# Opposition Brief — Erie Railroad v. Tompkins (No. 367) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0011%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1937 ## Text SEATS r 32 ‘3 a ee wr, ox. ms et ht caihia ; By Syg ers Net if e al ” i ROLES: Woe d tiwe % go eer Fad | 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 : 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 “ 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- Sa a ee =e See sig ht 50 sate cae men nn rg Grae # 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 1 eee Ul BAN sally bal i ir, ss of war ns EY ™ a is : = oe rs ~ ovale prone +4 1 a ' * « ‘ A Cr oe A y Ay G roe #7 Tage eo) a4 ots wt. Etim NX eT ae ie pees A oo Be th . s aye Rh AR SA RNS ETO Rel he eta a ey Re ee Se ae ig £ =,” ‘ " rer! 2), ae y a ; ae 1 ae ee he a Pipe pein . 3, habe ant alia Ne ‘ c Pa hati get OU - op DETTE OPC TELNET Y Start s i oa yuh eer “oF erat.) SEE an OR ap = oe ee Tee line.” “> 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). : ; LARA S AT LIPO LEO Si re RD TE A ad I ID a ae ep POL . rR wOR Pua ot in Nene enue Ap hatte Se ee Poeen-artanete (nepetenandeemaanerae hermanos ; 4 Pri ativan s ao ecer aa wht ide Nee a, 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 ot aie ee Rd a <> x feats we ate okey oe > ig e Ped Se ant eet ene Sete . aie ty Gh ial ie teeny eres * we PO ae are eR ON ae Ne pee ny met ad a afer Aa ee aoe lel Sele see “ P » a ¢ ~3 : ate Ree potas ; eae Pree a i pisck as 13e, wore te eee ae oe Pare 5 ete ae e eee res aoe sche ee ee ewe aces x . ¥ a7 ec? TW 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 ; Fibs athe ean gek nl sg SR aA, ee BS Bais Seen ae Ges, saeco i err Seni) a Saas SES Saws Ty Rage ete Pe oot ORD Me AY Ra NR SR i ; 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. = q ; = 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0011%3A5. Public record. Not legal advice.