on the ex-

istence of a beaten path under the bridge, saying that it was

used frequently by other boys. Held: No beaten path was

established. Page 502: “A permissive way is a license to

‘pass over the property of another; it may be either express

or implied, but must, however, be restricted to 4 well-defined

location and especially in the case of an implied public per- -

mission must be frequently, notoriously and continuoysly

used by the public, to raise the inference of acquiescence on _

PAL

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21

the part of the landowner in such use.” Page 508: ‘The tes- nt)

timony does not show that there was ever any regularity or

continuity in the trips of the boys under the bridge.” Judg-

ment for plaintiff reversed. ;

Kolich vy. Mononghahela Ry. Co., 302 Pa 463, 154 A. 705. at eee

Plaintiff injured while crossing defendant’s tracks. The case ey de

rests solely on the contributory negligence of plaintiff. The |

Court held: “The jury’s finding that this was a permissive

crossing * * * had ample evidence to support it, as had

also their finding that defendant was guilty of negligence in

giving no warning of the approach of its train thereto. This

leaves open only the question of plaintiff's contributory neg- | Bee

ligence, which we think was clearly established” (p. 467).

- Judgment for plaintiff reversed.

Koontz v. B. & O. R. R& 309 Pa. 122, 163 A. 242. Plain-

tiff injured while crawling under one of defendant's freight

trains. Held: No duty of care was owed since, “Instead of.

showing the existence of a permissive crossing, the evidence

showed that no such crossing existed” (p. 127). Judgment

for plaintiff reversed.

Lindsay v. Glen Alden Coal Co., 318 Pa. 138, 177 A. 751.

In this case plaintiff’s°intestate after ascending a 12-foot

wall of concrete was climbing up a railroad embankment

when killed by a live wire. After holding the deceased

~ guilty of. contributory negligence, the Court stated: “The”

evidence that people ran up the concrete and then walked

at one place or another over the culm bank to the top is not

of such a character as to establish a right of way or to put

,an increased burden on defendant in the circumstances dis-

closed by the evidence. See Suthold v. Ry. Co., 47 Pa. Sup.

137; Conn v. BR R., 288 Pa. 494; Falchetti y. Pa. R. R.,

307 Pa. 203. Decedent’s heedlessnegs resulting in his death”

(p. 137). Judgment for defendant ‘affirmed. — (This case is.

cited by petitioner as approving the Patchetti case. See

page 17, petitioner’s brief.)

It-is important to note that the Sane who wrote the

opinion in the Falchetti case was apparently utider a mis-

apprehension as to the law of Pennsylvania, for it is stated:

as follows: ; poe

ceo igiear aprrirton alate niateeaemmmmaanaiel e nmneath tn mamnaeseet ampsamnanarenacencean saieeeanncmmepaaiens memianbaarsann teeta aannen - .

pe: SRS arate ict rd aptamer tae ate rt cae a ae ae eee pene tn ~ vas ree area la etl hanerhtanineaeiciacs aha reerpreee erarerere gang semagrnpewra=a ahyent ;

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26

great, if anything should-happen to be projecting from

» the train; but we cannot say that this particular ©

danger was likely, in view of the testimony of the —

train checkers that seldom, if ever, had they known a —

door to swing open.”

Nor-can it be urged in earnest that tne time or attention ©

of this Court should be devoted to a detailed analysis of the

facts in order to see whether this plaintiff was guilty ‘of

contributory negligence in this single case at bar. Volumi-

nous testimony was presented relating to the widening of ~

‘the paths at the point of the accident’ (the parallel roe :

widened out to about 414 feet at this point, fols. 569, 592, —

593), ‘the user of the paths by the public at night (the paths

were used at all hours of the day and night WHILE TRAINS |

WERE PASSING, fols. 462-470) ; the frequent use of the paths

by the plaintiff (fols. 173, 176) ; the distances of the paths

from the tracks (the edges of the two paths were about 2 to q

21% feet from the ties at the place where the: accident oc

curréd, fol. 130). Two lower Courts aril a jury have decided. ;

_ inthe light of all these facts, that-the plaintiff was not guilty

of seein’ gat Spin eeee

° a rn : fo

in CONCLUSION.

It is renjectfally submitted that there are no ques- 3

tions here presented warranting certiorari and that peti-

tioner’s application. for a writ should, thérefore, be —

sas Ia | cote

. ALEXANDER L. STROUSE, =|

WILLIAM WALSH,

BERNARD G. NEMEROFF.

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