Petition for Writ of Certiorari — Lilly v. Grand Trunk Western R. Co.

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SUPREME COURT OF THE UNITED STATES

Of Counsel:

‘ Octoser Term, A. D. 1941.

Not) “297

Land NORVEL I. LILLY,

Petitioner,

Us.

GRAND TRUNK WESTERN RAILROAD COMPANY,

4 CORPOR ATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE. COURT, FIRST DISTRICY- OF THE

STATE OF ILLINOIS, BRIEF | IN SUPPORT

THEREOF. © a

Se SaMUEL COHEN,

: 130 N. Clark Street,:

Chicago, Hlinois ’ |

. Counsek for Petition r

WiiuiaM H. Hak uices

Minneapolis, Minne ‘sota.

~ Epwarp B. Hensler.

Chicago, Hlinois,

INDEX-:

| . PAGE

Petition for writ’ of certiorari............ en ee 2 1

= Summary’ Statement of Matter Involved........ 1.

’ - Opinion of Court below... PEN Tae ARE - 3

Pleadings ...................--- shinee aban, Soecipweishatinnes 3

B Bhatommemt of thew Cone. c.cco conocer ciineneeceencecesoens q

; t Jurisdiction of the Court... pdt atanists 5

Questions Presented ...2.0000000.... faaness Mn «6

Reasons Relied on for allowance of Writ... 7

I ee 9

' ‘Brief j in support of petition for € ‘ertiorari ee gicscuniees | ws

| Statement of Case. 0) o cn icagsteranas ie Al

' Specifications. of errors urged 2

Summary of Argument |...................... Se ee 13

I. The evidence shewed a violation of the

Safety. Appliance Act, but the Courts

on appeal refused to give effect to this

as Act, as justified by the pleadings, the

ev idence: and: the law and refused to

consider or give effect to the rules of the

Interstate Commerce Commission... a 13

“Il. The - amendment abolishing assumption |

of risk was ‘retroactive, but the. Courts

on. appeal below refused to give effect to

i this amendment, by’ holding ‘assumption

: of risk was a defense.....................-s.cseseeseee * 18

III. The evidence shows clearly, without con-

tradiction, aided by a tacit admission

of respondent, it was ample to warrant a

. finding respondent was negligent, but the

Courts below on appeal erroneously cast ~

doubt on this —— fis ERE. S silaipambaentistoneai 21-

ge kes

| PAGE.

IV. Assumpticn of risk was submitted to the —

_jury_and found in petitioner's favor, but

the Courts below on appeal, erroneously

and unlawfully set aside the finding of

the jury in. the trial Conrt and held as-

sumption of risk as a matter of law: ‘93°

V: The Courts below on appeal violated the

Constitution and law by usurping the’

function of the jury in making a finding

as a matter of law that which was a mat-

ter of fact—the question of assumption ms

Re eee . g

VI. The decision of the Appellate Court is. :

contrary to applicable decisions of the

Supreme Court of the United States and

at variance with decisions of other Cir-

.cuit Courts of Appeal and the State

Courts . neta big ala eh ay’ ast 13 et seq.

ME Sie it FNS ne 2 oa ear nie es eco

Cases Crrep.

; Arizona Copper Co. v. Hammer, 250 U. S.-400 eh

Baltimore & O. R. Co. v. Groeger, 266 U.S. 521... 13, 14

Bell v, Terminal R. Co., (Mo.), 18 S. W. (2d) 40... * 9,27

Brady v. Terminal R, Co., 308 U.S. 1000000 +7, 18

Cana v. U.&., 166 U: &. Fi1................ eee atcoke tage

Campbell v. Holt, 15-1. $620.00

Carpenter v. Wabash R. Co., 309 Vv. S. Saree 20)

Chesapeake & O. R. Co. v. Mihas, 280U.S.102..000~2~=*«6

‘Chesapeake & O, R. Co: v. Profitt, 241 ig S. sigs aie ~

Chicago, G\ y. R. (sc. v. Rambo, 298 U. Ore a

Chicago, M. St. P.€ P. ‘R. Co. v. Linehan, 6 t 7 ea aan

os PO EIS EIS RM vtec eos I ALLEN AE, OARS Oe 8

N. O. F. P. *ee Co. v. Thompson, : 26 F.1....... eet ana

. R. I. & P. Ry. Co. v. Ward, 252 U.S. 18.......,2........... 24

Cross v. C. B&Q. R. Co., 191 Mo. App. 202, 186 S. Ww,

RCS TEAR ARE TED lsc ante elanicaiAliacesiegledictties 25.

iii

PAGE -

ss (Casts Crrep: ( Continued ‘Rises ue

Elsig v. Gudwangen, 91 F. (2d) 484.000.00000..ccccccccceeesesee 0

Ewell v. Daggs, 106 U.S. 1480... ccce eile 20. -

Ford v. N. Y. & H. R. Co., 54 F. (2d) 342, cert. den.

* +965 U. 8. 840..:...2.02 een pra nh an nee ae ee 9,17

Goulette’s Admr. v. Grand Trunk R., 93 Vt. 266, 107 F

SD ___ rhs Sone ociaria ter eenben une tL nner 16

Graboski v. Bernheimer- Leader Stores, 156 Md. 146,. Seite

. 143 At. 706 — ee ere TTT TEL TE MP ae TE Ft IY \ 22

| dessin x. Cooley, 281 U. Ss. ag nee

Hatton v. New York, N. H. & H.R. Co., 261 F. 667:....... 24 .

Headrick v. H. D. W illiams Cooperage Co., 134 8. W.

RS DAES ye SR ee a Eee ODES cotecenapen setaesenesbenenes Sere

Hine v. Belden, 29 Conn. ae alone 19

_ Houlihan v. Com. River ‘Company, 42 N. E. 108., jae ee

Illinois Central R. Co. v. Skinner’s Admr., (Ky.)

ORE ek ae ra i Or Saas 9

Jacob v. City of New York, 62 S. Ct. 854.0000... 8, 29

Jenkins v. Collard, 145 U.S. 546.0220 ica es s

Kanawaha & M. R. Co. v. Kerse, 239 U.S. 576... Oe ae 24

Keys v. Pennsylvania R. Co., 308 U.S, 529... Sicbideriedd .- 2

Keys v. Pennsylvania R. Co., 104 F. (2d) 663............

Knight v. United Land Association, 142 U.S. 161........ 8-

Kulp v. Chieago, St. P. M. &.0O. Ry. Co., 88 F. ad ‘

a UE, CR, FE UPI scteesiccieecnane _ 8, 21

Lehigh Valley R. Co. v. Beltz, 10 F. (2d) 74, cert.

a OU. 8 EE ee

Lilly v. Grand Trunk. Western Railway Company, ae

__ 312 1. App. 73,-37 N. E. (2) 868...:......:..0.0... cee. Ae.

Louisville &'N. R. Co. %. Layton, 243 U. S.-617........... 2 7

Melody ¥. Des Moines Union, R. Co. (ia. ) 14 N.W., 5

le ee ee Pe : 9

Missouri Pac. R. Co. v. Aeby 275 U. S. ae 25

iv —

"PAGE *

can ; Cases Crtep (Continued).

3 Misses! Pacifie R. Co. v. Boyd, 106 S. W. (2d) 165... 9.

_Missouri Pae. R. Co. v. Siratt,.78 F. (2a) SS a

. Norfolk & W. R. Co. v. Riggs, 98 F’. (3d) 613................ 27

- - Northern Pac. Ry. v. Berven, 73°F. (2d) 687............ 9

Railroad v. Grant, 98 U.S. 398. ear HANS 20°

____—__-—Raitroa dv. Stou it, 17 W allace 657, 663... 23

Reams v. C. M. & St. P. R. Co. (Minn. ) 931 N. W. 236 i)

-Roeco v. Lehigh Valley R. Co., 228 es A i tinesconins 27

Schlemmer v.-Buffalo P. & P. R. Co., 205 U. BS. 1........ 8,24

* ‘Seaboard Airline Ry. Co. v. Horton, 233 U.S. 492...

Sinclair Oil & Gas Co. v. Langley, 293 S. W. 1015........ 27

South Carolina v. Gaillard, 101 U.S. 433.000.000.000... 8, 20

Southern R. Co. v. Lunsford, 297 U, = Fea “ 13°

~ $t. Louis, I. M. & S. R. Co. v. Taylor; 210 U. S. 281...... 7

St. Louis, I. N. & S. R. Co. v. Yates, 165:°S. W. 282, °

a i 27

Swinson ' v. Chicago, St. P. M. & 0. Ry. Co., 294 LU. S.

a ae i

Terminal R. Ass’ n of St. Louis v. Farris, 69 F. (2d)

ARERR SIS NES EGER ASR ER ae 21,27

Sinan & Pac. R. Co. v. Archibald, 170 U. 8. 665...... a4.

‘Thomson v. Boles, 123 B. | EB _ SenaeeRangee Sia AR is 27, 28

Thompson v. Mo. -Pae. R. Co., 15 F. (2d) 28... Fe

United States v. Baltimore & 0. R. Co., 293 U.S. 454

cid 8, 13, 14

-U nited States x VY. Gini oT: Peggy, 1 c rane, 03... re oe 20

V andenbark v. Owens-Illinois Glass Co., 311 U.S. 538 8, 20

Virginia-Portiand Cement Co. v. Swisher’ s Admr., 94

S. E. 159... eee i i Vee

York v, ©. M.& St. PLR. Co. (Wis.) 198 8: W. 377), 4

PAGE

Statutes Crrep. hy

Federal Employers’ Liability Act, Amended August

11, 1939, 45 U. S. C. A. 1941, Cumulative Annual .

Pocket, Supplement, Chap. 54, p. 182......+........... 9, 8,48

Federal Employers’ Liability. Act, Act of Apr. 22,

a 1908, ¢. 149, Sections 1, 3; 35 Stat. 65.66 (45 U.'S.

: 1. A. Chap. 2, Sees. 51; 58): anna 31

nae Safety Appliance Act, (45 U. 8. oe Chap.

1, Section 23; June 7, 1924,-¢. 355, No. 2, 43 ee

BRE Sica A Adenine inher cnbaidhinncathaGicpinelianpaiginihnnneladees . $2

Judicial Code, See. 237(B). oe tees ii. Pacem -6

Rules of -the Interstate Commerce’ ‘Commission,

152(a), (b) and (c) orders dated Oct. -11, 1915. to

Féb, 21, 1929, inclusive—Official Pamphlet I. CLC:

Commission—also Roberts Federal Liab. of Car-

riers, Vol. 2, Appendix X, pp. 2068-2069............ war 32

Rules of.the Interstate Commerce Commission, Rules

153(a), (b) and (c) orders dated Oct: 11, 1915 to -

‘eb. 21, 1929, inclusive—Official Pamphlet I. C. C.

“‘Commission—also Roberts Federa! Liab. of Car- |

riers, Voh2 » Appendix X, pp. 2068-2069... =e

. | Text Booxs Crreb.

Cooley, Principles of Constitutional Law, 3rd Ed.,

ie See! RO: TRAN Reem er PBC Oene 19

~ Lewis Sutherland, Statutory Construction Vol. 2, |

p-. 1209 CRE TT, ee ae Niesncensed hich etiubedbibbbbeiniisa ccansibiminaiec basis oe 1 9

Roberts Fed. Liabilities of Carriers, Vol. 2, See. 1020 - 15 -

Roberts Fed. Liabilities of Carriers, Vol. 2, 2nd Ed.,

Appendix V, pp. 2068, 2069.00.00. 10, 11, 14, 32, 33

White—Personal Injuries on Railroads, Vol. 1, pp.

A) Snes LORETO NIN RE ARI INTENSE 21, 28

SUPREME COURT. OF THE UNITED STATES

IN' THE _°

Ocressn Texm, A. D. 1941

BE gia diate ,

———EEEEEE—————

NORVEL H. LILLY,

; Petitioner,

rs,

GRAND. TRU NK WESTERN RAIL RC IAD c OMPANY, .*

A CORPORATION,

: e2 Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT, FIRST DISTRICT OF THE

STATE OF ILLINOIS, AND: SaInr IN SUPPORT

THEREOF.

May It PL EASE THE Court:

The petition of Norv el H. Lilly respectfully shows to this :

Honorable Court:

Summary Statement of Matter Involved.

' This action under the Federal Employers’ Liability Act

and the Safety Appliance Act arose out-of an accident

Wherein petitioner, 'a brakeman, sustained personal in-

Juries.when he fell from the.tender of a locomotive as he

was pulling a water spout. over the manhole by means of

a long pole, preparatory to filling the tank with water. The

" accident occurred on February 6th, 1937, at Ferndale, Miclr.

igan. The parties were engaged in interstate commerce.

A general verdict of $32,500.00 was setieed by ‘the jury :

and sustained by the. trial court (R. 10-11, 171)', but apon.

appeal by respondent, the Appellate Court of Illinois, First

- District, ordered .and directed judgment in favor of re-

‘spondent, notwithstanding the verdict, and this judgment

was,-in effect, affirmed by the Supreme Court of Illinois by

denying petitioner's request for leave to appeal (R. 226), -

making the judgment of the Appellate Court of Illinois

final.

The Illinois courts refused to apply ‘the Ronee of

the Safety Appliance Act that it shall be unlawful to use

any tender unless all its parts are in proper condition and

- safe to operate without unnecessary peril (45 USCA, 23)

and further refused to apply Rule 153 of the litersfate

_Commerce Commission that. the top of th tender behind the |

fuel space should be kept clean” and means provided to

‘carry off waste water, ——

It appeared without dispute that petitioner was caused

- to fall to the ground when the pole and its hook slipped on

” the water spout and his feet simultaneously slipped on ice

__on the top of the tender.

Opinion of the Court Below.

The opinion in the Appellate Court of Mlinois,. First

‘ District, is reported in Lilly v. Grand Trunk Western Rail- ,

way Company, 812 Ill. App. 73, 37 N. E. (2) 888. Copy of

+ the opinion, Rec. 226 et seq.

‘R. refers to Transcript of Record.

]

The Pleadings.

Insofar as presently material, ‘the complaint ‘charged

general negligericve with respect to the presence of the ice =

on the tender (R. 4, 5) and, further, alleged a violation of

the Safety Appliance Act in two — and re

respects : :

. D. that by re reasori of ice and other pane materials the

tender was in an improper condition and was unsafe

to operate in the service without unnecessary peril

to life and limb (R. 5); ere

FE. that by reason of a crack or hole which - permitted

fe leakage, the tender was in an improper condition and

was unsafe to operate in the service without un-

necessary peril to life ahd limb (R. &, 9).

_ Respondent denied all the above charges and pleaded

assumption of risk and contributory negligence as com-

plete defenses. At its request, a special interrogatory was)

_ submitted to the jury (R. 169) and answered in.the’ nega-

tive (R. 10), inquiring as to whether there-was any leak near

the manhole collar. - The Appellate Court accorded a firiality

to the jury’s answer which it was unw illing to give the

‘verdict on the other fact issues in the case. For present

purposes only, we will assume, without conceding, that the

answer to the interrogatory eliminates from the case any R

claim of defect in. the tender itself, leaving such questions

only as arose from the presence of the ice upon the tender ~

from negligent causes, as a violation of the Safety Appli-

ante Act.

All’ the ice Was bchina the fuel space and within the

prohibitions of Rule 153 (R. 79—Photos. 109-11 5).

The special intetrogatory related solely to charge “—"

ahove, and the Appellate Court of Illinois ignored and re-

fused to apply the Federal Safety Appliance A Act to charge

Saat

Sak.

‘“‘D’’ above. Therefore, the aiswer to thin interrogatory

in ne wise removed the charge that the Safety Appliance

Act had been violated because the tender was unsafe due _

to ice resulting from n the negligence of. another servant,

" Statement of Case.

Petitioner climbed up the regular ladder at the rear of

the tender. There was no ice on the rear of thie tender and

he did not notice or observe any ice when he immediately

climbed on top. The ice was in front. of the manhole,

toward the engine, and it was not until he got around in

front of the manhole, which. is about 10 or 12 inehes high

and about 3 feec long (R. 27, 28), that tie noticed the ice

(R. 78). It covered’an area about six feet square (R. 79).

Sofne of respondent’ s witnesses charac terized it as a little

or very little ice (R. 102, 127).

The water spout is pulled over the manhole of the tende oe

by means of a long pole. with a hook attached thereto. It

was petitioner's duty to fill the fender with water. He

found the hook embedded in the ice, where-it had frozen,

and he had to kick it out and knock the -ice off. He then

_ braced himself with his feet astride, reached ov er for the

water spout and started to pull it into position, When the —

hook slipped on the water spout and his feet t slipped on the

ice, causing him ta lose his balance and fall to the ground

(R. 18, 78). : este ° e.% j

The ‘ice was not Bia rege on the tender, by natural

ceduses (R. 27-28, 32, 100). There had been either ral

nor snow (Td. a Itw was admitted on page 17 of! respondent’ s

brief in the Appellate Court that the water spattered: onto

the deck when employes filled the tank ( Appendix. p. 34)’.

| Under the rules and practice, while the tank should be

loaded full, the water should not be permitted to overflow

‘Appendix in.rear pages of this decument.

/ -

{

(R. 34-35, 101, 118, 125- 130). There i is a controlling device

to gauge the flow and to prevent any overflow (R. 35, 130-

131), and-water will not spill or slop over unless the

employe filling the tank is riegligent (R. 35, 101, 118, 125,

-130-131). fa 2

It is the: duty of the benotlar to fill the tenders with coal

and water before they leave the roundhouse (R. 29, 139).

This engine left Detroit about 7:00 or 7:15 the morning of

the day of the accident (R. 17). The petitioner had not

been on the tender since the day before (R. 27):

The time ‘of, the accident did not appear, but inasmuch

as it took about 40 or 50 minutes to go from the roundhouse

to Ferndale (R. 29), where they did some switching (R. 17), -

it is fair to state that the accident occurred about an hour»

after the crew left Detroit. No water was put in the. tank

after leaving the roundhouse (R. 29). It was freezing

weather (R. 27, 32). o

The fireman who. finished the job of Allie the leak with |

water after the accident said -it-was down about 18 or. 20

-tinches (R. 122). It appears that coal and coal dust will

sometimes clog up the water drains on a tender (R. 79).

Jurisdiction of the Court.

~The complaint alleged that the presence of ice consti-—

_ tuted a violation of the Safety Appliance Act {R. 5) and

the trial court submitted the question of safety appliance

violation generally to. the jury (R. 175. 176), which found

for petitioner.

The train involved carried interstate commerce (R. 14)

and both the trial and appellate courts found that the rights

and liabilities of the parties were to-be determined by the

Federal Statutes. The judgment of the Appellate Court of

—

6 Se

Illinois sought to be rev viewed was ente. ‘d November 28,

1941 (R. 202). - The Petition for ‘Leave to Appeal to the

_ Supreme Court of Illinois was denied by that court on

March 13, 1942 (R. 213), making the judgment of the Ap

pellate Court final. The action arises under the. Federal

Employers’ Liability Act and the Federal Safety Appliance

Act, and the jurisdiction of this Court is invoked under

Becton 237( bap of the Judie tal Code, as. amended by. the

Act of February 13th; 1925. Cases: believed to sustain |

jurisdiction are Chesapr ake & 0. R. Co. v. Mihas, 280 U.S: |

102, and Chicago G. W. R. Co. v. Rambo, 298 U.S, 99.

The Questions Presented.

-The trial court submitted the questions .of negligence,

contributory negligence, assumption of risk and safety ap-

pliance violation to the jury, reading the applicable stat-

utes’, and the’case was submitted in a charge that was fair

and impartial and which admittedly expressed correct prin-

ciples of law (R. 175 to 189). Sustaining the verdict for-

plaintiff, the trial court held that the answer to the special

interrogatory did not negative a violation of the Safety

Appliance Act. (R. 171) because of ‘the two specifie ani

independent grounds alleged:in the complaint (R. 5, 8-9).

The principal questions presented to the Appellate Court

- and the Supreme Court of [linois were:

1. whether the evidence was sufficient to prove a viola

tion of the Safety Appliance Act under charge “d" |}

in plaintiff's complaint, which question was wholly |

ignored by the Courts be igh 7

~The text of, the Federal fEempldyers’ Liability Act, the

Federal Safety Appliance Act, so far as here material, and

the pertinent rules of the Interstate C ommerce Commission

will be found set forth’ in eetenss in the appendix, pp. 31

to 33. ;

2. whether the answer to the special interrogatory was

' . conclusive against a finding that the Safety Appli-

ance ‘Act had been violated ;.

3. whether the evidence was sufficient to permit a find-

ing of general negligerice ; : :

4. whether the amendment to the Federal Employers’

Liability Act of August 11th, 1939, abolishing the

defense of assumed risk was retroactive, and,.if not,

5, whether the evidence justified or required a decision

’ as a matter of law that the petitioner assumed the

risk, .

All of these questions were decided by the. apperate

courts of Illineis adyersely to the petitioner.

Reasons Relied On for Allowance of Writ.

Tlie appellate courts of Illinois erroneously failed to

apply the Federal Safety Appliance Act, and have decided.

* Federal questions =f substance i in conflict with the decisions

of this Court and the Circuit Courts of Appeal, to-wit:

A. In adopting a strict, narrow, erroneous and technical

- eonstruction of the Safety Appliance Act, contrary

to the liberal and humanitarian policy announced by —

‘this Court in St. Louis 1. M. & 8. R. Co. v. Taylor,

210 U.S. 281; Lonisville & N. R. Co. v. Layton, 243

U.S. a ; Swinson v. Chicago, StoP.M. & 0. Ry. Co.,

294 U.S. 529; Brady v: Te ‘rminal R. Co.:303 U.S. 10.

B. In failing to take judicial notice of Rule.153(a) and

~ (¢) of the Interstate Commerce Commission, con-

trary to Unite ‘dd States v. B: a O. Ry. Co., 293 U.S.

454; Cahay. U. S., 152 U,S. 2115 Jenkins v. Collard,

145 U. S. 546; Knight v. United Land Ass’n., 142

U.S. 161; Thompson v. Missouri Pacific R. Co., 15 F.

(2d) 28. - ‘

In holding that the defense of assumed risk is a_

vested right and that, therefore, the amendment to

the Federal Employers’ Liability Act of August 11th,

1939, was not retroactive,*contrary to Arizona Cop-

per Co. v. Hammer, 250 U. S. 400; Carpenter v.

Wabash R. Co., 309 U.S. 23; Vandenbark v. Owens-

Illinois Glass Co., fg U.S. 538; South Carolina v.

Gaillard, 101 U. S. 483; U.S. vi Schooner Peggy,

1 Cranch 103.

In erroneously converting the partial defense of con-

tributory negligence into the complete defense of

assumption ef risk, contrary to the explicit ruling

of this Court in Schlemmer v. Buffalo P. & P.R. Co.,

205.U.S. 1; Seaboard | Airline ‘Ry. Co. v. Horton, : 233

U.S, 492.

x In disregarding ee the principle that

petitioner was entitled to have the evidence consid.

ered and. reasonable inferences. draw in support of

the verdict and judgment rendered,-contraty to Jacob

v. City of New York, 62S. Ct. 854; Gunning v.

Cooley, 281 U.S. 90; Elzig v. Gudwangen, 91 F. (2d)

434; Chicago M. St. P. d& P.R. Co. v. Linehan, 66 F.

(2) 273; ; Kulp v. Chicago, St. P.M. f O. Ry. Co., 88 F.

(2d) 466. =

In holding. as: a matter of law that petitioner -as

sumed the risk, contrary tothe uniform current of

authority in both State and Federal courts, commit.

ing such an issne to the jury where a servant slips

on ice, water, oil or other slippery substance, con-

— ss,

trary to Bell v. Terminal R, Co., {Mo.) 18S. W. (2d)

"40; Missouri Pacific R. Co. v.. Boyd, 106 S. W. (2d) —

165; York voC. Mud St. P: R. Co. (Wis.), 198 N. W.

377; Meledy v. Des Moines Union R. Co., (Ta.) 141

N. W. 438; Reams v. C. M. & St,P. R. Co. (Minn.), 231

N. W.236; Illinois Central R: Co. v. Skinner’s Admr.,

(Ky.) 197 S. W. 552; Missouri Pac. R: Co. x: Siratt, |

78 F. (2d) 253; Northern Pac, Ry. v. Berven, 73 F..

(2d) 687; C. N. Ov. € T. P. Ry. Co. v. Thompson, 236 |

F. 1. : | “

It is essential] that a Writ be granted inorder to deter-

mine an important question relating to the construction

and interpretation of the Safety Appliance Act and; spe-

cifically, whether the doctrine of the ease of Ford v. N.Y. €&

H.R. Co., 54 F. (2d) 342,. cert. den. 285 U. S. 549, is ap-

plicable to a ease coming under Rule 153(a) and (c) of the

Interstate Commerce Commission. It is the contention of

petitioner that where the Interstate Commerce Commission

has set up the standard, as in Rule 153(a), the doctrine of

the Ford case has no application. The Interstate Commerce

Commission set up no such mananes 6 or requirement as to

crab.irons and handholds.

PRAYER.

_ Wherefore, your petitioner prays that a. Writ of Cer-

. tlorari be issued out of and under the seal of_this Court, —..

directed to. the Appellate’Court of Illinois; First Distrjgt,

commanding said court ‘to certify and send to this hg

transcript of the’ record in the case entitled ‘‘Norvel HL

Lilly, appellee, r. Grand Trank Western Railway, Company,

_ a corporation, appellant, number 40882"', including also the

—~ proceedings in said Appellate Court, together with the

Illitiois Supreme Court’s denial of petitioner's request for

eee

ee to appeal, | to the end that hia een way 3 rev see

“and determined by this Court and the ee of the lower

courts be reversed.

$- :

Nouvat. H. LiLty,

By Samver Coney,

‘ 139 North Clark Street,

Chicago, Iilinots:

Counsel for Petitioner.

Wriiiam H. DePance,

Minneapolis, Minnesota,

Epwarp B. Hensuere,

Chicago, Llinois,

- Of Counsel.

Petitioner,

eee

‘BRIEF IN-‘SUPPORT OF PETITION FOR CERTIORARI.

STATEMENT OF CASE. é

The facts with referénce to the origin and history of the ~

case and also with reference to- ‘Jurisdi¢tion have been suf-

- ficiently covered in the petition, and in the interests. of

_ brevity will not’ be here repeated. The issues and the evi-

dence have likewise been discussed in the preceding petition —

so that the detailed pieture need not he repeated. It might

be well, however, to review-in a little nore detail the evi-

dence concerning the proper, customary and careful manner

‘of filling the tank af a tender-in order to avoid oyerflow.:

Petitioner testified that it was easy to keep the water

fron, slopping and he had riever seen employes let it do so-

(R. 35). Respondent's evidence was to. the -same effect:

Findley (R. 131) testified that he could regulate the flow se

as to’ get just enough water without overflowing if he

handled it right and he usually did; Granger (R. 101) that

the rule is that tanks are to be filled so the¥ do not over-’

flow; Holton, (R. 118) that: there is a regulator so that a-

fellow can gauge the stream just the way he wants it; and -

Smith (R. 125) that it is the rule not to let the water go

over the top and one could prevent it by handling it right.

In view of the jury’s finding that there was no crack or:

leak in the tender, it is certain that they also found under

the general verdict for petitioner that the water’ accumu-

lated and froze because of a Violation of the rule and ‘cus-

tomary practice referred to above. These two findings are

not at all inconsistent. Accepting the answer to the special

interrogatory as final under the decision of the Appellate

Court, there is, indeed, no other rational conclusion possible

under the ev idence.

"© Specification of Errors to Be Urged.

-The Supreme and Appellate Courts of Illinois erred:

In holding as a matter of law that there was no

violation of the Safety Appliance Act. .

In holding’that the defense of assumed risk was

available to respondent. '

In holding that the evidence’ was insufficient to war-

rant a finding that respondent was negligent.

In holding that it conclusively appeared as a matter

of law that petitioner assumed the risk. os

13°

The evidence shotved a violation of the: Federal | Safety

: Appliance Act.

‘The Aet (45 USCA 23) requirc. the tender ond all its ©

parts and appurtenances to be in p oper condition and safe

to operate in active service without unnecessary peril to

life or limb. The duty is absolute and mandatory and

‘makes the railroad company practically an insurer. As

said by Mr. Justice Hughes in Brady v. Terminal R. Assn.

of St. Louis, 303 U. 8.10:

‘The statutory liability is not based upon the car-

‘rier’s negligence. The duty imposed is an absolute one

and the carrier is not excused by any showing of care,

however assiduous. ”’

} See also to the same effect Southern R. Co. vy. Lunsford,

297 U.S. 398; Baltimore € O° R. Co. v. Groeger, 266 U. S.

521; United States v. Baltimore & O. R. Co., 293 U. 8. 454;

. Lehigh Valley R. Co. vy. Beltz, 10 F. (2d) 74, cert. den. 270

~ ULS. 641.

Under the authority conferred by this Federal Statute,

_ the Interstate Comnierce Commission n issued Rule 153 which

provides :. :

ne TENDERS

“**Rale 153. (a) Tanks shall be walatahial free from

leaks, and in safe and suitable condition for service.* * *

““(e) Top~of. tender behind fuel space shall be

kept clean, and means provided to carry off waste’

water. ee 2 99

ov;

FY a : . 14

“See Roberts’ Federal Liabilities of Carriers, Vol. 2; 2d

Ed., Appendix V, pages 2068 and 2069. te

This rule“was, in effect .at the time of the accident and’

under the decisions of this Court it was as controlling as

the Act itself, because,-as said by Justice Brandeis in

United States v. Baltimore & O. R. Co., 293 U.S. 454:

**When the rules hav “e not been complied with which

were issued by the’ Commission the engine is unsafe

within the meaning of the Boiler scactooamt Act.”’

The rule is well stated in Baltimore € O.R.Co. v. Gress ger,”

266 U.S. 521: |

‘The duty of the Commission is not merely to

inspect. It is also to prescribe the rules and regula-

tions by which fitness fot serv ice shall be determined.

Unless these rules and regulat’ops are complied with,

the engine is not ‘in proper condition’ for operation.

Thus the Commission sets the standard.”

. The-issue as to whether ice alone constituted a violation

of the Act was raised by the pleadings and submitted to

' the jury (R. 5, 175-176), and in sustaining the verdict under

the Act, despite the answer to the special interrogatory, ‘the

trial court stated:

‘*Now, whether there was a crack or not, yet still:

the question of the safety appliance could remain in

there if the court did: feel that it was the duty of the °

-@zfendant to keep the tender clear so that the man

might operate. I don’t know about that. It might be’’

(R. 171). .

Both the jury and the lower court upon ample. evidence

found that the ice was present and due to defendant's neg-.

ligence, and, therefore, all the facts aipon which decision. —

must depend are in the present record,

_ eaeeees a

This particular issue—the charge of violation of the

Safety Appliance Act—was presented to the Appellate —

- Court i in ‘petitioner’s brief and argument originally filed in

* the Appellate Court, by the following language :

* “Phaintiff made out a case of clear liability—a

violation of the Safe Locomotive Act, one of the Fed-

_eral Safety Appliance Acts. * * * Plaintiff, in his com-*

* plaint, makes two charges ofa ‘violation of this Act.. In

-, one charge ‘a’, ‘the allegation is: ‘* * * this tender’ -

was unsafe because the top.where plaintiff was required

to work was slippery and covered with ice. and other

slippery materials * *.* and the tender leaked there,

and while he was so at work, as above charged, le

.slipped on this slippery and unsafe condition * * *’"’. -

(Appendix p. 34.) 3 . ; .

Both the jury and the lower court upon ample ae

found that the ice was present and, therefore, all the facts

apon which decision must depend are in the present record.

’ The issue was precisely the same, as far as the evidence and

the facts are concerned, whether attention be directed to

- the issue of negligence generally or under this feature of

_the Safety Appliance Act. The fact that this controlling

rule of the Interstate Commerce Commission was not

urged upon the Appellate Court of Illinois until the petition

_ for rehearing is of no significance.

It. was therein fully discussed (R. 203 to 299) and was like-

- Wise called-to the attention of the Supreme Court of Illinois

in'the Petition for Leave to Appeal (R. 214 to 225). It was

. the daty of the courts to take judicial notice of this applica-

. ble and governing rule of law. The decisions of this Court

definitely establishing that duty. will be found in Roberts’

Federai Liabilities of Carriers, Vol. 2, See. 1020, in support

—efthe statement that the courts will take judicial notice of.

the rules and . orders of the Interstate Commerce Com-

16 .

mission pursuant to the authority delegated to it in the

Safety Appliance Acts. In addition to the cases cited by

Roberts, see Thompson v. Mo. Pac. R. Co., 15 F. (2d) 28,

- and also Goulette’s Admr, v. Grand Trunk R., 93 Vt. 266—

107 Atl. 188, where’it is held: © |

‘*In-actions under the Federal Employ ers’ Liability ~~

‘Act the Courts will take judicial. notice of the stand-’

ards established by orders ef the Interstate Commerce

Commission pursuant to. authority granted by the®

Safety Appliance Act.”’

The neglect of the -Appellate Court to apply or to take

judicial notice of this rule involves no change of theory. —

The situation is similar to that existing where both counsel

and the lower court merely overlook'a controlling authority.

There is no change to a different or inconsistent theory of

a cause of action or defense. It is merely hornbook law .

that if between two appeals in the lower Federal Courts,

this Court decides the question, its decision must be fol-

lowed; and we are only seeking here a decision in accord >

with the controlling principles of law heretofore announced

by this Court. This case has been tried and ‘presented

throughout on the theory that the Safety Appliance ‘Act

was violated in not merely the or e respect foreclosed by the

answer to the special interrogatory, but by the mere pres.

ence of the ice itself,

The mere statement of counsel in his closing argument

to the jury that a negative answer would put his client

out of court is a mere “expressiog of opinion. It binds

neither court nor client. It is absurd to suppose that a —

_ . lawyer could thus change the governing and applicable

rules of law. Tlie statement was made.in a context which

indicates that it could not and should not be accepted ‘with

the literal interpretation placed upon it by respondent. :

»-

: 17

Even had counsel failed to urge the liability of the rail-

road company under the Safety Appliance Act, yet if the |

proof shows a violation, it is the duty .of the court to take —

cognizance of it and to enforce the law as held in Thompson

v. Hocking Valley R. Co. (6 Cir.) 45 F. (2d) 155. The court.

there said that if the appliance was. really tinsafe and the

plaintiff was entitled to recover under the Act, ‘*the short-

comings of. counsel ought not to be given fatal effect.” .

It seems hardly necessary to add’ that the purpose of thé

original Act, as well as Rule 153, was to insure the removal

of any foreign or extraneous material that might endanger

the safety of employes. The words safe and proper are of

‘plain and simple meaning. - Rule 153. specifically provides

for the removal of waste water. The word ‘‘clean’’ obvi:

ously Nas connotations of safety ratlier than of. purity.

Where there is a violation of the Act, neither contributory

_ negligence (45 USCA 53) nor assumption of risk (45 USCA

54) constitutes a defense, either total or partial.

it was held in Ford v. New York, N. H. é H. R. Co. , 54 F.

(2d) 342, cert. den. 285 U.S. 549, that grease upon a hand-

hold did not constitute a violation of the Safety Appliance

Act.. In that ease the rule of the Interstate Commerce

- Commission prescribed only the size, dimensions and me-

chanical construction of the handhold, It did not require. :

that it should be kept clean or free from grease. . Here the

rule requires that the tender be kept clean and free‘from —

waste water. Therefore, the very element which was absent

in the Ford case is present here and a writ should be issued .

so that the law may be clarified and so‘that the Ford case

and other similar decisions should be properly distin-

guished and. limited.

: 18

II.

The aniondment abolishing assumption of risk —

was retroactive. .

‘Reference wes recently. made in the Miles case by Mr.

“Justice Jackson to the ‘‘medieval system’’ of compensating

railroad employes, and one of the relics of this feudal and

‘*backward’’ system was the ancient and barbarous doc-.

trine -of assumption, of risk, now happily abolished in all

_cases. Presumably, when Congress acted to eliminate this

-. defense, it did * so’. with the purpose of promoting justice

_ in all cases to’ ‘which its power would extend. The cruelty

of the defense had been the subject of much comment by

judges, sociologists | and law writers generally. The -action

of Congress Was remedial; the legislation cannot be other-

wise classified; and no good reason. appears why the benefit

of a wise and humane amendment should be nnnecessarily

restricted, but on the contrary, it should receive a liberal

meteor to effectuate its object and purpose.

The amendment. passed by Congress on August 4th, 1939,

und approved by the President August 11th, 1939, amended

Section 4 of the Federal Employers’ Liability Act, so that

it now reads as follows: : - :

“Section 4. That i in any action br ame agains( any

commpn carrier under or by virtue of any of the” pro-

visions of this ‘Act to recover damages for injitries

to, or the death of, any of its employes, such employe

-shall not be held to have assumed the risks of his

employment in any case where such injury or death

resulted in whole or ih part from the neglige nce of

- any of the. office rs, agents or employes of such carrier:

and no employe,shall be held to have assumed the risks

of his employment in any case where the violation by

7 . j ? : ° tp a /

—

such common carrier of any statute enacted for the

. ‘safety of sea es contributed to the injury or death

of such employe.’’ . (The amended part is in italies.)

‘° This amendment became effective while this case was

pending of appeal in the Appellate Court (R. 13). The.

section refers not to accidents or causes of. action, but to

actions ‘‘brought’’ against common carriers. The language

is, ‘*That in any action brought * * *.’’ Brought is in the

past tense, and Congress did not limit the section to

‘actions ‘*to be brought’’, or ‘‘to be commenced’’, nor to

_ “actions arising hereafter”, ete. ;

That retrospective operation was . intended by Congress

' is evidenced by the fact that‘ Section 3 of the Federal

Employers’ Liability Act relating to contributory negli:

gence provides, ‘‘In all actions hereafter brought * * *°”.

In Hine v. Be Iden, 29 Conn. 384, it was held that the use

of ‘‘brought’’, ‘implies past time, and includes prosecutions

pending, as well as those thereafter to be brought.”’

The statute is a remedial one, and under familiar prin-

ciples of liberal construction should be given retrospective

operation. Lewis Sutherland, ‘Statutory -Construction,

Volume 2, page 1209, where it is said; referring to such

statutes, ‘*‘They will be freely construed to have a retro-

spective operation whenever such seems to have -been the

intention of the legislature’. See, also, Cooley, Principles

of. Constitutional anit 3d Ed., pages 360- 361, w here the

author states: :

‘The citizen has no vested right*to-any particular

remedy, and the state may therefore take away at

discretion those it provides and substitute others which

shall apply to wrongs already committed as. well as

those which may be thereafter committed.’’

This Court: said | in Aviauis Copper Co. v. Hammer, 250

CU. S. 400:

.**No person has a vested right, entitling him to —

have unchanged the existing rules of law concerning

an employer’s a for personal injury or

‘death of an employe.”’ a. '

United States v. Schooner Pe -agy, 1 Cranch 103.

South Carolina v. Gaillard, 101 ULS. 483.. |

Ewell vy. Daggs, 108 U.S. 143.

Railroad v. Grant, 98 U. S. 398. .

Campbell v. Holt, 115 U. S. 620.

Arizona Copper Co. v. Hammer, 250 U.S. 400. .

Carpenter v. Wabash R.Co., 309 U.S. 23.

Vandenbark vy. Owens- Illinois Glass Co., 311 U.S

538. ?

“In the opinion of Justice Reed in the Vandenbark case,

supra, the languageof Chief Justice Marshall was quoted

with approvi al that: |

- “Tt is in the general true that the province of an

appellate court is only to enquire w hether a judgment

when rendered was erroneous or aot. But if, subse

quent to the judgment, and before the decision of the

' appellate court, a law intervenes and posititely changes

the rule which governs, the law must be obeved, or its”

obligation denied.’’

The State authorities holding that remedial legislation

of this kind should be given a retrospective operation are

too numerous to cite in this brief.

It appears, therefore, that the opinion below is erroneous

in stating that the defense of assumed -risk if a vested

right (R. 202) and-was rendered by the court under a mis

apprehension as to the true rule established by the deci ‘ision~

of this C ourt.

III.

‘The evidence was ample to warrant a finding that

_ respondent wy negligent.

The courts below held that there was no-ev idence of

negligence because, first, the origin of the water and ice

did not appear, .and, secondly, _respondent had no notice

of its existence. >

In truth and in fact, it was established to the point of

demonstration that the water and ice accumulated heeause

the employe who previously filled the tank had negligently

permitted an’ overflow (R. 27-28, 34-35, 100-101, 118, .125,.

130-131). It is absurd to’ suppose that some trespasser, —

unobserved by the crew, stole his way to the top of the

tender and thence to the area between the manhole cover

and the fuel space and spread a pail’ of water over a six

foot area at/some unknown fine between the departure

from the roundhouse at Detrcit and the arrival in the

“«vards or during the-switching operations in the yards at

Ferndale. Nor is such specviation to find a defense per-

missible, : sf

As said in Kulp v. Chicago, St. P., M. & O. Ry. Co., 88 F.

(2d) 466, cert. den. 201 U.S. 700: ;

‘*In the absence of direct testimony, the simple sug-

gestion of theories by the defense does not reduce the

jury to mere speculation, and disqualify it from de-

termining the cause of the injury complained of.’’

More precisely in point is Termial R. Ass’n. of St. Louis

v. Farris, 69 F. (2d) 779, 785:

“The fact that hypotheses. isiccipedible with the

liability of the appellant may be-conjectured or imag-

bei when "4 are not based on any testimony in n the

case, ‘affords no reason to reverse a — and judg-

ment which is supported by the testimony.’

While the Appellate Court indicated in its opinion that

the’ source or the origin of ‘the ice was unknown, it was no -

mystery to the respondent when it prepared its brief. in such

Court, beqause on page 17 it was there stated:

there was any ice on the deck of the tender it

resultéd from- water unavoidably spattering onto th®

~ deck 0 the tender from the force of the water as the - }

water is put in the tender by the crew. (Appendix

p. 34.)."

The notion that respondent did not have notice of the

presence of the ice is equally a perversion of legal prin- *

ciples. As said in Sears, Roebuck & Co. v. Peterson, 76 F.

(2d) 243, it is universally held that where the condition of

- the premises is ‘‘due to the direct act of the defendant,or

of persons whose acts: are constructively his own, no

notice need be shown, but is necessarily implied’’. In the

opinion a number of authorities are cited. We refer only to

Grzboski v. Bernheimer-Leader Stores, 156 Md. 146, 143

At. 706, where a customer slipped on an orange peel in the

aisle, and it was said: .

» ~ It would still be possible, and consistent with such

: finding, that the orange peel might have been dropped

on the pile by a customer subsequently, without the

knowledge of, the. employe who swept it up, but if

seems to this*court that the probability would be tha‘

‘any such thing on or in a small gathering of rubbish at

that one spot would itself have been gathered or swept

there, a_probability so strong that practical men would

regularly take it as establishing the fact. And such a

probability would be proper basis for a finding of fact.”’

The Circuit Court of Appeals in the Peterson case, supra,

_ said that under such circumstances, ‘‘neither should the -

court indulge i in mere speculation as toa possible defense °

unsupported by any proven facts.’’ *

It is only where the facts are such that all iene men.

_ must draw the same conclusion that fhe question of negli--

génce becomes one of law for the court, and where fair

minded men would honestly draw different conclusions, the

"question ‘is one of fact to be settled by the jury. Gunning v.

Coole, 281 U.S. 90. As said in Railroad Co. v. Stout, 17.

Wallace 657, 663, ‘It is this class of cases and aes akin

to it that the law commits to the decision of a jury.’

IV..

"Contributory negligence and assumption.of risk were

properly submitted to the jury.

The petitioner, although aware of the ice, braced himself

with his feet astride (R. 18, 78). While there is always

danger of slipping on ice, yet it is not absolutely certain

that one will do so; it can be avoided. b¥ the exercise of that

degree of care commensurate with the risk. The failure to —

exercise such care is contributory negligence and nat. as-

sumption of risk.

Here it was not solely the fact that petitioner slipped

upon the ice that caused the accident; there was also the

element that the pole and hook slipped on the water spout ;

both were causative factors (M..18, 78). There is no evi-

dence that the hook was certain to slip or even likely ‘to

slip. There was no evidence that petitioner knew that the

hook would slip. There was no evift@nce that he did not

justifiably believe that the hook would remain upon the

water spout and that. with. his feet properly’ braced he

could succeed safely in filling the tender with water.

i peer

Assumption of risk is not a favored doctrine but is arti-

ficial and harsh; it is an‘affirmative defense and the burden

to establish it is upon the master. :

Kanawaha & M. R. Co. v. Kerse, 239 U.S. 576.

oe R. Co. v. Archibald, 170 U. S. 665.

RL & P. Ry. Co. v. Ward, 252 U.S. 18.

regal € O. R. Co. v. Proffit, 241 U. S.462.. -

Schlemmer v. Buffalo P. & P. R. Co., 205 U.S. 1.

There are two kinds of risks: 1, Ordiriary risks, and, 2,

extraordinary risks arising from negligence. Those in the

latter classification are usually not assumed, and the courfs .

are reluctant to sustain this defense when risks in the sec. _

ond category, due to negligence, are involved. Of particular

inferest here is the Schlemmer case, sipra, where Justice

Holmes indicated that the distinétion between contributory

negligence and assumption of risk should be carefully ob-

served. He called attention to the fact that men who work

with their hands do not-have the freedom and equality of

position assumed by laissez fasre, that the doctrine of con-

tract was rather shadowy as applied to this defense, and

that distinguishing it from contributory negligence —

“the degree of their proximity to the-particular harm.

The preliminary conduct of getting into the dangerous -

_ employment or relation is said to be accompanied by

assumption of the risk. The act more immediately —

leading to a specific accident is called negligent. But

the difference between the two is one of degree rather

than of kind;,and when a statute exonerates a servant

from the former, if. at the same time it leaves the —

defense of contributory negligenee still open to the -

master (a matter upon which we express no opinion) ,

then, unless great care be taken, the servant's rights

will be sacrificed by simply charging him with virtua

tion of the risk under another name."’

‘Under the Federal Employers’ Liability Act prior to the

1939 amendment contributory negligence merely diminished

damages but assumption of risk was a complete defense. .

Section 3 (45 USCA 53) provides t that, ‘*¢ ‘ontributory neg-

ligence: shall nat bar a recovery: but the damage# shall be

diminished by the jury in proportion to. the amount of.

negligence attributable to such employe.”’

- In Cross v. C. B. € Q..R.Co., 191 Mo. ane 202, 186 S. Ww.

1130, following the Horton and’the Schlemmer cases, the

Missouri court said great care should be exercised ‘‘lest

‘the plaintiff’s rights be sacrificed entirely by calling: his

act assumption of risk, when, strictly speaking; it is only -

contributory negligence, which does not defeat his cause

of action entirely but merely reduces his damages.”’

It is impossible to reconcile the decision below with that

of this Court in Keys v. Pennsylvania R. Co., 308 U. S. 529, -

reversing the case of Keys v. Pennsylvania R. Co., 104 F.-

(2d) 663, and holding that assumption of risk was for the |

jury. We earnestly request the members of this Court to .

‘read the opinion which was set aside and disapproved by —

the reversal in the Keys case. It would be a strange system

of jurisprudence which would award a jury trial in that

case and deny one here.

It is one thing to hold that where hone? is no negligence

at all and ‘where the ice was formed from natural causes,

as in Mo. Pac. R. Co. v. Acby, 275 U. S. 426, and Hatton v.

New Fork, N. H. d& H. R. Co., 261 F. 667, there can be no

recovery. In the ,Aéby case this Court, said that anent

negligence, ‘‘we need not consider its contentions ii re’

spect of assumption of risk * ** ’’. Holding as here that.

petitioner assumed the risk f rom ice negligently created by

affirmative conduct i is something else.

The other cases cited in the opinion below, namely, the:

‘Horton, Jacobs and Boldt cases, all concerned the propriety

i__a

of requested instructions, and in none of them was it held

that assumption of risk appeared+as a matter ‘of law. In

two of them the verdict of the jury was actually sustained

_. and in-the other case a reversal resulted from erroneous

instructions. None is authority here.

The cases relied on by respondent and cited by the court

fall in one of three classes : ,

1. Where no negligence was shown.

2. Where the condition was of a permanent nature and

resulted from natural causes.

ee Where the danger of injury was certain and im-

mediate and practically unavoidable. .

The lower court gratuitously assumed that petitioner

could have made the tender safe with sand or ashes: Ap-

parently it did not know that all of the sanders operate

simultaneously, tliat while sand is flowing from one sander

_ onto a shovel, it would be flowing from the others on the

rails, and that this sand is specially prepared and specially

dried and is of a character so that engineers are reluctant

to permit its use for other purposes. -Apparently the court

Gia not know that whether ashes are available depends

upon the condition 6f the fire, and that it is a difficult task

to Sbtain ashes with the fireman's shovel. In fact it is a

dangerous proceeding to carry ashes mixed with hot coals’

to the top of the tender by either climbing up the ladder

or climbing over thie coal and it is an operation that requires ,

_. the cooperation of two or more crew members.

We shall make no attempt to overwhelm this Court with

the citation of the very.plethora of State and Federal

authorities holding that this issue in the case at bar wa-

properly for the jury. As. illustrative we select at randoui:

Bell v. Terminal R. Co. (Mo.) 18S. W. ¢2d) 40, where a

fireman slipped on the icy steps of his engine. He and his

engineer had been using them for hours and in answer to

the contention that.a verdict should have been directed, it

was said, ‘‘We don’t think so, for the evidence tends to

* show that immediate injury was not threatened by using

the icy steps.’’ | =

The respondent does not claim that petitioner should

have selected any such course. It is obvious that the —

members of the Appellate Court themselves were utterly

unfamiliar with either procedure, and had any of them ever

attempted to obtain ashes from the firebox ‘of a locomotive,

the juridical result below might have been different.. At

any rate, the failure of petitioner to select the safer of

_ two courses would be contributory negligence and not as-—

sumption of risk. This is thoroughly established.

State Cases.

Virginia-Portland Cement Co. v. Swisher’s Admr.,

94 S. E. 159.

St. Louis 1. N. & S. R. Co. v, Yates, 165 8. W. 282,

286. : . :

Houlihan v. Conn. River Company, 42 N. E. 108.

Sinclair Oil & Gas Co. v. Langley, 293 S. W. 1015.

Headrick v. HD; Williams Cooperage Co., 134

_ S. W. 957. :

. FEDERAL Cases.

Thomson v. Boles, 123 F. (2d) 487.

Terminal R. Ass’n. of St. Louis v.- Farris, 69 F.

(2d) 779.

Norfolk d W.R. Co. v. Riggs, 98 F. (2d) 612.

| Rocco v. Lehigh J “alley R. Co., 228 U.S. 275.

28 i. @

In Thomson v. Beles, supra, the authorities are cited and

it is said:

‘*Moreover, the departure, if any, from the usual

ahd customary practice would.not be a complete de-

fense, but would merely constitute contributory neg-

ligence.’’ :

The applicable rule is well- stated in White on Personal :

Injuries on Railroads, Vol. 1, page 377, that knowledge

of the defect and failure to complain will not always work

- an assumption ‘of risk ‘‘for the employe may have had

reasonable ground to believe by the exercise of due care

_ on his part that he — use the defective appliance without.

a resulting injury.’

The following facts i in the case at bar fully justified the -

trial court in submitting the case to the jury:

1. The condition was not necessarily dangerous nor cer-

tain to result in injury.

2. Petitioner's knowledge was ‘so ¢losely connected in

* point of time and action that there was ho appreciable

interval. |

3. Petitioner had no opportunity to object to-the master.

4. There was no evidence that petitioner freely and vol- -

- untarily consented to the condition.

- >. The petitioner was under a duty not to delay the train

_ and hence not to abandon that one, single task.

6. The unexpected release of the hook from the water

spout acted in conjunction with the ice under his feet

to cause the accident. a

" CONCLUSION. —

In seeking merely a. hearing on the merits in this case,

petitioner believes that the language of Mr. Justice Murphy —

. in Jacob v. City of New York, 62 S. Ct. 854, which is the

Jatest decision of this tribunal dealing with assumption of

risk, cannot be too strongly emphasized, as follows :

‘The right of Sury trial_in civil cases at common

law is a basic and fundamental feature of our system,

‘of federal jurisprudenca which is protected by the Sev-

enth Amendment. A right so fundamental and sacred

to the citizen, whether guaranteed by the Constitution

or provided by satehe,, should be jealously guarded by

the courts.’’

Respeetf ully ‘submitted, -

SaMvEL CouHEN, |

139. North Clark Street,

Chicago, Illinois,

Counsel for Petitioner.

Wiis H’ DeParce, |

Minneapolis, Minnesota,

Epwarp B. Henstez, si

Chicago, Illinois,

. Of Counsel.

APPENDIX __-

APPENDIX...

0 FreperaL if MPLOYBRS’ LiaBILity: Act.

Act of April 22, 1908, e. 149, Sections 1, 3. 35 Stat. 65-66

(45 0 SCA para. 51, 53).

1. Every comnon carrier by railroad while engaging

in commerce between any of the several states * * * shall

be liable in damages to any person suffering injury while

he i is employed by such carrier‘in such commerce, or, in case

of the death of such employee, to his or her personal rep-

resentative, for the benefit of the surviving widow

band and children ‘of such employee * * * for sueh in)

death resulting in whole or in part from the negligence of

any of the officers; agents, or employees of such carrier, or

by reason of any defect on insufficiency, due to its negli-

gence, in its cars, engines, appliances, machinery, track,

roadbed, works, boats, wharves, or other equipment.

? . . .

3. In all actions hereafter sina against any. such

mmon carrjer by railroad under or hy virtue of any of

the provisions’ ‘of this chapter to recover damages for per-

sonal injuries fo ain employe e, or where such injuries have

resulted ‘in his death, the fact that the employee may lrave

been guilty of contributory negligence shall not bar a re-

covery, but the damages shall be ditiimished by the jury in

proportion to the amount of negligence attributable to such

employee: Provided, That no such employee who may be -

injured or killed shali be held to have heen guilty of con-

tributory negligence -in any case where the violation by

such common carrier of any statute enacted for the safety

of employees contributed to: the injury or death of such

" employee. —e . ;

FeperaL Sarety Appuiance Act,

_ USUALLY KNoWN as BorLer Inspection Act.

(45 USCA, Section 2 a3; June 7, 1924, e. 393, No. 2, .

43 Stat. 659.) °

Use of unsafe locomotives and appurtenances unlaw-

fyl;. inspection and tests. It shall be unlawful for any

carrier to use or permit tobe used on its line any locomo-

tive unless said locomotive, its boiler, tender, and all parts

and appurtenances thereof are in proper condition and

safe to operate in ‘the service to which the same are put,

that the same may be employed in the active service of

such carrier without unnecessary peril to life or limb, and

* unless said locomotive, its boiler, tender, and all parts

and appurtenances thereof have been inspected from: time

to time in accordance with the ‘provisions of sections. 2s,

29, 30 and 32 and are able to withstand such test or tests

as may be prescribed i in thy rules and regulations therein

aiter provided for, _.. ee

Ru ces oF THE INTERSTATE COMMERCE COMMISSION,

- .

Tender...

' 152. Tender frames. (a). Tender frames shall be anain

” 2 . y ° » * e \ .

tained in-a safe and suitable condition tor service.

(b) The difference in-cheight “between the deck on the

tender and the cab floor or dec® on the locomotive shall not

exceed 114 inches. §

a are al,

(e) The minimar: width of the gangway between loco

motive and tender, while standing on straight track, sha!!

be 16 inches. |” -

33 :

153. Feed water tanks. (a) Tanks shall be maintained

free from leaks, and in safe and suitable condition for sery-

ice. Suitable seteens must be provided for tank wells or

tank hose.

(b) Not less frequently than once each month the in-

terior of the tank shall be inspected, and cleaned if nee-

, .

essary,

and means provided to carry off waste water. ‘Suitable

, ;

covers shall be provided for filling holes.

(See official pamphlet of Interstate Commerce Com-

mission, Bureau of Locomotive ' Inspection, orders

dated October 11,-°1915, to February 21, 1929, inelu-

sive, ) , y

(See also Roberts: Fed. Liab, of Car., Vol. II, Ap-

pendix V, Pgs. 2068 and 2069.). ~ mie

Section 4.48 AMenvep Avaust 11, 1939.:

(45 USCA 54, 1941 Cumulative Annual Pocket Part.)

In any action brought against any common carrier under’

or by virtue of any of the provisions of this chapter to

recover damages-for injuries te, or the death of, any of its

tmployees, such entployee shall not be held to. have as-

sumed the risks of his employment in any ease where

such injury or death resulted in whole or in part from

the negligence of any of the officers, agents, or employees

of such carrier; and no employee shall be held to have

assumed the risks of his employment in any case where

the violation by such common carrier of any statute

aetiacted for the safety of employees contributed to the

injury or death of sueh employee.

Exar A. °

(APPELLANT'S APPELLATE CourT BriEF.) -

Respondent said in its Appellate Court brief (Exhibit >

A, p. 17): . :

“If there was any ice on the deck of the tender it

resulted from water unavoidably spattering onto the

deck of the tender from the force of the water as’ the

waterjis put in the tender by the crew.”’

* Exuisir B.

(APPELLEE’s APPELLATE CourT Brier.)

On Page 9 of the argument Pefitioner said:

‘*Piaintiff made out a case of clear liability—a vio-

» ,% e a . :

lation of the Safe Locomotive Act, one of the Federal!

Safety Appliance Acts. * * *

‘Plaintiff, in his complaint, makes two charges

of a violation of this act. In one charge ‘d,’ the alle-

gation is: .

. Where plaintiff was required to work was slippery

' and covered with tce and other slippery materials

* * * and the tender leaked there, and while he Was

e*# @ 3 ts

- slippery and unsafe condition

etree

pCR

1 Ln ne EOE Ray Reig

so at work, as above charged, he slipped on this) ~

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.