# Brief for the Respondent — Lilly v. Grand Trunk Western R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0094%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent - **Published:** January 1, 1943 - **Citation:** 317 U.S. 481 ## 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 - ve ; 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 » ll 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. i _ 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 oe 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. 4 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. I. = 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. 7. 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. ee \ 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 © Fedeval-. Kinployers | Liahility Act, that) assumed, -risk = . ‘ was a def ense thereunder? ‘but that in that caseit was a ~ 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. a « 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 See also: Se a oe Lesser Cotton CO. Vv. ‘St. Louis, I..M. & S. Ry, oe: 114 Fed. .133,. (C. C: A. Sth) ;. Davis y, Ill: Collieries, 232 li. IR4: Gascoigng ¥. Met. Et, Ry., 239 Il. 18. . B. ‘There Was No’ , Violation of the Boiler Inspection ‘an: _ and Rule 153 Thereunder: ‘The: jury found that mechanically there was nothing wrong with. the tender or Ww ater tank. The presence of ice upon the deck of the?téfider had nothing to do with its ‘ mechaniéal operation... This did not constitute a defect _” within thé meariing of .the Safety Appliance Act. In the ease of Ford vN.¥.. NH. & WR. Co, 54 F. (2d) 342 “0c. C. A. 2d), in-which certiorari was denied, 285 U. &. 549, the evidence showed that there Was grease on: the ‘ handhold of one of nt aes on the locomotive.: In- ‘all other respects the loeapsotive was in good working con- dition. The court held that this did not constitute a yio- dation of the two acts mentioned and in so doing said on * page 344 of the opinion: + ‘ ry ‘*An examinatior of the debates’ in re ongress’ on the passage of thesé acts, shows’ no intention by Congress iy we oe wo “S . Dass Setsiies triage em anideraiid > 2 ; 25 | to. impose civil Hobility for a condition occurring: dur- ing the operation of the train w ‘hich does not affect the — construction ‘and maintenance’ as ‘required , by the- Safety Appliance Act. 61st Congress, 2d Session, Senate Dotuments, 446; 52d Congress, vol. 23, Con- ‘gressional Record, pp. 592-5; volume 24, pp. 1273-1287 ; * Senate Committee Report, vel. 24.: Congressional Rec- —. ord, pp. 1246-1251.”". . | Reeves v:. Chicago, St. P., M. €-0. Ry. Co., 179 N. W..689 - (147 Minn. 114). In this ‘case an employee met injuries > because of a piece of coal upon a step leading to the loco- ‘motive cab. The court held this did not constitute viola- . tion of either act, and said on. page 690 of the opinion: .° ‘*Plaintiff also contended that tiie. federal “Boiler Inspection Act,’ so-called (U. S. Comp. St. $$ 8630- 8539), as amended in 1915:(U. S. Comp. St. ss § 86392- 8639d), so as to ‘apply: to and include the entire loco- motive -and tender and all parts.and appurtenances . thereof,’ and Which makes it unlawful to use any loco- motive engine propelléd by steam power in moving interstate traffic unless the boiler and appurtenances — thereof are in proper condition and safe to operate, and providing for inspection from time to time,.creates a liability 6n the facts of this case. We think this act - must be. construed, as waS the Safety Appliance Act, “so as not to Saved aoe where some foreign sub- stance has ‘found. #temporary lodgment upon the ap- _plianees of the. locomotive or tender, and which is not the result of the ordinary use of such instrunientalities but came there accidentally frog some unforeseen cause.”’ a ‘Chicago, Be. 3 M. é 0. Ry. Co., 178 N. W. 813° - (146 Minn.'390). In this case the. plaintiff met his i injuries because a trespasser without the know ledge of the railroad displaced an ice bunker so that it-projeeted upon the run- ning board. On page 814 of the opinion the court Said: “Does the fact that a trespasser surreptitiously has | placed a temporary obstruction like a loose board or - -*cover upon a running board of a railroad:car show a , : fase se 26 - violation of the act referred to? We think not. The ‘running board itself was secure and mechanically per- fect. There’ is no hint of any defect therein either as. to. material, workmanship, ,or design. The statute, ought not to be construed as guaranteeing against the acts of trespassers, at least not unless such acts render the running board. itself mechanically inseeure. Sleet makes a running board insecure or unsafe for use; yet, we apprehend, it will not be contended that the. Safety Appliance Statute is violated if a brakeman, _slips upon a running board coated with ice during a sleet storm.’ ‘The Supreme Court of Illinois in C., R. 4 & P. Ry. Co. v. Benson, 352 Il. 195 (185 N. E. 244) held the Safety Appliance Act was not violated where wire was wrapped | around the grab irons. - The court said on page 200. of the opinion: “The grab-irons or hand-holds on the ear in ques. tion complied with this section of. the act.’ Fhe wire which had been placed thereon by eu person was no part of the grab-iron.: (Reeves.v. C., 8S. P.. Mod O. Ry: Co., 179 N. W. 689; Slater v. ¢ St. re OR ee ee Ry. Co. 148 id. 813; Craver v. Franklin Cotton Mills, . 3145S: E. 570.)”’ — Harlany. W abash Ry. Co., 73 S. W. (2d) 749 (Supreme ’ Ct. of. Mo. 1934). It was latent in this case that the failure of fellow employees to close a trap door-in the floor of the cab over the stoker constituted a violation of the Boiler Inspection Act and the Safety Appliance Act. The court said, on pages 752 and 753 of the opition: ‘Defendant contends, and we think correctly so, ° that the facts proven do not show or constitute a vio- lation of the Boiler Inspections. Act, ynder our ruling in Riley y. Wabash Ry. Co., 328 Mo. 910, 44 S. W. * (2d) 136, 189. The evidence here does riot show anv - mechanical defect from use or originally in the engine or any sappli: ince thereof.' It was not a’ mechanical a defect or any faulty construction to have a trapdoor | | in the floor of the engine cab for the purpose of af- _ eet So wi fording access to the coal conveyor operating — under- neath the floor. Such was’ proper and necessary in ‘case this mechanical stoker became clogged or needed adjustment or repair. The trapdoor. was without de- fect and operated safely in the way and for the pur-. > pose intended. It was intended to be closed when not ‘in use and the engine became ‘unsafe to operate in the service to which the same was put’ only because of the negligent act of leaving the trapdoor open when it ought .to have been closed. The Boiler Inspection — Act (45 U. S. C. A. § 22 ef seq.) was not.intended to: cover the negligent act of an employee in the use or misuse of-an appliance safe and proper in itself and free from mechanical defects.” In Riley v. Wabash Ry. Co., 44 s. W. (2d) 136 it was -contended that placing a elinker hgok on the tender tank _in.such a way as‘-to make it an element of danger. con- stituted a violation of the Safety Appliance and Boiler Inspection Acts. The court said on page 141 of the ‘opinion : “The gist of plaintiff's instruction) authorizing a t-against defendant, is that if the jury found. that the servants or .agents of defendant company, . Placed a clinker hook on top of the tender tank in.a. *Toose, insecure, and unsafe position, so as to render the tender. unsafe to operate, resulting in plaintiff's — injury, then defendant was liable, not having complied with the Boiler Inspection Act. ‘The instruction does not require the jury:to find that there was any defect, or that the tender was not properly equipped.. All the jugy. was’ required to find Was that defendant’s . , servants’ or agents had misplaced the clinker hook, thereby creating the unsafe condition. | “This ‘is not sufficient for-a recovery under the ~ Safety Appliance Act or Boiler Inspection Act.”’ We: respectfully submit ‘that to now hold that the judg- ment of thé trial court could be sustained onthe ground. ‘that there was.a violation of the rules of the Interstate: Commerce Commissicn when those rules were not alluded counsel or the instruc tions would be to -depriv e the respond. ent of its right to a trial by jury. Counsel extol the virtues of a jury trial at great bagih in their brief (p. 53) and yet the essence of their argument _about the interstafe commerce rules is to ask that the judg. ment be affirmed on issues tlie jury never heard. In other words, they seek to deprive tie respondent of a jury trial on the new issues here raised under-Rule-453-—- In their brief in this court (p. 17) counsel say that ice . was something unclean- within the meaning o. the rule. But in the Appellate Court of Hlinois that Was not their . position. "In their petition for rehearing (R.” 146) they ‘said: ‘there was icé on the top of .the tender which was dangerous and caused the plaintiff to be injured. This was a direct result of the fadure of the defendant to keep th top of the tender clean.’ In other words, something other “___than ice was involved We respectfully submit thatitwe are to be held for something other than negligence, respect for enlightened jurisprudence requires that the issue be tried. To do otherwise makes a sham of the proceedings in the trial court. : ; ‘ieee of the Petitioner’ 8 Perhidy the J udgment of the Appellate Court of Illinois Was Correct. “Petitiqner in elaborate detail and on repeated occasions testified tht. the tender was cracked and split. and that water leaked out ‘of it and that the stream was about - the size lof a pencil at tlie nianhole ‘where water is taken into the ‘tender. Counsel for respondent fairly and dramatically - warned the jury that if they found against the petitioner on that issve they would throw him out of court. The fair- ness of the trial is admitted by all. The jury, after being 29 — faiyly warned, and ip answer toa specific interrogatory, found that that story of. the petitioner was false. Under — the Civil Practice Act of the State of Illinois (See. 189, _chap. 110 Ill. Rev. Stat. 1941) if there is any inconsistency tween the general verdict and a special verdict the latter an te | | - Petitioner’s testimony was’ material to the issues being tried. In fact the récord readily discloses_that that was virtually the’ only issue tried. The jury, therefore, found in effect that the petitioner commifted perjury in the trial of this case. . ; ; my In a court of equity the unclean hands of the'petitioner ~~ in this respect would be sufficient to bar a recovery. Pomeroy Equity Jur., 5th Ed., Vol. I, Sec. 404. This court in the case of Soo Line vy. Rock, 279 U. S. 410, denied recovery to a badly injured employee where he had fraudu- lently got another party to take a physical examination — forthe railroad which Rock would have been unable to the want of a binding contract because of, the fraud of the employee. We submit, however, that petitioner’s false testimony is a far more serious matter than the fraud in the Rock case. -Petitioner’s conduct tends to bring the . courts into’ disrepute. For this: high court to say to him . - now that despite his perjured.testimony conclusively estab-- lished on the trial, admitted by him to be fair, that doubt-- - ful legal questions and factual issues will, be resolved in’ his favor would be to invite misrepresentation, deceit and: false testimony in the courts throughout the land. 7 We submit that ‘for this reason alone the finding of the courts af review of the State of Illinois that the petitioner is not entitled to recovery should not be disturbed. - _ For the foregoing reasons the respondent submits that the judgment of the Appellate Court of Ilincis should be affirmed. : . Respectfully submitted, H. Victron Srixe, Suas H. Sreaws, Hanoww A. Sarrn. * [January'11, 1943.) Mr. Justice Munruy delivered the opinion of the Court. the accident petitioner testified that the top of the tender between the water manhole and ‘the fuel space, an area of some six Square feet,.was covered with’ ige ; that there was a small leak at the collar of the manhole from which water flowed onto the tender's surface ; that the rod, used for pulling the water spout over the tender, was froren in the‘ice, and he had to kick it free; that he stood on the ice and braced himself as he reached eut with the rod to pull the spout, and thet as he pulled, the rod's hook slipped on the spout, ani his feet simultancously slipped on the ice, causing him to fall to the ground. . 145 U. 8. ©. 99 81 ot org. 245 T. SC. $6 28 of ong. 2912 TM. App. 73,.37 N. E. 24 888. _ 2 Lilly va. Grand Trunk Westers RB. RB. Co. " the Reiler Inepectidn Act), first that respondent used “a lecome. tive and tender which was in improper condition and unsafe to operate in the service, and its condition canst ituted petil to life and limb in that . . . the top where Was required to work was slippery and covered with it its condition constituted unnecemary peril te life and limb, : . tender . ... at the part where the watgr is supplied . te be (sie) cracked, worn and gplit, se as to occasion and permit the leaking of water from ahd through this crack, rendering “it likely and liatde for the water to freeze When the jury rendered its general verdict for petitioner, it als answered in the titted by respondent : “Was there, at the time of the accident in question, a leak in or near the manhole collar on the tender in question t’’ Respondent then moved for judgment notwithstanding the verdict on the ground that the answer to the special interrogatory removed all question of violation of the Boiler Inspection Act from the case. that there was no evidence of negligence, and. that in any event petitioner assumed the risk. The trial court denied this motien. but on appeal it was held well taken in all respects. For our purposes the case resolves into two questions: (1 Granting, as the jury found, that the tender did not leak, could the jury nevertheless find that the Boiier Inspection Act was vio- ‘ated by the presence of ice on the tender’s top; and, (2) Wa the jury properly instructed that it might so find? We believe that both questions should be affirmatively answered arid that th: judgment below should be reversed. . The Boiler Inspection Act (§2) provides: . “It shall be unlawful for any carrier to use or permit to be used? on’ its line any locomotive unless said locomotive, its boiler. i 4 i stand such . tegulations hereinafter provided for."’ 45 U.S. C. § 23. d Negligence is not the basis for liability ander the Act. Instead it “imposes upon the carrier an absdlute and continuing duty to maintain the locomotive, and all parts and appurtenances ‘thereof, in proper condition, and safe to operate without unnecessary peril te life or limb."’ Southern Ry. Co..v. Lansf 297 U. 8. 398; — #1; Baltimore & Chie R. R. Co. v: Groeger, U. 8. 521; ef. Brady v. Terminal R. R. Assn., 303 U. 8. 10. Any employee ea- gaged in‘ interstate commerce who is injured by reason of a viola- tion of the Act may bring his action under the Federal Em- * ployera” Liability Act, charging the violation of the Boiler In- spection’ Act. Moore v. C. & O. Ry. Co., 291 U. 8.°205, 210-211; Great Northern Ry. Co. ¥. Donaldson, 246 U.S. 121; Baltimore 4 OR, R. Co. ¥. Groeger, supra. -The Act, like the Safety Ap- pliance Act, is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the + we of safe equipment. Cf. Great Northern Ry. Co. ¥. Donaldson, rupra; St. Lowis & Ilron’Mountain Ry. v. Taylor, 210 U. 8. 281, 295-96 ; Louisville & Nashville R. R. Co: v. Layton, 243 U. 8. 617, 621; Swinson v. Chicago, St. P.,.M. & 9. Ry. Co., 294 U. 8. 529, . 531. And, the Interstate Conimefce Commission is broadly .au- thorized ta set the standards of compliance by prescribing ‘‘ rules and regulations by -which fitness for service (of* locomotives, _ tenders and their appurtenances) shall be .determined’’, Napier ¥. Atlantic Coast Line, 272 [). 8. 605, 612, provided that, it has been said, the Commission finds such are required to remove un- necessary peril to life or limb... United States v. B. d& O. R. Ce., 293°. S. 454; ef. Southern Ry. Co..v. Lunsford, supra. With these consideratiqns in mind, we turn to the first question. The use of a tender, upon whose top ah employee must: go in * the course of his duties, which is covered with ice seems to us to involve: “‘unnecessary peril to life or limb’’— enough so as to permit a jury to find that the fioiler Inspection Act has been ™ constfuing the Act in the light of its humanitarian purpose. The ‘violated. Fortunately, we are not left wholly to our own resources. 4 Lilly va. Grand Treak Western R.R. Co, C Interstate Commerce Commission has set the standard bere by promulgating a rule (No. 153) that the “Top of tender behind © fuel space shall be kept clean and means provided to carry off waste water."" From the phrasing of Rule 153 we think it aimed at requiring the top of the tender to be kept free of foreign matter which would render footing insecure, for example, coal, dust, debris, grease, waste water, and ice. While the locomotive inspec tion. rules are generally devoted to details of construction and specification of materials, ‘at least one other rule deals with the condition of surfaces upon which employees must stand* I+ using the word ‘‘clean’’ the Commission must have meant thing more than mere manner of construction or mechanical op- eration becanse ‘‘clean’’ does not naturally lend itself te such a there hazardous, “Rs ; From various cases denying-recovery under the Act respondent attempts to extract a general rule that the Act covers only defects — in construction or mechanical! operation affords no protection | agairist the presence of dangerous ona foreign watter,* But. - there is no warrant in the-Janguage of the Act for construing it © 7 5 The full text of Rule 153 follows: 153. water tanks.—-(a). Tanks shall be maintained.free from leaks, . and in s&fe and suitable condition for service. Suitable screens must be pre vided for tank wells or tank hose, - : (b) Not less frequently than once each mopth the interior of the tank shall = be inspected, and cleamed if necessary. . * re =. (e) Top of tender behind fuel space shall be kept clean; and means pro vided to carry off waste wager.. Suitable covers shall. be provided for filling holes. } ; kee See Official Pamphlet of Interstate Commerce Commission, Bureau of Loco = { _ motive Inspection, Ordere dated October 11, 1915, to February 21, 1929; _ Roberta, Federal Liabilities of Carriers’ (2d ed.) vol. 2, p. 2060, 2. | @ Rule 117 provides: a 1i7, Cab aprons.—-Cab aprons 1 be of proper length and- width ‘te insure safety. Aprons must be sequrely hinged, maintained in a safe and suitable condition for servite, und roughened, or other provision made. to af ford secure footing. - : See Official Pamphlet, supra, and Roberts, op. ait., p. 2062. 5 ' * Pord «. N.Y. N. A. & H.R. Co., 54 PF. 2d 342 (grease on a locomotive grab-iron held no violation of Safety Appliance and Boiler Inspeetiin Acts) ; Reeves ¢. Chicago, St. P.. M. & O. Ry. Co, 147 Min 114, 179 N. W. 689 ( presence of coal upon a step loading to the locomotive eab held no violation of ‘Safety Appliance and Boiler Se Acts); Slater v. Chicago, 8t. P., M. & O. Ry. Co., 146 Minn. 390, 178°N. W. 813 (holding no éause of action under _ Safety Appliance Act for injuftes caused by an ice banker by.a tree . passer so it projected. upon the running beard); C. BR. I. & P. Ry. Co. ©. Lilly vs. Grend Trunk Wéstern R.R. Co. . . 5 narrowly, or for denying the Commission power te remedy short- operation unsafe. The Act without limitation speaks of equipment “in proper condition and safe to operate . ... without un- pecemary peril to life or limb”. Conditions other than mechanical ‘imperfections’ ean plainly render equipment unsafe. to operate without unsiecessary peril to life or limb. Whatever élse may be said about the cases relied upon by respondent, they are suf- ficiently distinguishabie in that they either did not involve or did net consider Rule 153 or any comparable regulation. Respondent insists that reliance cannot be placed on Rule 153 because, it was not called to the attention of the trial ceurt or. the ~ jury and its injection now would involve deciding the case on issues not submitted to the jury? We de not regard this point as well taken. No elaim is advanced that the rule.is invalid, and we see no reaton for questioning it. Adopted in the exercise of the ‘Commission's authority, Rule 153 acquires the force of law and becomes an integral part of the Act (ef. Napier v. Atlantic Coast Line, supra; United States y. B. & O. R. Co., supra), to be _ judicially noticed. Caha vy. United States, 152 U. S..211, 221-22. _ The failure of petitioner's counsel to call Rule 153 to the attention of the trial court should no more deprive petitioner of its benefits than the- failure to plead specifically the -Federak Emp. iyers’ Lia- _ bility Act foreclosed the application of that Act on appeal to test the ‘correctness of ‘the trial judge's refusal to charge in Grand Trunk Ry. Co. v. Lindsay, 233. WU. 8. 42, especially when, as here, the rule only fortifies a result which we think the jury could prob- ably have reached even in the absence of such a rule. Concluding that the jury had a right:to finda violation of the Boiler Inspection Act by reason of the presence of ice on the top of, the tender even though there was’no leak, we turn now to the second queation: Was the jury properly instructed that it might so find? The eourt below held and respondent ere earnestly _ insists that with regard to the Boiler, Inspection Act the ease was tried solely on the theory that the‘ only violation of .that Act Saape was that the tender leaked, and the answer to the special Renwin, 352 Ill, 195;.185 N, E. 244 (Safety Appliance a bell ast wisleted by ‘rapping. wire around grab-irons); Harlan v. Wabasir Ry. Co., 335 Mo. 414, 73 Ss. W. 2a 748 (failure of fellow employees to close a trap door in the cab over-the stoker held no riclation of the Boiler Inspection and Safety A Acts); Riley vr. Wabash Ry. Co., 328 Mo. 910, 33 S&. W. 2d 136 (holding no _eause of action existed under Boiler: Inepection Act for injuriey sustained be- Caen See Rees ean petegtaced en 0 Condes top by o Qenew eweent). ’ 7 Lilly vs. Grand Trunk Western R. R. Co. interrogatory therefore removed all question of violation of the “Aet from the case. This was not the view of the trial judge, and while the record is not as satisfactory as we might wish, we agree with him. it is true that both charges of violation of the ‘Act do allege the ~ ' "presence of a leak,-and petitioner's counsel did-say in his closing argument to the jury: ‘So, as I say, gentlemen, don't find there was no leak, or you put him (petitioner) out of court.’’ But there is no reason to penalize petitioner for remarks of cotinsel uttered inan excess of zeal, and the full text of the complaint. is such that it is fair to Say that the presence of a leak was vital ta otly one charge. of violation br the: Act, being therely an incidental, non- ‘essential allegation of the other.* This was the Giiderstanding of the trial judge, upon whom rests . primarily the funetion of inter.” preting the pleadings. For in overruling respotident’ s motion for judgment notwithstanding the verdict the trial judge said: ‘*Now, | whether ‘there was a crack or not, yet still the question of the Safety: Appliance (Boiler Inspection Act) could ‘remain in there ‘Thus while a leak is ajleged in paragraph 4(d) of the complaint, the full text makes it clear that the gist of the charge is simply the Presence of ice: “td. 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 locomotive and tender which was in improper condition and unsafé to operate in the service, and its condition constituted unnecessary, peril . to life and lim» in that the defendant required, caused and permitted plaintiff to work on the tender of the locomotive of his train on fhe occasion above charged, in the act of putting water in the tender of the locomotive, this tender was unsafe because the top where the plaintiff wds required to work was sljppery and covered with ice and other slippery materials to — his life or limb, and the tender legked there, and while hf was so at work, above charged, he slipped on this slippery and unsafe copdition on top of the ter Jer and was thrown and caused to fall ‘and be serioukly injured.’’ ’ On the other hand the essence of Paragraph Ae) is the presence of a leak as the following full quotation shows: ‘*e. Defendant did then and there unlawfully and gontrary to the Federal! Safety Appliance Act use and permit to be used onj its line of railway st Ferndale Yard, Michigan, a locomotive and tender which was -in improper condition and unsafe to operate in the service, and jts condition constituted unfiecessary peril to life and limb, in that the defendant did operate this loco mofive and tender with the tender of this locomotive at the part where the water is supplied to and poured into the locomotive to be cracked, worn and split, so as to oceasion and permit the leaking of water from and through this crack, hole and aperture and to flood, seep and cover the top of. the tender where plaintif€ was required to be inthe performance .of his duties as em- ployee, rendering it likely ‘and liable for the water to freeze. and cause 4 ' 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 above charged, on the top of this tender, to slip and be thrown and neriously in- jured. ”» id Lilly vs. Grand Trunk Western R. R. Co. 7 if the Court did feel that 'it was the duty of the defendant to keep the tender clear so that the man*might operate.’ In his jnstructions to the jury the judge read the Boiler aioe. tion Act and stated: a " “You aré instructed’ that under the law the defendant was ‘ bound to furnish to the plaintiff.a locomotive, at the time in ques- tion, which ‘was safe to be used, and to keep and maintain the same in such condition at all times so as not ‘to — the plaintiff t any bazard or risk.”’ : Respondent took “no exception. We think this ate sufiidiently informed the jury that it could find a violation of the Act from the presence of ice, even if there were no.leak. Evidently this was the understanding of the jury because it found nothing in- -eongruous in, simultaneously answering the special interrogatory negatively and returning a general verditt for petitioner despite counsel's statement that a finding of no leak would put his client — out of court. ° : Since ilitiones’ s injuries were the result of fespondent’ 8 vioia- tion of the Boiler Inspection Act, the partial. deferise of contribu- tory negligence and.the bar of assumption of risk are not avail- able to respondent under §§3 and 4 of the Federal Employers’ Liability Act, 45 U. S. C. §§ 53, 54, as those sections existed at - the date of the accident.. This disposition pf the case makes it unnecessary to consider either whether respondent was generally negligent, or the merits of petitioner’s contention, based on the premise that respondent was so ‘negligent, that the 1939 amendment to §4 of the Federal Employers’, Liability Act,.53 Stat. 1404, completely abolishing the defense Of assumption of risk in actions under that Act, should be given retroactive application; ‘ "Under the facts of this ¢ase and the applicable law the jury conld rightfully find for petitioner. The benefits. of that rightful ‘determination should not have been taken’ from hini. The judgment below is reversed and the cause. remanded ‘for: further proceedings not inconsistent wpa this opinion. fs Reversed. é Mr. Justive FRANKFURTER concurs in the result. el ! . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0094%3A6. Public record. Not legal advice.