Brief for the Respondent — Lilly v. Grand Trunk Western R. Co.

Supreme Court brief1943

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States.

Ocroser Term, 1942.

“No. 124

-NORVEL H- LILLY,

} Petitioner,

vs,

; GRAND TRUNK ‘WESTERN BALSOAD COMPANY,

A CORPORATION,

: Respondent.

BRIEF ‘OF RESPONDENT.

AH. Victor SPIKE,

Srras H. Strawn,

\ Haronp A. Smita,

Attorneys for Respondent.

THE GUNTHORP. WAREER FR HT WOO » 210 weer. ce» caso

we a

; she , Seas eee

Statentent of the case.......... : DE A an Soca ae

Argument. EAE Soe YeCh es aren Mee Net inde ack ae

Specification of errors argued..... irk ole Ueee es Para,

; Summary of Argument............ eee eben ees Waters ee

I—T het facts of the case do not warrant leaving the

defense’ of asstimed risk:to. the jury pace catia hia 10

2—There is no ey idence that the respondent had

notice of the presence of the iee.e..... 00.0... se ot

} 3-—The amendment of, Aueust’ .-. 1939 hain

ty NEE Sa eg cn 85s av cece eee RAS con ee

4—There is no evidence in the ‘record to ‘support

the charge of negligence..... aaa SEE PR RE 7,

o—Petitioner cannot ground his case, here on Rule

153 of the Interstate Commerce Commission... 20 _

6—The petitioner's testimony found to be false by

the jury justifies an affirrhance of the Appel

a ET. SNE ne hey Fates Oo ne eee wn 2s

TABLE oF Cases.

Baughiijn ve N.Y. P.& N. R. Co. 241 U. S.-237

Boldt v. Pa. R. RB. Co., 245 Us 8,:441........... 0.005. i

re &O. R.R. Co. ve De. \tley, 241 ce 2 ae cine

C.& 0. RoR. Co. ve. Nixon, 271 U.s . 218... - eee

("& , R. RR. Co, v. Mihas, 280 U: S- sh 108. RA pis ‘ Pa

Chew Heong v. United States, 112 U.S. 536, 559.....8 IS

Chicago Great Western v. Rambo, 298 rays ceous , 8, 20

oR.L & P. Ry. Co.'s . Benson, 352 HI. 195, 200 (B85

ants ie Bree eat yl) Ak Re Rae tse 9,26,

Davis ve HL pian eens ces

-. Ford ¥. N.Y. N. HW. & TLR. (Co., 54 F. 2d) 842, Ad |

[pe ee OSS ave ctaees CMs Ribas cee aes 0, 24

‘Great Northern v. Leonid: as, 3009 U.S. 13. DE ee Bago 7,10

Great Northern Ry. Co; ve Johnson, 207 FL 521, 724

OA. Oh NS io pen eee EAE

Gascoigne v, Met. El. Ry. 239 THE 18).¢.... 0.6. vas 8, 24

Hatton Vv. N, Y., N N i. & H. R.Co., 261 F. 667, 669

Be 1919) ieee aie gers ace a ala he WE So wegen fa Woe bw yy ¥-

Harlan v. Wabash Ry. Co., 73 &. W. (2d).749, 752, 753

(Supreme Ct. of Mo., 1934).....:....... amen 3, 20

Tllinois ¢ ‘entral HE. Co. V. Bean, 208 FL 987, 939.00. CLA. é

Sth) - corneas Une SP eee eeeeey 622.4

Jacobs v. Sonia n Ry. Co. 24 0. S. 299.2... ee eee 7.10

“Keys v. Pennsyly§ tia. RR. Co, 808 U.S. 629. pr A

Lesser Cotton Co. XN St. Lonis, 1M. & S. Ry. Co:, 114.

Pe Vs Ss ir Oa ican ears Seo ary eae stay oe

Missouri Puy. ¥. Achy, 275 US. 426, 480500... ete eK

Murray s Ginson, 36 U.S. 421, 428 (15 How: on ei Maes S. 1

MeEwen v. Den, 65 U.S. 349. 244 (94 Howard): ...,. 8, 16

M. kK, & TORy. Co. v. Wilhoit, 160 F440, 445700. CL A,

ey a ein ae VFO ert eos bao ee ee eLen 8, 20

Hl. Revs Stat. 1941, Chap. 110, See, 189.

iii

Reeves v. Chicago, St. P. M..& O. Ry. (‘o., 179 N. W:

ee Se ON OD ns a ak bust bade Cae eo 9, 20

Riley v. Wabash Ry. Co., 44.8. W. (2d) 136, 141...... 9, 27

_Sealtoard Air Line ve Horton, 283 U.S. 492. .,... .7, 10, TI

Southern Ry. Co. v. Crockett, 234 U.S. 729.......... | 4,10

Schilling v. D. & H. R. Corporation, 114 F. (2d) 69

Ee ae ie Ns RUD esta ies eens hes Migkiaens.+0gty ae!

Sol _ Waterson, 84.U.S. 596, 598 (17 Wallace)..... : 8.17°

San Juan Light Co. v, Requena, 224 ©. 8. 89, 96, 97. ....8, 21

Siiyder v., Snyder, 142 HI. 60, 67. .0........ ea.

"Slater v. Chieago, St. P. & M.O, Ry. Co., 178 N.W.STS,

CS) Pn ea eae ere 9, 25

Soo Line v. Rock, 279.U. 8. 410.......... 6.4 fe0c0e es 9

T. St. Js. & W. RE Co. v, Allen, 276-U, 8.165.000.0005. 7,10

United States v. St. Louis, ete. BL Co. 270 U.S. 1, as 8, 14

Wichita Falls R. Co’ v. Lindley, 145 S.-W. (2d) 428...8, 15

Winfree v. Northern Pacifie RoCo., 227 U.S. 296..... a eee

TEXTS anp Sratvres Crrep.

Roberts Federal: Liability of Carriers, Vol. I, 2nd Ed.,

Sec. S20, yp. SE hse ee el oaks ba has os ccewuleeen ee

Pomeroy Equity Jur., oth Ed., Vol, IT, See. 404.000... 9

Orricm&. Revorr of THE Cask BELow.

tilly v. Grand Trunk Western Railroad, 312.111. App. 73,

37 N. EB. (2d). 8&8,

* STATEMENT OF JURISDICTIONAL Grounbs.

Liability is predicated upon the Federal Employers Lia-

bility Aet and the so-called Safety Appliance Acts of

Congress. -

: -EN THE ©

Supreme Court of the United States

Octoser Term, A:.D. 1942.

» No. 124,

NORVEL H. LILLY,

Petitioner,

| vs. :

GRAND TRUNK WESTERN RAILROAD COMPANY;

. _A.CORPORATION, |

cae eed } Respondent.

_ BRIEF OF RESPONDENT. |

STATEMENT OF THE CASE. *

ot sre

The accident occurred on the 6th day of February, 1937.

The ‘trun’? of the local freight train upon which the peti-

tioner was working extended from Durand, Michéan sixty.

mils into Milwaukee Junction, which is on the outskirts

of Detroit. - The engine and crew, including petitioner, left

Durand the day’ before, took their train into Milwaukee

“Junetion, laid over night and were making the return trip

to Durand, with the same engine at the time of the acci-

dent at Ferndale, seven miles out (R. 24).

Orie of petitioner’s duties as brakeman was to take on

water. The engine had stopped at. the waterspout at Fern-

dale for that purpose. The engineer and fireman were in.

the cab. Petitioner got upon the tender and found that

there was ice on the deck of-it. While pulling the water-

spout around the hook slipped from the waterspout.and

petitioner slipped on the ice, lost his balance and fell over

the side of the tender to the ground from which he sus-

tained his injuries (R. 13).

‘ Petitioner testified ‘tin front of the manhole hin the-—

that is the hole that the spout ix put down into to take the

_ Water, right at the seam on top of the tender where the two,

join together, there was water coming out of there, at the’

front of- this manhole, right at-the seam.’’ He. testified.

.that it was a small stream and that it spread over the

tender. That was the day before the accident (R. 20; 49).

Though the engineer is suppgsed to report in writing at

the end of the run any defects reported to him (R. 49, 68)

yet petitioner told nd one about this condition (R. 53, 68).

Petitioner's testimony about. thie leak is: all the direct

testimony there is in the record as to how the ice got there.

_ Since that source “was eliminated by the special verdict

speculation alone was left as to whether it came there from

the negiigence of other émplovees, the weather, or acts of

third parties. The engine had been out of the roundhouse.

“on this runabout 40 or S0aninutes when the accideat hap-.

“pened (R. 21). The engine was filled at the roundhouse

the night before and put in the roundhouse until needed

(R. 89). The temperature outside the morning of the acei-

denLwas 20 or 30 degrees above zero (R.,23). The round-

house was warmer than the outside (R. 23).

In the complaint were five paragraphs charging negii-

“gence. Paragraph 4(a) charged that tle respondent negli-

gently supplied a defective hook with which the waterspout

was pulled over the tender and 4(b) charged that the re-

spondent negligently supplied a waterspout. whieh was

defective. Paragraphs 4(a) and (b)-were voluntarily dis-

missed hy the petitioner at the close of his ease (R. 59).

Inasmuch ‘as the allegations of the three remaining para-

graphs of the complaint are involved on this appeal we e set

“them forth verbatim: : oe

‘“4(c). The defendant did earelessly, negligently,

wrongfully and unlawfully furnish the plaintiff with a

place to work and require the plaintiff to work at a

‘place, in the performance of his duties as employee,

which place was unsafe and dangerous to’ human

-- safety in that the defendant required-the plaintiff, in

the performance of his duties, to stand and be upon the

engine tank described heretofore for the purpose of

moving the waterspout over the engine tank to. supply

water to this engine tank, yet the defendant carelessly,

negligently and w rongtully allowed, caused and per-

mitted ice to be, remain and accumulate on this engine’

tank at the place where it required.plaintiff to so work

-in the performance of his duties, with great danger to

plainQff; and of these facts the defendant had due

notice, and by and through such careless, negligent and

wrongful conduct on the part of the defendant, plain-

tiff, while he was in the performance of his duties as

employee of this defendant, attempting to move the

waterspout in position over the tank, was by reason

of the ice gn the tank caused fo slip and fall ‘and lose

* his balance, and was caused to be thrown, drop off the

engine tank to the ground, and sustain serious in:

juries.’’ (R. 3.) |

~ *(d) Defendant did-then and there unlawfully and

contrary to the Federal Safety Appliance Act use and

permit to be used on its line of railway at Ferndale

Yard a Jocomotive and tender which was in improper

‘condition.and unsafe to operate in the service, and its:

condition constituted unnécessary -peril ‘to life and -

limb in that the defendant required, caused and per-;

mitted plaintiff to work on the tender of thé locomo-

tive of his train on the oce: ision above charged, in the

act of putting water in the tender of the-Jocomotive,

this tender was unsafe because the top where the

plaintiff was required to work was slippery and:cow,

cred with ice and other slippery materials to endanger

his-life and limb, and the tender leaked there, and

while lf was so at, work, as above charged, he slipped.

on ‘this slippery and unsafe condition on top of the

tender and was thrown and caused to fall and be seri-

otsly einjured.’’ (R. 4.)

‘*(e) Defendant did then and there unlaw fully and.

contrary to the Federal Safety Appliance Act use and -

permit to be used on its line -of railway at Ferndale

Yard, Michigan, a locomotive and tender which was

in ‘improper condition and ‘unsafe to operate in the

service, and its condition constituted unnecessary peril

to life and limb, in that the defendant did operate this

locomotive and tender with the tender of. this locomo-

tive at the part where the water is supplied to and

poured inte the locomotive to’ be cracked, worn and:

split, so as to occasion and permit the leaking of water

from and through this erack, tole and aperture and -

to flood, seep and cover the top of the tender where

plaintiff was required to be in the performance of his

duties as employee, rendering it likely and liable for

‘the Water to freeze and cause a dangerous condition,

and. thereby, by reason of this violation on the part of.

_ the defendant of this Federal Safety -Appliance Act,

the water-in this tender did leak through this defective

place onto the top of the tender.and did freeze, and it

thereby caused plaintiff, while he was so at work, as

aboye charged, on the top of this tender, to slip and

be thrown and seriously injured.’’ (R. 6.) -

At no place in the complaint or in the testimony was it

charged that there was a violation of the rules of the Inter

state Commerce C ommission. These rules were first

alluded to when the petitioner filed his petition for rehear-

ing in the Appellate Court of Hlinois (R. 144).

‘In te trial-court petitioner’s theory of the casé as to the

Boiler Inspection Act was evidenced by an instruction pre-

pared by him and given at his request as follows (R. 118):

‘Plaintiff makes several charges in ‘his complaint.

One-charge is that the defendant unlawfully Violated

an Act of Congress relating to locomotive engines

known as a Safety Appliance Act: He charges that

‘defendant used on this occasion a locomotive and

5 :

‘tender which was in improper condition and unsafe .

because at a place on the tender where water is sup-

plied, it was cracked, worn and split-so as to occasion

and permit water leaking from-this crack to flood, seep

and cover the top of the tender, rendering it likely to

freeze, and that sich water did freeze on the top of

the tender where plaintiff was so at work, and that he ©

was |thereby caused -to slip and. be thrown.’

On the trial of the case all of the witnesses, and particu-

larly the petitionér, were interrogated at great length —

about the alleged leak or crack in the tender. The entire

trial centered on that claimed defect. When the case was

given to the jury the trial court submitted an interrogatory

‘as follows (R. 114): ‘‘Was there, at the time of..the acci-

_ dent in queston, a leak in or near the manhole collar on the

tender in question ?”’ The jury answered that interroga-

tory ‘*No.’? Counsel for the petitioner on the trial had -

the right under the illinois Jaw to make the final argument,

and.in making that argument he dramatically concluded by

saying: ‘So, as I say gentlemen, don’t find that there

Was no leak, or you put him out ‘of the court.’’ (R. 113.)°

Before the institution of suit the respondent had sup-

plied the petitioner ‘with hospital and medical care (R. 29)

and in addition had advanced fhe petitioner the sum of

$1,375 (R. 60)..

The respondent made no motion fora new trial but filed

a motion for judgment notwithstanding the verdict, (R.

114) making three points—first, that the. petitioner as-

sumed the risk; second, that there was no proof -of inter-

state commerce; and third, that there was no proof_of_any

negligence on behalf of the respondent.

defense of assumed risk to-the ‘jury.

judgment.

SPECIFICATION OF ERRORS ARGUED.

1. The facts of the case do not warrant: leaving the

2° There is no evidence that the respondent. had

notice of the presence of the ice.

"The amendment of: August 11, 1939 was “not re-

tonkatina its

4.. There is no evidence in the record to support the

charge of négligence.

_ 9. Petitioner cannot ground his case here on Rute

153 of the Interstate Commerce C ommission,

6. The petitioner’s testimony found, to: be false by

the jury justifies an affirmance of the Appellate Court

SUMMARY OF THE ARGUMENT.

= The. Facts of This Case Do Not Warrant Leaving reall

~~ Defense of Assumed Risk to the Jury.

Great Northe rn v. Leonidas, 305 U.S. 1.

Keys v. Pennsylvania R. R. Co., 308 U. S. 529,

Seaboard Air Line v. Horton, 233 U.S. 492.

*. Southern Ry. Co. v. Crockett, 234 U.S. 725.

Jacobs v. Southern Ry. Co., 241 U.S, 229.

: C. dO. R. R. Co. v. DeAtley, 241 U. 8.310.

a ~ Baugham v.N. Y. Pid N.R.Co., 241 U. S. 287.

- Boldt v. Pa. R. R. Co., 245 U.S. 441. |

T. St. 1. @ W. R. Co, v. Allen, 276 U.S. 165.

C. dé 0. R. R: Co. v. Nixon, 271 U pigs

Roberts Federal Liability of Carriers, Vol. II, 2nd

Ed., See. 825, p. 1597. wv

I+.

There Is No Evidence That the Respondent Had Notice of

the Presence of the Tce.

Missourt Pac. Vv. Aeby, 27: 5U.8. 426, 430. .

Schilling v..D..@ H, R. Corporation, T1l4-F. (2d)

69 (C. C. A. 2d, 1940).

Hatton. v. N. Y.,.N. H. € H. R, Co., 261 é 667, 669

(C. C. A. Ist, 1919).

Great Northern Ry. Co. v. hiteisie: 207 F. 521,

524. (CC. A. 8th, 1913). aa

C. dO. R. R. Co. v. Mihas, 280 U. S. 102, 108.

Se ~

, 1939 Was Not So engese

acific R. Co., 227 U.S

nuis, ete. R. Co., 270 U8

The Amendment of August

Winfree v. Northern

. United States v. St.

1, 3.

United States v. Heth, : 2¢ ‘ranch 399, 413.

Murray v. Gibson, 56 U. 8. 421,423 (15 Howard). ©

McEwen v. Den, 65 U.S, 242, 244 (24 Howard).

Sohn v. Waterson, 84 U. S. 596, 598, 599 (17 Wal.

* lace).

Chew Heong v. United States, 112 U. S. 536, 559.

Wichita Falls R. Co. vy. Lindley, 148-8. W. (2d) +

$28. :

, = we

_The Jury Having Found No Leak in the Tender There Is

No Evidence in the Record te Support the Charge of

Negligence.

¢ ( ‘hicago Great Western vy. Rambo, 298 U, S. 99.

Petitioner Cannot Ground His Case Here on Rule 153 of the

Interstate Commerce Commission.

_ A. ToDo So Would Involve Deciding This Case on Issues

Not Tried or Submitted to the Jury.

_ San Juan Light Co. v. Requena, 224 U. is. 89, 96, 97.

Illinois Central R. Co. vo Egan, 203 F. 937, 939

(C. ©. A. Sth). Serie ree :

M. K. d& T. Ry. Co. v. Wilhoitt, 160. F. 440, 445:

(C. C. A. 8th). .

Snyder v. Snyder, 142 Til. 60, 67.

Lesser Cotton r v. St. Lows, 1. M. & S. Ry. Co.

114-F. 133 (C. C. A. 8th).

Davis v. 1: suaee ries, 232 Ill. 284.

Cuscoiqne v. Met. El. Ry., 239. TIT 18.

\ a.

B. There Was No Violation of the Boiler Inspection Act

‘ or Rule 153 Thereunder. .

Ford vy. N.Y., 6. H. d& H.R. Co., 54 F. (2d) $42, 364

(C.°C..A. 2nd). * |

Reeves v. Chicago; St. P. M. & O. Ry. Co., 179

N. W. 689, 690 (147 Minn. 114):

Slater v. Chicago, St. P. M. € O. Ry. Co., 178 N. W.

813, 814 (146 Minn. 390).

C. RoI. & P. Ry. Co. v. Benson, 352 Il. 195, 200

(185 N. FE. 244).

Z Harlan v. Wabash Ry. Co., 73 S. W. (2d)-749, 752,

sug 753 (Supreme Ct. of Mo. 1934)..

= Wabash Ry. Co., 448. W. (2d) 136, 141.

ran

"Because of the iets s Perfidy the J udgment of the

, Appellate Court of Illinois Was Correct. "

Pomeroy Equity Jur., 5th Ed., Vol. II, See. 404.

Soo Line v. Rock, 279 U.S. 410. ear

Ill. Rev. Stat. 1941, Chap. 110, See. 189,

~mif

10 :

~~ ARGUMENT: ie

~~ Assumed Risk.

This court,'in the case of Great Northern v. Leonidas,

= alo U.S. % held, in November, 1938, in a suit under the

‘ was a def ense thereunder? ‘but that in that caseit was a

~ <yuestion’ ‘of faet for the jury. After the. verdict had been

". assumed risk was for’ the jury

ee since tlie’ ease of Seaboard Air Line. v. Horton,

_returned in this case aid while it was pending in the Ap-

-pellate- ‘Court; in a memorandum opinion in the case of. .

| Hey ys v. Re nusylrania R. R. Co., 308-1). S. 529, décided in .

inuary, 1940, this court agyin held that as to that case

Prior thereto and without

233 U: S. 492, this court jiad held that assumed risk was a

3 defense and was, on undisputed facts, a question of law. for

the court. The.case of Seaboard Air Line v.-Horton was.

followed in numerous decisions by this agg among them

being Southern Ry. Co. gd tie 4 oe U. 72h: Jac ‘obs v.

‘Southern’ Ri. Co., 41 0.-S, 299: C. d 2 R. ‘R.-Co.

De Atle y, 241 U.S; 310; aa v. NV Y.P. &.N: R. Co:

241. S. 287; Bold v. Pa. R. Re Co. 245, S. 441; 7. St. L.

~ & WR: Co. v. Allen, 276. U.S. 165; ¢ "t0.R. Co.v. Ni iron,

.. 241 U8, 218. spe Insel hei Liability of Carriers,

Vol. II: ‘ond Ed., See. $25, p: 1597.

In the-case at bar the petitioner admittedly knew of the

< existence ofsthe ice and yet without protest proceeded to

perforni his-duties whatever the cause of its: being there.

Even. if his. story Had been true. that it was caused hy a

leak, Ae knew it the day hefore and: that the weather was:

freezing. _ Tt was his, duty to report. any defects to the -

engineer sat the end of their run (R. 49) who each trip

furned i iia wrifter nN report of any defect at the roundhouse,

™ 11

at Milwaukee Junction when they concluded their trip (R.

49), but petitioner made no report of the. alleged defect.

He had’ ample time to protest and opportunity to do so \-

with people in a position to correct the. alleged wrong, and _

yet he made no effort in this direction (R. 53). He didn’t

have to make a sudden choice as counsel for steered

argue in their brief (p. 41).

This court pointed out in ‘Be aboard Air Line v. Horton

that.conduct such as that of the petitioner in this case was

-assujned risk and not contributory negligence.. ,

The‘case was clearly one of assumed risk, therefore,

under the case of Seaboard Air Line v. Horton ands the

rumerous cases that followed it, unless this court Ww ishe s to”

expressly overrule them. Pi |

‘Respondent Had No Notice of the Alleged Ice on the

Tender.

It is an andispated prince iple i in cases under the Federal -

Employ ers Liability Act that the employe er to be held liable

must have notice of the dangerous condition or that cir-

cumstances be proved from which it must necessarily fol-

low that the employer, in the exercise of. reasonable care,

would dise ‘over the hazard. .

As is to be seen fromthe undisputed facts in this case,

no one knows how long’the ice had been on the deck of the

Aender: The weather was clear and cold, both on the day

‘of the accident and the preceding day (R. 19). The jury

have found that the water did not«ome there from any leak

in the tender‘ as petitioner had falsely testified. Fault or -

“negligence on the part of réspondent may not be inferred

from the mere fact that petitioner fell and was hurt.’

Missouri Pag. mi Achy, 275 U. S. 426, 430.

Since the fecord 3 is devoid of any evidence as to how long

the ice was there and how it happened to be there, and

since there are no eircunistances which have been proved

from whicli it could be reasonably held that the respondent

must have known of its presence the essential element of

notice is entirely lacking. In fhe case of Schilling v. D. &.-

H. R. Corporation, 114 F. (2d) 69 (C. C. A. 2d, 1940), in a

uit under the Federal Employers Liability Act th plain.

tiff sought to recover, because of the alleged negligent

\ said:

failure to repair ‘cifiders on a track in which the plaintiff

caught his foot where the cinders had washed out. -With

reference to the question of notice to the defendast of the

dangerous condition, the court on page 71 of the opinion

Tt was, of course, the duty -of the defendant to pro-

vide'a safe place for the plaintiff to work and such a

*. space in the tie as that.in which he caught his foot made

it‘unsafe. ‘Yet proof of that is-not aloné enough to

charge the defendant with liability. It was shown, that

in the ordinary course of the work the cinder filling in

The ties did get washed out. and the’ duty of the de-

fendant -of necessity was-one of adequate’ inspection .

and timely repair. There is nothing to ‘indicate’ that .

the daily inspection prov ided was not equal te.what a

prudent man in like cireumstances would have done ex

cept possibly the testimony by deposition of-one train-

-man in the crew in which the plaintiff worked who came

on duty at 4 0’clock-that afternoon and testified wher *

asked if he looked at the hole more than once: ‘1

noticed it all day. _ It was there before’. He did not

report it or state any more. definitely the length of time

it had been there. As his day began at 4 o’clock that

afternoon there was little on which’ the jury could

have found that the hole had been there long encugh

to charge the defendant with constructive notice and |

the duty to repair. Proof of actual nofice was wholly

lacking. One or the other must appear te make out

actionable negligence for failure to repair.’’ |

pipes v. New York, N. H. d IT, R. Co. 261 F. er

(< A. ist, 1919). A suit was’ Secaneaed in this cas¢

SM arate 53

Sa Satta ods

rn te

hes Ss)

Brsasyy ss

[ott agent

ae ,

against the defendant for negligence in permitting ice to be.

upon the station platform upon which @ gang plank slipped

‘when placed upon it by the trainmen. On page 669 of

the opinion the ¢ourt said:

“<The fact that there was ice on the platform would

not of,,itself warrant a jury in finding that the de-

fendant was negligent. To justify such a conclusion it

should have appeared that the defendant knew of its

presence and had unreasonably failed to remove if, or

that the ice had been there such a length of time that,

in the exercise of ordinary care, it ought to have known

of it and removed it. Smith v. Railroad, 73 N. H. 325,

61 Atl. 359. Under the circumstances here disclosed we

think there was no evidence from which reasonable men

could conclude that the defendant was negligent.’’

" Great Northern Ry, Co. vy. Johnson, 207 F. 521. (C. C. A,

Sth, 1913). On page 524 of the opinion the court said:

‘“‘There is no proof in the record that the railway

company knew, or:could have known by the exereise of.

ordinary care, that the ‘pinning of a flue, old or. new,

would cause a piece to break from the same under the

circumstances as detailed by Johnson... An injury that

cannot be foreseen or “reasonably antictpated-as the

probable . result of. negligence is -—- actionable.

RGA Co. v. Elliott, 55 Fed. 949, 5 C. Ce A. 347, 20

. R.A. 582; McCain v. Chie ago, B. & 7 R. Co.,.76

Fed 125, 22... C2 AL.99; Cole vy. German aptinas & *

a Loan Society, 124 Fed. 113, 59 C. (. A. 593, 63 1. R. A.

416; Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed.

256; Hoag v. Railway Co., 85,Pa. 298, 27 Am. Rep. 653;

-Ness v. Great Northern Ry. Co., 142 N. W.. 165 (Su-

preme Court, North Dakota, October. term, 1912); 5

‘Thompson on Negligence $5333.""

See also C. € 0. v. Mihas, 980 U, S. 102, 103. )

= be 14 re. Poet

‘TIL

The Amendment of August 11, 1939, Limiting the Defense

of Assumed Risk Was Not Retroactive.

The accident in this case happéned on February 6, 1937.

The sux Avas filed in Chicago on January 27, 1939. The

trial before the jury was completed in June of 1939, and on.

June 10, 1939 (R. 9) the appeal was perfected to the Appel-

late Court.- It is to be seen, therefore, that two months-be-

fore the atebete te was amended the trial of the above case

had been completed. The court instructed the jury_at the

request of petitioner that assumed risk was a defense which

the defendant was requited to establish by the greater

weight of evidence (R. 119,°116). The petitioner recog-

nized, thereby that assumed risk was a complete defense if

properly established.

This court in the case of Winfree v. Northern Pacific,

227 U.S. 296, held that the first Federal Employers’ Lia-

bility Act was not retroactive. The cause of action ac-’

crued in the Winfree case before the statute was passed.

An employee working as an engineer met his death while_

working in interstate transportation. ’ The court held an

action could not be maintained under the Federal Employ-

ers Liability Act of 1908, and in so doing said:

se * * 6statutes are addressed to the ‘future, not to

- (the past. They usually constitute a new factor in the

affairs and relations of men and should not be held to

atfect what has happened unless, indeed, explicit

words be used or by clear implication that construe:

tion be required. sty ee,

In the re ‘cent case of Unite d State $ VY. St. Louis, ete. Ry.

Co., 70.0. S. 1, 3, the same view was taken by this conrt.

The opmion in that case was rendered by Mr. Justice

Brandei is. The suits were for services rendered the War

De’ ‘partment prior to federal control. The suits were insti-—

‘tuted in the court of claims more than three vears after

; ae &)

the cause of action accrued but within,six years, - The

Transportation Act, of 1920 fixed_a three-year limitation

period. In holding the-act not retroactive. the court said:

That a statute shall not be given retroactive effect

unless such construction is required by explicit lan-

guage or by necessary implication is.a rule of general -

application. It- has been applied hy, this Court to .

statutes governing proeedure, Unite d States Fidelity

— & Guaranty Co. v. United States, 209 U.S. 306; and |

, ~— specifieally to the limitation of actions undér another °

'. section of Transportation Act, 192 0. Fullerton-

‘Krueger Lumber Co. v. Northe rm Pacific Ry. Co., 266

U.S. 4385. There is nothing in the language of para-

graph 3 of .§ 16, or in any other provision of the

Act, or in its history, which requires us te hold that:

the three-year limitation applies under any cireum-

stances, to causes of action existing at the date of.

the Act.’ +28

- The Court of C ivi] Appeals of Texas i in Wichita Falls

S. R. Co. v. Lindley, 143.8. W. (2d) 428, has specifically

held this amendment not retroactive.

This court, since its very earliest decisions, has rec6g-

nized that-it is a fundamental rule of statutory construc-

tion that a statute is not to’ be given a retroactiv e effect.

utiless by the plain words of the statute such a construction —

is unavoidable. In tlie early‘case of United States v. Heth,

3 Cranch, 399, the Collector of Customs prior to the enact-

_. ent ofthe statute on June 30, 1800° had received certain -

_ sums of money for which he was to be compensated on a

percentage basis. By’ the act of June 30, 1800 his com-

pensation was restricted to. a smaller commission of 24% .

on the amounts collected. The court held the statute did

“not affect the prior transactions and. in so doing said on

page 413: .

‘‘Words in‘a statute ought not to have a retrospec-

tive operation, unless they are soclear, strong and im-

perative, that no other meaning can be annexed to

them, or unless the intention of. the Iégislature cannot

be otlierwise satjsfied. This rule ought especially to

be adhered to, when such a construction will alter the

pre-existing situation of parties, or will affect or inter-

fere with their antecedent rights, services and re-

muneration; which is so obviously improper, that .

nothing. ought to uphold and vindicate the interpre-

tation, but the unequivecal and inflexible impert of

the terms, and the manifest intention of the legisla-

ture.’ .

Murray v. Gibson, 56 U. S. 421 (15 Howard). In this

case a statute of Mississippi passed in 1846 declared that

no record of any: judgment recovered ina foreign court:

against a citizen of Mississippi should be received as evi-

dence after the expiration of three years from the time of

rendition of sueh judgment. This court held that ‘the stat-

ute had no application to a judgment. rendered before its

passage. In so doing the court said on page 423 of the

opinion:

‘*As a general rule for the interpr etation of statutes,

- it may be laid down, that they never should be allowed |

a retroactive operation, where this is not required by.

express command or by necessary and unavoidable |

implication. Without such command or implication

‘they speak and oer upon the future only.’*

; McEwen v. Den, 65 U.S. 242 (24 Howard). Prior to

1856 under the laws of <haliel a deed could not be ac-

knowledged or proven:in another state before the Clerk

of a court. In 1856 a,law was passed allowing this.to be.

done. The court held that this statute was prospective:

. only and in so doing said on page 244 of the opinion: .«

‘It is insisted, that the act is retrospective as well

as prospective in its operation, and coyers the ac-

knowledgment made in 1839, in New York. .

"**We think the statute of 1856 is prospective, anid

that to hoid otherwise would be a strained construc

..tion, and violate a general rule of jurisprudence, to-

wit, that it is of the very essence of a new Jaw that it

shall. apply to future cases, and such must be its con-

struction, unless the contrary clearly appears.”

Sohn v. ‘Waterson, 84 U. S. 596, (17 W siheaik The ap-

~ peal in this case-was from the Circuit Court for the Dis-

trict of Kansas. A right of action had accrued in 1804.

‘The statute of limitations passed in 1859 barred all actions

of the character involved unless commenced within two

years next after the cause of action accrued. The court

held that the statute did not affect the right of. action which

from the date of the statute. In so doing the court een,

pages 598 and 499: |

- ““The plaintiff contends that the statute of Kansas -

cannot.apply to actions which accrued- more than two -

years before its passage; because it would cut them

off and defeat them altogether, and would thus impair

-the obligation of contracts.

‘*A literal interpretation of the atatute would have.

this effect. But.it is evident that the legislature gould.

not have had any such intention. ‘The court below:

held, that as the defendant was a resident. of Kansas

when the ‘act - took. effect the time of limitation. began

ot run in his favor as against the’ present cause of

action from that period; and that the action might |

~ have been brought at any time within two years after-

. » wards; and not having been brought within that period ,

_it was batred. In other words, the court held that the |

-aet was prospective in its operation, and affected ex-

isting causes of action only from the time’ of -its

passage. “This seems to us a reasonable construction

—. and one that prevents the legislative intent from being

frustrated. ‘Words in a statute,’ savs Justice Pater-

‘son, ‘ought not,to have 4 retrospective operation,

‘unless they are so clear, strong, and imperative that

no other meaning can be annexed, to them, or unless .

the intention of the legislature cannot be otherwise ___—

satisfied.’ And this rule is repeated by -this court in 3

Harvey v. Tyler, where it is said: ‘It is a rule of con-

struction-that all statutes are to be considered pros- .

pective, unless the language i is express to the contrary,

or there is a necessary implication to that effect.’”? _

| oe

Chew. Heong Vv. United States, 112 U. S. 536. A statute

passed in 1882 prescribed that a Chinese laborer should

present a certificate on reentering the United States and

that the certificate so prescribed would be the only evi-

dence permissible: to establish his right of entry into the |

United States. Prior to the enactment of this statute

Heong had left the United States. The court held that

ihe statute of 1882 did not affect his rights and that Heong

could return under the terms existing when he left. In so

' doing the court said on page 559 of the opinion: aos

“We have-stated the main reasons which, in our

opinion, forbid that interpretation of the act of Con-

gress. To these maybe added the further .one, that

‘the courts uniformly refuse to give to statutes a_ret-

rospective operation, whereby rights previously vested °

are injuriously affected, unless compelled to do so by.

language so clear and positive as to leave no room to

doubt that such was the intention of the- legislature.

In: United States v. Heth, 3 Cranch, 398,- 413, this

court said that ‘words in a statute ought not to have a

retrospective operation unlegs they are so clear,

strong and imperative that no other meaning can be-

annexed to them, or unless the intention of the legis- .

“lature cannot be otherwise satisfied ;’ and such is: the

doctrine of this court.” Murray v. Gibson, 15 How. 421,

423; McEwen - “p= 24 ‘How. 242, 244; Harvey v.

« Tyler, 2 Wall. 328, 347; Sohn v. Waterson, 17 Wall.

596, 599; Twenty Per Cent Cases, 20 Wall. 179, 187.”’

We submit, there is’ nothing in the language ‘of the

amendment indicating an intention to make it retroactive

and that petitioner's contention must fail. ¢ .

eee: 19

: a

‘There Is No Evidence in the Record to Support the

Judgment. ~

Since the sthibiete voluntarily dtenineed pategienhe

(a) and (b) and inasmuch as the jury found there was .no

defect Or leak in the tender as charged i in paragraphs (d)

and (e), it left only paragraph (c)-of petitioner’s complaint

upon which to base the judgment. That paragraph (R. 3)

charged that thé respondent negligently permitted ice to be

~ upon the tender.

There is no testimony in the oo a how the ice

came to be upon the deck of the iW The only testi-

‘mony dilrectly bearing upon the question was that of the

~. petitioner who testified that it came there through a leak

* or wack in the tender. This story, the jury found to be: .

false by their special verdict.

The presence of the ice upon the deck of the tender can

only be accounted for by. speculation.. Neither the -peti-

tioner nor anyone else saw any act which produced .the ice.

Outside of the petitioner, the record is devoid of any proof

that any other employee of the respondent had knowledge

that the ice was there. There is no evidence as to how long -

it had been there. / Petitionier worked last on the tender

the day before. He made no report of any defect and he

was the first one to work on the tender after it left the

roundhouse the next morning. ; | .

_ Counsels’ desperate peed of some evidence of negligence

‘is established by their resort to our speculation in our’

_ brief in the Appellate Court of Illinois as to how the ice

happened to be there (Petitioner’s Br., p. 24). .No. wit-

ness testified that water had splashed out when the tank .

was filled. In trying to account for its presence there

some witnesses testified that. could have happened (R. 24;

70; 78).

~~ quarrel with their argument that Rule 153 has the force

- : “| | a:

The Appellate Court in its opinion reversing the judg-

ment‘of' the trial court found that there was no. evidence

in. thé record to support the - allegatioiis of paragraph *

4(c) (R. 136). j

Unless facts were established in the ‘record to substan-

tiate the charge of negligence » recovery cannot be sus-

tained. Chic ago Great.Western R, v. Rambo, 208 UL S. 99,

. a

Petitioner Cannot Ground His Case Here on Rule 153 of

the Interstate Commerce Commission.

A. To Do So Would Involve Deciding “This ‘Case’ on an

Issue Not Tried or Submitted to the Jury.

It must be remembered that since Counts (d) and (e}

of the complaint were eliminated which specifically

charged a leak in the tender, it left only paragraph (ec).

That paragraph (R. 3) charged -that the respondent neg-

ligently permitted ice to be upon the deck upon the

tender. Counsel now seek to sustain their case upon the

theory that respondent Violated a Statute. We have no

of law or that the courts are bound to take, judicial notice *

of the rules of the Interstate-Commerce Commission. The

vice of their position is that under the statute and rule __

the respondent is virtually an insurer. Under paragraph |

‘the statute and rule relied upon by petitioner many dif-

ferent things are involved. other than those tried before

the jury. The rule requires that the tender be kept clean, °

obviously" free from coab and dust which would fall over :

from the fuel portion. of the tender.’ The rule, requires |

that ‘means be provided to carry off the waste water. It —

was never claimed until after the judgment was reversed

that means were not provided to carry off the waste

water orsthat the deck Was not clean (R. 209). A superficial

examination of the record will show those issues were. not

tried. So we repeat—the vice of the situation is that

the rule presents a distinet issue from. that tried before.

the jury except, of course, for the alleged leak, and on

thata jury trial, admitted to be fair under proper instruc.

tions, resulted in a finding there was no defect,

We have heretofore.pointed out: that the entire trial was

consunred in thrashing out the issue as to whether there

was a leak in the tender as so elaborately and falsely

testified to by the petitioner.

if paragraph 4e was meant toe harge violation of the

safety appliaiice acts why were the acts ‘not specifically

referred to as in (d) and (e)!?) The failure to mention them

aild to rely only gn nextige nee could do. nothing but mislead

the trial court and the ‘responde nt if counsel had even

intended to charge statutory violations thereunder.

Under countless decisions in.the federal courts, in Illi-

nois and in other states the rule ‘is well established that: ‘

Jt party will not be permitted to’ raise issues in a court

of review for the first time which were not presented to

he court below.

San Juan Light Co. ve Reqiena, 224 U.S. x, (in pages

fo and 97 of the opinion the court said: |

| “It is urged that the. riegligence charged in ‘the

~ complaint related only to the condition of the wiring

mide. the reside nee of the deceased, and. therefore

’ that the court erred in permitting a recovery on the

theory that the defendant was negligent in respect of

. «+ the maintenance and care-of the wires and converters

outside, This contention must fail. . While the com-

- plaint was not drafted with commendable precision,

and, if critically examined, might be-regarded. as leav-

ing it uncertain whether the negligence charged re-

lated to-the wiring inside or to that outside whereby:

the current was sapplied, there -was no objection to

this uncertainty in the court below. On the contrary,

2 ee

a8 : : ae: |

. the trial pectenied, as “we have seen, upon the theory _.

- that the question whether the‘defendant had ailed to

_* > exercise appropriate care. in the maintenance\ and in.

| ‘spection of its outside wires pare converters wis with-

in the issues. Each party without objections from the

_other, introduced evidence bearing upon ‘that ques-.

tion; aud when it was submitted to the jury there was

; . no @xeeption upon the ground of: variance. Effect

must therefore be given to the’ well- settled rule that

-where the parties? with the assent of the court, unite |

in trying a case ‘on the theory that a particular matter ~

iNwithin the issues, that theory cannot’ be rejected

when the ease comes before an appellate court for

" review, (Italics ours.)

IUinois Central R. Co, v. Egan, 203 Fed. 937, ee Si athe

Sth). On page 939 of- the opinion the court said: 3

/ *1¢ is claimed in this court for the first time that

the court below erred in holding .that this cause is

not one arising undér the national Employer’s Lia-

bility Act but under. the state statutes of Iowa.

Whether this was error it is unnecessary to-détermine |

in this action, as,this objection was not made by the

defendant in the court below, but,.on the contrary,

it insisted at every stage of the proceeding, from the

time ‘the motion to remand was filed: until the close

of the trial, that the cause was not one arising under |

_ "+ + the act of Congress but) under the Towa’ statutes.

Therefore, even if it was error, which we do not de-

cide, the defendant having invited it, and induced thre _

court to commit it, it cannot now -be heard to com:

plain: New York Eletated R. R. Co. v. Fifth National —

Bank, 135 U.S. 422, 441, 10 Sup. Ct. 743, 34 L. Ea.-

221; Walton v. Chicago, etc., Ry. Co..-56 Fed. 1006,

* 1008, 6. C. C. A, 223, 225; Chase vy. Driver, 92 Fed. 780,

786, 34. C. C.-A. 668, 674; Mechanics’ Insurance Co.

~- 8, C. AL Hoorer Distillina Co.,182 Fed. 590, 593, 105

C.C. A. 128, 131; 31 L. R. A. (N. 8.) 873. 2

Nor is-it permissible. for one who tries his case upon

one theory to change his position in the appellate

court and ask for a reversal upon another and incon-

sistent theory. New York, ete. Ry. Co. v. Estill, 147.

23°

US. 594, 614, 13 Sup. Ct. 444, 37 L. Ed. 292; Lesser

Cotton Co. v: St. L., I. M. & S. Ry. Co., 114 Fed. |

133, 142, 52 C. C. A. 5, 104; Chicago, etc., Ry. Co. v.

Voelker. 126 Fed. 522, 529, 65 C. C.7A. 226, 233, 70

L. R. A. 264; Missouri, *etc., Ry. Co. v. Wilhoit, 160

Fed. 440, 443, 87 C. C. A. 40%, 4. “ F

M. K: & T. Ry. Co. v. Withoit, 0 Fed. 440, (C. C. A.

Sth). The action instituted was to recover damages for

- personal injuries received by the plaintiff as a section

\ man in defendant’s employ. Tite trial resulted in a judg-

... ment for the plaintiffs and while the judgment was re-

_versed on other . grounds, the court said on page 443 of

' the opinion:

“We -come next to several. assignments. prddicaited. ;

upon instructions refused, and others given, bearing’

upon the question, whether the plaintiff has assumed

the risk of injury incident to hijs- continued .use of.

the defective cars The Court of Appeals was of opin-

ion that this defense was not available to the defend-

att because it was not affirmatively pleaded in the

answer. But the question of pleading thus suggested -

was.not raised upon: the trial. ‘On the“contrary, as *

the: record discloses, each of the parties, without ob-:

_# jection from the.other, introduced testimony addressed -

to the question’ of the plaintiff's assumption of the

risk, both presented requests for instructions bearing

‘thereon, and the court charged the jury upon that

subject. -We must, therefore, give effect to the settled

rule, that when the parties, with the assent of the

~ court, unite in. trying a case on the theory that a

particular’ matter is within the. issues, they -will not

be permitted to depart. therefrom when the case is

brouaht be fore an appellate . court of review.” (Italies

ours. ).

Snyder v. Snyder, 142 Ill. 60. ‘it that case ‘oui

‘were instituted to have a. conserv ‘ator appointed for an-

insane person. ko the trial court the case was triéd upon

the ‘theory’ that the question was whether ‘the ‘defendant ~

_ had suffeiént mental capacity to transact ordinary busi:

Ms.

_° ness, whereas, under the statute, the question was whether

the person was possessed of ‘sufficient mental capacity

to care for and manage his estate.’’ The court was asked .

to reverse the case because of this error. On page 87 of

the opinion the court, said:

- “Several ‘other instructions given for ‘en defend-

ant announced the same principle in a different form.

In view of the instructions given for the defendant

at her* request, if the theory npon which-the court

proceeded was not the correct one, it having been

adopted at the request of the defendant, she can not’

now complain of the action of the court; Calumet -

Tron and Steel Co. vy. Martin,.115 Tl. 358; Illinois

Central Railroad Co. v. Latimer, 128 id. 163. Br