Petition for Writ of Certiorari — Urie v. Thompson

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SUPREME COURT, U.S.

Rte Ae oar oe cmon

‘Suprems Court of the

Auited States |

ee OCTOBER TERM, 1947,

WILLIAM T. URIE, PETITIONER,,

GUY A. THOMPSON,. TRUSTEE OF ‘THE. MISSOURI

PACIFIC RAILROAD COMPANY, A CORPORA-

TION, RESPONDENT; |

PETITION FOR WRIT. OF CERTIORARI TO THE

SUPREME COURT OF. MISSOURI EN. egiachae

‘Louis N. Wor, _

Joplin. National Bank Building,

_ Joplin, Missouri,

a Attarney y oad Petitioner.

SamMuet L. Tausty;. =~ -. - aa tange tetas

- Guy W. GREEN, ue 3

735 Lathrop Building, ==

_Kansas City, Missouri, . ° a

Of Counsel.

Petition for Writ of Certiorari— :

Opinions Below

. Jurisdiction °—

. Statutes Involved

— Questions. Presented *

Statement. hapten:

Bases of. Opinion of State Court .

Reasons for Granting .the Writ. tee

PEAYOr ota ee

_- Brief in Support of Petition for’ Certiorari—

Statement of Case _

- Specifications of Error 1 to ) Be Relied On... .

Summary of Argument—

I. Section 2 of the Boiler Inspection Act is plain.

and clear, is to be liberally construed and ‘‘was-

. intended to occupy the field” of protection from

- all hazards instead of being “intended solely

to. prevent accidental injury in. .. the operation

of trains” ee Neoeeceen senescence

II. Since petitioner was one of the class the act —

was’ passed to protect, his right to recover. dam-

ages for any injury resulting from ‘its breach

is implied i We OR

Il. The word “accident” i n Section 8 of the: Boiler

Inspection Act doesnot limit the duty under

Section 2 to ning locomotives “‘safe’’ from

“accidental injury” so that they may be em- |

_ ployed without “peril to: life or limb” Solely

from “injury by force and violence”. 7

~———

21.

If: thre INDEX

IV. The history and preamble of the Boiler In-

| spection Act are not to be considered jin in-

terpreting the unambiguous language ; Sec- -

tion 2 of the act. ai encom . “24 |

- + V. Rules of the lelabitae Commerce Commis-

sion have no bearing on.the inion eoteee oa

A escalators ek aaa ae

_ VI. The Federal Employers’ Liability Act and \the

Boiler Inspection Act are ‘in pari materia and

violation of the latter constitutes “negligence”

under the former for which an interstate em-

ployee ‘‘suffering injury” may recover ‘‘dam-

WM rot ae ae

VII. The sib on first appeal and on: the present.

" _ @ppeal stated and ‘the evidence disclosed facts

sufficient to authorize a’ recovery for negligence ‘

under the Federal ee acid Act_.:>.31

CAsEs Coes

Agi iis Lines vs. Wheeler. 147 Va. 1,132 S. E. 517. 11, 30

-Baltimore & O.-R. Co. vs. Branson, 128 Md. 678, 98

Atl. 225 eal foes 11, 12,°30, 34

* Baltimore & Q. R. Co. -vs. : ae, 266 UL s. 521, 528,

45°S. Ct. 169, 172 ee ..J0, 15, 29/

Brady vs, Terminal R. Assn. of St. ‘Louis, 303 U. S. 10,

38 S. Ct.:426 10, 14, 2 ~

Breisch vs. Central R. of N. * 312 U. S. 484, 85 L. Ed,

964 28

ve Brotherhood of Railroad Scaininan « VS. B % O. R. , nes

331 U. S. 519, 529, 91 L. Ed. 1646, ee... 10, 11, 26

In re Claim of A. & ceck oF At. Ger 346 10, 23

In re Claim of Willard E. Jewell, July 28, 1913, Opisé

Q ions of Solicitor, Dept. of Labers ps APF.» 1915, p. 261. 10, 23,

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—_—— :

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INDEX a vey lil *

CRB. & Phy. Co. VS. Cheek, 105 Okla. 91, 231 Pac.

1078. piece a eS Me

' Creason vs. Harding, 344 Mo. 452, 126 S. W. 2d 1179, :

1183, 1184. ee ¢ faves, | he

~ Davis. Vs. Wolte, 363 U. S. 239, 243, 44 Ss. co. 64, 66 |

a tooennaintly HO, LK, 22, 26

Ellis vs. U. P, R. Co., 329 U.S. 649, 91L Ed.572- . 2

- Fairport, P. & E. R. Co. vs. . Meredith, 292.U. oe. .-:

’ 548. Ct. 826 a Scshtcleenc aly a

Gemsco, Inc., ¥s. Walling, 324 U. ‘Ss. 244, 260, 89 L. ‘Ed.

- . 921, 933... aaa me 16, 1i, 26

| Gilvary VS. ‘Cayihiogas Valley RY. Co, 299 U. Ss. ‘51, 61, |

54 S. Ct. 573, 574. ae ae: 19, 21, 28 °

- Jamison et al. vs. Super hac, 281 U. Ss. 635, 650, 30

a i ee 11, 30

Kansas City So. Ry. Co. vs. Chandler, (Tex. Civ. Sat )

. 192.5. W. 2d 304. CAE? 11, 30 -

L&NRR Co etal VS. Layton, 243 U. S. 617, 37

.. S.Ct. 456, eae i 9, 10, 22, 25.

‘Lillie VS. Thompson, 92 a Ed. “Ad: Op. 115 - a heya” \:

> Lilly vs. Grand Trunk R. Co.,.317 U. S. 481, 87 L. ‘Ed. =).

se. qe eeseoe ie ; 2,6, 9, 16, 23; 29

Louisiana Weviantion Co. vs. Oy ster Canin: of La.., 226 :

U.S. 99, 33 S. Ct. 78 e tt 31, 32

Marsh vs. Industrial Commission of Calif., 217 Calif. -

338, 18 Pac. 2d 933, 936. natal Sed 11, 30_

. gy ah VF Peng: R. Cas. (C. a A. 7) 156 F. 2d 877, ;

~ 879-880 - d 29

_ McComb “e “County Commissioners, 91 U. Ss. 1, 23

~s EEe- peer tre ies yf ete ae

ooré vs. C. O. Ry- Co., 291 v. 8, 205, 214, 545. Ct. 402,

. J 28, 29

Napier vs. Atl. Coast Line R. Co. et al., 272 U.S. 605, ©

_ 47S. Ct. 207 Se } Date & SE

Rowsie vs. Thomas ?. Jackson, oti 196 Atl. 617,

i "618. es {Sot Al, 30

Sadowski vs~Long Island R. Co., 292 N. y. 448, 55 N’ E.

ns fe a Lars Bm . 12, 30, 34

‘ | . - aa | Fes Ing » \

San Antonio & Aransas Pass Ry. Co., vs. ‘Wagner, 241-

U. S. 476.36 S.Ct. 626,630 -. - 29

' Shelton vs. Thompson, (C. C. A. 7) 148 Bd 157,

F870. a NLD; 12, 30, 94

" Smith-vs: Smith, (Mo. pre 193 S. Ww. 2d-69.697' 11, 32

Swinson vs. Chicago, St. P., M. & O. Ry. Co., 294%.U. S.

529, 531, 55S. Ct. 517 ; | SER 9, 10, ' 1, 21, 26

Tex. & P. Ry. Co. vs. _ Rigsby, 241: U. S. 33, 36S. Ct. |

482, 484 | cated, 9, 10,'22, 25

Tiller vs: Atl. Coast. Line R. Co., 323 U.S " 5. 574, 89 L. Ed. a

-~—.. a \2

Tipton VS, Atchison, T.&S. Fe Ry. Co., 298 U. Ss. M1, aN\

‘8 Ct. 15k: 28.

Urie vs. Thompson, 352 Mo. 211, 176 S. Ww. 2d 471 2, 5, 21, 31.

U.S. vs. B. & O. R. Co.,-293 U. S, 454, 55 S. Ct. 268.9, 18, 19

Wurst vs. American Car & Foundry Co., (Sie. App. 3

' 103, W. 2d 6, 16 ER eRe | 30 :

_ Srarures CITED

Federal nslovert’ Liability Act of April : 22, 1908.

_ Amended August 11, 1939 (45 U.S.C. A,, Chap.

Sec. 51 et seq., 35 Stat. 65,.53 Stat. 140 ) 4; 2, 4, 4 36, 37

Federal Boiler Inspection Act (45.U. S. C. A., Chap. 1,

Secs. 23, 32) June 7, 1924, c. 355, Sec. 2, 43 Stat.

a OO ‘teats ey |

_.. Federal Judicial ade: ac Rican bt Ree REE Ey

gh i, wae. Oh ee a

. , MISCELLANEOUS | 7 |

Congendiiaa Record, Vol. 46, Part 1, p. 729 "15, 39, 40.

-“Rules of. the Interstate Comimerce Commission, 101,

116 (a); 120 dated October 11, 1915, to April 7, 1919,

_ , -Ime., Official Pamphlet of I, C.“C., and Robert's Fed-

* | eral Liability of Carriers, Vol. II, — . CA ”

Supreme Court af the

Enited States,

OC TOBER TERM, 1947.

WILLIAM T. URIE, PETITIONER, .

2 ae ss S o

GUY A.. THOMPSON, TRUSTEE OF THE. MISSOURI

| PACIFIC RAILROAD COMPANY, A CORPORA-

oe fo ne RESPONDENT.

hee \

~PENTION. FOR WRIT OF CERTIORARI TO THE

_ SUPREME. COURT OF MISSOURI EN BANC. 3

To the Honorable Chief Justice and Asuaolate Hiistices of.

- the Supreme Court of the United epee

Your petitioner. William’ 7 Urie. “respectfully erie

tions for a Writ of Certiorari to rev jew the final judgment

‘and decision of the Supreme Court of Missouri en banc,

the highest court of the State, reversing a judgment for. -

Thirty Thousand. Dollars (830, 000) in favor of petitioner

and against Guy A, Thompsan, Trustee of the Missoufi-

Pacific Railroad. Company, a ‘corporation, in an action —

brought under: the Federal Employers’ Liability Act (45

U."S. .C. 4y., Sec. 51, et ea) ; 33 gacr ‘s and the Boiler

messaiig é n Act (40. ul. . &. AN Sec. 235, 43 Stat. 659.

at €

3 "OPINIONS BELOW.

The opinion of the isu Court of Missouri en bane

“is reported in Urie v. Guy A. Thompson, Trustee of the Rt

~ Missouri Pacific Railroad Company, a corporation, 210 S.

W. 2d 98 (not yet officially reported), Copy of Opinion

"(R. 20 et seq.). The. opinion of the. Missouri Supreme

‘Court on the first appeal’ is reported in 352 Mo. 211, 176 S.

W.z = ATI. ate . \-2 |

Mos "junispIcTiON, = ; ‘ |

| Saas action arose and was devetbubied under the Fed-

eral Employers’ Liability Act (45 U.S. C. A., See ‘51, et

- $eq.).and. Federal Boiler Inspegtion Act (45 U. S. a A,

Sec. 23,.et seq.) for damages for silicosis contracted whjle

serving as a fireman in passenger service. The Missouti

Supreme Court held that petitioner had no right of action

_ under; the Federal -Acts relied on for ‘recov erv. The juris- ‘eae

on of this court is invoked under -Section 237 (b) of |

the Judicial ne as amended by the.act of February 13,

“1925 (Title 28, U.S. C. A.334 (a), 334 (b)). The judg- ,

ment of the. tee Court of Missouri en banc, the high-

est court. in the State ‘of Missouri, was entered on the 8th

day of March, 1948 (R. 34); and petitioner’s motion for

“rehearing was denied by that court on April’ 12, 1948 (R,

38), making the judgment final. Cases believed to sus-

tain ny are: as : |

Lilly V. Grand Trunk R. R. Co., 317 W: S. 481, 87

L. Ed. 411.

Tiller v. Atlantic Coast Line R. Co., 323 Uz S. 574,

89 L. Ed. 465. :

Ellis v. U; P. R. Co., 329 U. S. 649. 91 L. Ed. 572.

Bs STATUTES: INVOLVED.

The pertinent provisions of the Federal _Employers’

Liability Act (45 U.S. C. A., Sec. ol, et seq.) and the Fed- .

eral Boiler. Inspection Act (45 U. CAL, Sees. 23 and

. 32) are set forth in the appendix.

; == : . ed e

QUESTIONS PRESENTED. ©

The petition: alleged and the evidence showed that

“over a period of seven.years up to May, 1940, petitioner

' worked as a fireman on passenger locomotives: that. dur=

ing this period, sand of a high silica content ‘was’ used

in-sanders and as ballast (R. 2, 22; 23). Due to defective .

- sanding devices and ‘cab floors in the locomotives on

which he worked, silica dust, was causéd to be drawn into.

the cabs and to be breathed by him, causing total dis- _

ability. from silicosis (2-4, 23°24).

We have for decision by this. Court for the first time :

federal questions as follows: . . a7

_ i. Can an employee engaged in interstate commerce

under the Federal ‘Employers’ Liability Act recover ‘for

injury caused by the gradual inhalation of harmful quanti- ,

- ties of silica. dust resulting from’ the violations ‘by. the

carrier of the Federal Boiler Inspection Act in having the

sanding appliances and decks of the cabs in an unsafe. -

and defective condition over a period of years so as t@

cause harmful quantities of silica dust to be created’ and

drawn up through the defects in the cabs and to be in-

haled by athe employee . : =

| | OR, :

he the Boiler Inspection” At ‘limit ‘and restrict

“all rights of recovery of an’. interstate employee to. .

’

“aecidenta: injury” ‘ind in the sense that the injury_is

“attended by foree and violefice” : eae DERE ect - de

ae As- ott: Actionable negligence for which a recovery

“may be had under tRe Federal Employers’ Liability Act -

“Louse Sand of a- high and dangerous. silica content in de- |

fective. and ‘out of order sanding equipment ‘and | on the

4 “roadbed when, because ’ ‘of -the. condition. <of the. sanding

equipment, unnecessary. and. excessive quantities of, such.”

“sand- escapes and is, ground. under the. wheels causing

~extessiwe quantities io fog up and be dra awn through large.

“and unnecessary openings in: the cab. floors: where engine\

“tien. must, Jinittale it in the : ‘course of ‘their duties sO

r ‘ .

oe ied of years ars. causing Stlicosis, bens

‘ |

Cer , '

i pe Ne Se tt

. ; , > : f u "8

1 anti the railf oad: required in 1 the: exercise ? pt reason-

silica dust e ‘bush aiienaie? pee Nees id ic ceca ne Sater

P a f \\ : , e te = 3 ..

y oa ‘ : - : ay : vis : . : yee : ~ con ‘ i : . “pa . .

_ STATEMENT. Ro ye

td «* F . : ‘ 5 tence

‘ = i NN . o-

‘Putitioner: eige thie’ sctios in-a@ @ Missouri ‘state

court , under. the provisions’ of - the. Federal” Employers’ ot

A (bilby “Act (45°. S.-C. A.Sec! 51_et seq.) for; negli-:

or sence ei for * vidlajjons: of. the. Boiler Inspectiah Act. (45°.

i Stats ‘Sée. 233) resulting \in: silicosis” (RY, 43- 45).

“A ae i to the second: amerided petition was sustained

by the trial:court. and petitioner ‘appealed ta.the Supreme

Cc eurt of, Missouri. That court held as:to charges of com-

vfhoh law négligence: “We ‘do “not ‘think that it would be,

reasonable to: hole “under the’ (aets_admitied ‘by demurrery

that defendant should’ have. anticipated plaintifi’s “Injury,”

and Sve" therefore rule thi at_the petition. does not. state ,

facts. SUfficient 10 constitute a’ cause - ‘of: action. for negli-: we

gence uhder thé Feder ad Emp opera Liability At “Ae

~ . . ie . . \ . °

oo beetc. ‘ .

le¢ P ae

ohh se

to a ‘cause of action for’ Vidiatiéne of the Boiler Inspection ;

Act, the. court held: ‘tmeasured by the demurrer. one

of the omissions was failure to adjust: the sanding ma-

chines, and by the demurrer the’ result of such omission |

is plaintiff's silicosis. We. think the facts stated in a

"petition are sufficient to support recovery | for €ach of

the Boiler Inspection Act.” ‘The. case was remandéd to

‘the trial court (Urie v. Thompson; 352 Mo. 211; 176 swe

2d 471). : 2

‘Upon remand, petitioner amended. his petition in con-

formity ‘with the opiniort to more specifically allege vio-

lations of the Boiler Inspection ‘st (R. 1-4) and the case -.

was. tried before a jury: (R. 8)." ° ” ee sas

The eorpen eee as ameped alleged andl: petiioncr S evi-

“dence showed the following. facts:

Patitioner worked ag ‘¢ locomotive firenian i in inter-

‘between Joplin aw Kansas City, Missouri (R. 2, 22).

\On these runs the sanding. devices of the locomotives’ were

- filled’ ‘with mine. tailings or’ chat consisting of approxi- ae

a; ‘mately 97° per cent silicon dioxide (R. 2, 22, 23): The

‘Same: silica material was used to’ ballast the readbed (R.”

2, 22).. Phe sanding apparatus and the cab. floors of

these locomotives wefe in bad order and defective ¢(R. 7

~8,-@, 24)... esa, yee escaping from the defective sand- |

~ ing apparatus ‘and - from, the roadbed: were sucked ' up-

through the ‘openings | in’ the cab. floors by the speed

“of: the moving Jocomotives and .~to. the cabs. where

o@ plaintiff was. 4 to. work -(R. 2, 24). -As- a re-

sult of breathing

armful quantities of this stlica dust

‘over “a.-period. of. years, petitioner contracted: silicosis,

which oenny and permanently 'disabted | him from, May.

“1940 (R. 2; 23). 4 RE ee

ae OD ae Clie 5 =

“

Pos

_ state commerce, firing passenger locomotives on a run. .

Yai

}

' ’ 5

e “ ¢. ’ an

. ae ey

men ¥ =e : ‘ . . ee . . ¥ . ‘

ee The thal court gave petitioner's instruction Noa. |

TR. 8:10 ) and the respondent's Instluction’ R 6h. 13-14 .0--

. Thesé instructions required the finding of a violation of

.both tle Federal Employers’ Ligbility Act and, the Federal

-. Boiler Inspection Act-and over a per iod of seven years,"

and that this caused. silicosis. The jury returneti a verdict .

for petitioner Ta Ghirty Thousand’ gan ($30 nek: upon

\' hich judgment was ‘entered. (R.. a

“Upon appeal, Division .One of. ed Missouri. Supreme

—

~ Court, rev ersed the case outright - (R. 30). EMG casé was :

transferred to the Missouri Supyeme Court en banc where

il. was resubmitted, the opinion. of “Division One Ww ip

adopted and judy, ment for respondent was entered (R. Hy.

- BASES OF OPINION oF {HE STATE COURT.

* In ‘passing upon the .casé and as a basis for its deci-

"sion the Supreme Court of Missouri said:. ‘Heretofore the .

case ‘has heen considered upon the question of the :suffi-

ciency of the petition * * *, it Being hel the petition.

stated facts ‘sufficient to- support recovery ‘for a breach sot |

the Boiler. Inspection Act” (R. 21). After péviewing ‘the .

pleadings, the Missouri Gourt said, “It is ‘said by defend:

ant that the petition (oes not state ‘and the evidence does

‘not support a claim under the Boiler. Inspection Act” (R.

22): After detailing the evidence and considering the case -

a) Lilly v. Grand Trunk R. €6., the Missouri Court, satd,

“in the former review this court ruled with the Lilly caye

wine °° *. *: 0 ‘unnecessary that there be alleged

shown ) a defect in construction. or mechanical oper ation.

It was said, ‘the sanding dev ige which TS out of | ad} St

"ment is an unsafe appliance, the very thing that the car-

_ rer, under the Boiler Inspection Act insures against’ ”

(R.. 257. © ; ;

ak ip /

a ‘ow

\ at

The court then’ sets out the nub of the present opini-

ion’as follows, “In the former-review this court did not

treat with the contention that silicos:s is not an eril at

whigh the Act is aimed. If none of the’ consequences

which’a statutory enactment was designed te guard against

has resulted from its breach, such a breach does not con-

stitute. an actionable wrong, even, though some other . In-

jurious consequence has resulted. od :

This brings us to a more particular examination of |

‘appellant- defendant's contention chat the Boiler Inspec-

tion Act.is’ desiyned to. guard against ‘accidental injury,

‘and that raieaae is not within’ the purview of thespro-

tection of the act’. (Italies ours): (R.-25-263. ay

The-cf@urt then stated “There is a definite differenti-

ation: generally found . ‘in the adjudicated cases between

accidental injury: { te idental in the sensé that the injury

is attended by force or violence ) and pneumoconiosis (in-

cluding siftecsia) * * *" (Kh. 22)... eer

After considering Section 2 of. the Boiler - Inspection

Act in the light of rules promulgé ated under it by the Inter- |

state Commerce Commission, thé history of: the various

safety.appliance acts, Section 8 of the Boiler Inspection Act

dealing with reports in case of accident from failure of a

boiler and the preamble to the act,.the court .reachetl. the

following conclusion, “If seems to us the act (considering

the language of the Act itself, its preamble, its history,

-and-its ancillary regulations) is aimed at promoting safety

from. accidental injury, as distinguished from injury due

to the gracual inhalation of. harmful. dusts. The judg

ment should be. reversed” (R. 20). | ae “oe

The above resume’ of the opinion of the Missour? Court

_shows that it constituted nbthing more than a reconsidera-

tion and reversal of its first opinion. - The court did not

question the sufficiency of the evidence te stippert the.

aThegations of the pétition. It wa’s conceded that the peti-

tion pleaded and the evidence supported the jury's finding

that there were violations of ‘the Boiler Inspection Act

‘in the use and maintenance of deféctive sandirig devices

anid defective cab floors which caused plaintiff's silicosis.

Notwithsti inding’ this, it was held that the demurrér to the

petition should’ have. been sustained on the Sivet appeal.

_ REASONS FOR GRANTING THE WRIT.

This. court has never had for decision an action_for

damages under the Federal Eriployers’ Liability Act for

negligence or-for violations of the Boiler Inspection Act‘in-

volving injuries ether than “accidental injuries,” and: has

thérefore never directly passed upon the impor tant ques-

tion’of whether there may be recovery in such an. action

for injuries not “attended by force’ and violence,” The

second opinion of the Supreme Court of Missouri. recog-

‘nized that the Interstate Commerce, Commission, by v irtue

of the authority conferred by the Boiler Inspection A, 1S

:mpowered. to and has enacted regulations aimed at pro-

tecting the health of enginemen, yet, it heki that recovery 7

for. violations of the act is limited to “accidental injurv”

in the sense that-the injury is “attended by force and -vio-

lente” (R. 27-30).. It recognized that recovery had been

dillowed for negligence under the Federal Employers’

Liability Act resulting in silicosis but refused to apply

such law here the injury occurred * on a Imometive.

This petition’ therefore raises substantial and important

questions fegarding the scope and extent of the protection =

afforded employees insofaf as“A recovery for injuries un-

der the two acts-tsj involved. The determination by the

Misseuri court is ‘unquestionably’ contrary to the. manner

in w hich this court would have dec ided the case.

_ eee tay ee Ra netclnae

II. ae |

The determination of the scope and effect of the Boiler

Inspection Act by the. -Missouri Supr eme Court is in direct.

conflict with conttolling decisions of this court holding -

that the Boiler Inspection Act’ was not “intended solely to -

—_— accidental aon in the operation of .trains,”” but |

“was intended to oceupy the field” of. protection of engine--

men from ail haat Napier v. Atlantic Coast Line R.-

Co., 272 U. S. 605, 47S. Ct. 207;.U.S. egal. v. B. & O. R.

Cg. et al:, 293 U.S. 454, 55'S. Ct. 268; Lilly v. Grand Trunk ae

Western R. Co., 317. U. S. 481, 87 L. pa dil. .

nae Aer \

_ The opinion conflicts with decisions of this.court hoid-

ing that where any injury results ‘to one fot whose benefit

a statute was. enacted, from disregard of such statute the

"right to recover damages: is implied. Swinson v. Chicago,

St. P.. M. & O. Ry. Co., 294 U: S. 529, 1. c+ 531, 55 S. Ct. 517;

| Gilvary V. Cuyahoga Valley Ry. Co., 292 U. S. 57, l. ec. 61,

54 S. Ct. 573, 1. ¢. 574; Moore v. “thet & O. Ry. Co.. 291 U..S:

+ 205, 1. c, 214,°54 S. Ct. 402, |. c. 405; Davis v. Wolfe, 363 U..

~S. 239, 243, 44 S. Ct. 64, 66; L. & N. R. R. Go. et al. v. Lay-

ton, 243 U, S. 617, 37. S. Ct. 456, 457: °F. & P. Ry. Co.

v. Rigsby, 241 U..S. 33,°36 S. Ct. 482, 1. ¢. 484.

cee |: |

“Fhe Supreme Court of Missouri ‘in cinseuine the

Boiler Inspection Act, has violated rules of : statutory.

' construction iaid down by this court and. other Federal - ,

» courts in the following respects: i

(a) In holding that the word * accident” as used in»

Section 8 modifies and limits the duty placed on the rail-

road by Section 2, to the requirement that locomotives

he “safe” from “accidental injury.” so that they may be

employed without “peril to life or limb™ frora “force. and

; ‘ .

violence.” Napier Vv. ‘Atlantic Coast Line R. Co. et al.,

272 U. §. 605, 47S. Ct. 207: B. & O. R. Co. v. Groeger, i

U. S. 52h, 45 S.-Ct. 169; In re Claim of A. E. Clark,

‘Opinions of Attorney General 346; In.reC laim of Wil lar

E.sJewelf, Ovin. of eres Dept. of Labor, Apr., 1915,

p. 261.°

ot) In hoiding that’ the plain.words ana “meaning of

the Boiler, Inspection. Act are limited and overcome ‘by °

_, the history antl preamble of the ‘act? _ Fairport, P.& E.R.

Co. v. Meredith, 292 U. S. 589, 54 S.Ct. 826; Tex. & Pac. . ;

. Ry. Co. ve Rigsby, 241 UsS. 33, 36-S. Ct. 482, 484; L. & }

~R. Co. et al. v. Layton, 243 U.S. 617, 37S. Ct. 456; ete

Wolfe, 363 U.S. 239, 44.S..Ct. 64; Swinson. Vv. C.; St: P., M.

& O. Rij. Coz, 294 U. S. 529, 95 S. Ct. 517; Gemsco, Inc., y..

~ Walling, 324 U. S. 244, 89 L. Ed. 921, 933; Brotherhood Of.

BR. Traingnen v, B. & O. R.*Co., 331 U. S. 519,, 529, Or:

L. Ed. 1646, 4652; Brady: v. Terminal R> Assn. of St: Louis,

303 U: S..16, 58 S.Ct. 426.

(ce) In considering regulations passed by the ae

~ state Commerce Commissien undef the act as limiting the

benefits given an injured employ ee under the act. Napier

v. Atl. Coast Ry Co., 272 U.S. 605, 613; 47 S. Ct. 207, 210;

B. & OLR. Co. v. Groeger, 266 U.S. 521, 45 S. Ct. 169.

-(d) In distinguishing. between injuries for. which x!

recovery: may be had for ° ‘negligence” under the Federal

‘Employ. ers’ Igiability Act and injuries fot which recovery’

may be had for violation of the Boi! er Inspection Act,°

instead. of construing ‘said acts in pari materia whereby

/ violations of the Boiler Inspection ‘Act constitute “negli-«.

gence” for which ; damages may be recovered . by em- |

plovees “suffering. injuries” as a proximate - result, there-

— of: Namer-v. Atl: Coast R. Co., 272 U..5. 605, 61% 47 S.

_ Ct: 207, 210: Fairport, PY& E.R. Cov. Vv. Meredith, 292 U. $.-~

589, 54 S. et 826: Tex. & Pace. Ry. Co. v. ' Rigsby; I4}. Vy.

“- §. 33, 36-8 “Ct. 482, 484; Lb. & N.R. Co. et al. v. Layton, 943,

“9

2d tel 157 F-. nd 709. ae

OY se eo and. excessive. y

into the ab -where petitioner inhale A over a -périod

ie 8

U.S. 617, 37 S..Ct. 456; Davis v. Wolfe, 363 U. S. 239, 44 s

Ct. 64; Swinson v. C.,.St. P.. M. &O. Ry. ‘Co., atl U.

529, 55.8. Gt. 517; Gemsco, Inc., Vv, Walling, 324 U. reget .

89 L. Ed. 921, 933: Brotherhood of R..R- Trainmen v. B: &

—O. R. Co., 331 U. S. 519, 529, 91 L. Ed. 1646, 1652; Brady

v. Terminal R. Assn. of St. Louis, 303 dt S.°19, 3B Ct.

426. es

B. & O. R. Co.’ v. Branson, _(Md.j 98 “Atl, 225, ©

229:. K.. Cc. S. Ry. Co. v. Chandler, (Tex. Civ. Bil

| igz. S. W. 2d 34, 310, Jamison et al. - FF Carns

cin, 281 UL S. 635, 650, 50 S..Ct. 440, 442; fhosinate v.

Thomas. .F: Jackson, 196 ‘Ati.- 617, 1. ec. 618; Marsh v.

Industriat Commission of Calif., 217 Calif. 338, 18 Pac: 2d

933; 936; Wurst v. Amerwan Car & Foundry Co., {Mo. -

* App.) 103 S, W: 2d 6,:16; Sadowski v. Long Island R. Co.,

292 N. Y. 448, 95, N. E. 2-497: Atl. Coast Lines Vv. Wheeler.

"147 Va. 1, 132.'S. E, 317; Cr. 1. & P. Rw. Co. V. Cheek,

105-Okta. 97, 231 Pac. 1078; ee y, Then upson, “148 F.

The opinion -* the “Supreme Court ef Missour: on

- prior appeal is: in “conflict with state and’ federal dect-

- sions under’ the Federal Employers’ Liability Act in hold-

img that although respondent used sand of a high and

_ plangerous silica content in defective and out of order

» Sanding ‘equipment, because of which; titmmecessany—and

- Bxceysive quantities ot sand escaped aad was ground

‘ef years causing silicosis, the titioner could not yecover

MeComb v. County. .Commissvoneys, S91. UW. 'S.-1, 23 L. Ed.

“185; Louisiana — Co. vf Dyster Commission of

Louisiana, 226 U. 5.99. 33 S.Ct.78;, Creason V. Harding,

344 Mo. 152, 1265. W. “2d 1179, 1183, 1184; Smith V.2Smith,

~ (Mo. App.! 192 S. W. 2d 691, 697: Sadow sky’ Bt &. KR. Co.,

antities. were draw n

" s e 2° 1 . ; | ME ape

. mB 4y / Ae

292 N. Y. 448, 55 N. E. 2d 497; Shelton vi Thompson, 148

‘W. 2d 1; 157 F. 2d 709; B. & OR. Coy:

678, 98 Atl. 225; C.,R. i & P.R. Co. v.(Ch

. Liilie v. Thompson, 92-L. Ed. Ad. Op2H5.

, It is. essential that the 1 be granted in. ‘order to

determine important Estions involving the interpreta-

ral Employers” Liability Act and ‘the: Fed-

eral soiler Inspection Act as t6* the type and hature of

injuries which may be the subject of fecovery and. im-

portant questions as to the scope of the : administration of

- the Acts insofar "as protection of etnployees from injuries

other than those attended ‘by force and violence is -con-

Brayson, 128 Md.

, 105 Okla. 91;

‘ igerned. -° ? : “2a

—.. *, , op

2 7

ae ie PRAYER. |

Wherefore, °vour petitioner prays < that a writ of cer--

_ tiorari be‘ issued out of this = directed to the: Su-

_ preme Court of Missouri. cemmeinding said court to

" eertify and send to this: court a Ulanseript of the: record

in the case entitled. “William T.: Urie. respondent, vs.

Guy A. Thornpson, trustee of the Missouri Pacific Ratl-

roag Company, a Crporatian, appellant, number 39908,"

including also ‘the proceedings in said Court, to the end

—that said cause may be reviewed artd de¢ter mined by this

court and the judgment af the lower egurt rever sed ;

| _ Lotus N. WOLF, 4 |

St Joplin National ‘Bank Building

. Joplin, Missouri, J fi

7 — Attorney for Petitioner.

Trusty & PUGH, Lhe a

S. L. Trusty, 5 \ eit Patera haere oc.

Guy W. -Green,, 2°. Xo! Noe Smee)

735 Lathrop Building,

Kansas City, Missouri, :

Of Counsel. z *

eral: Emplo¥erk’ Liability Act Ao accidental injury.

_/ STATEMENT OF CASE. eee

The facts with reference to the. opinions below, juris:

diction of/the court and. the statutes involved have been

sufficiently covered inthe petition and wi! not be here

repeated. The issues, the pleadings, and the evidence have’

likewise been. discusséd in the preceding petition? so that

| ‘they will not be — at this point.

‘SPECIFICATIONS OF ERRORS TO BE van

‘The Sunrena Court of Missouri. Erred:

1.. In holding ‘that. the Boiler Inspection Act in re-

quiring the\ locomotive to be ‘safe ahd suitable” and so

as not to “expose. to urinecessary peril” was. intended. to

prov ide protection from accidental injury instead of pro-

tection from all hyzards of. employment in interstate com-

merce. \} \ ae a

. » 4 \’ *

2.. In holding that “accident” as used in'Section 8 of

ire act limits and restricts the broad provisions of Section

2 of the act and the werd-“injury” in Section 1. of the Fed-

ey Int dking that the history and: preamble “of the

act are to be used as aids /to the construction of the un-.

2 ambiguous janguage ot Section 2 of the act.

Tn holding that the scope of thte act is limited by

Seistier: of.the Interstate Commetce Commission issued

by virtue of Section 2 thereof,

5. $n holding thateven though an injury was suffered

4s-a direct resyilt. of violations of, the Boiler Inspection

Act, there can. be no. recovery for the injury suffer ed.

6. (Tit tailing to construe the pr ovisions of the Federal

ae Emplovers’ Liability Act in pari materia with the Boiler

Inspection ‘Act ;

’

ae | failing to ove effect to the unr intcivked mean-.

ing of the word “injury” as used in the Federal Employers’

Liability: Act. - . an tice >

‘ - .

8. In denying recovery’ for negligence ‘in Maintain- ,

ing and using the locomotives and their equipment, even

though there is no statutory mght given for violation of

the Feder al ‘Boiler: Inspection Act aione. 7

ey /

yet

| ‘< >

+ |

> \

\ ee

\ 3

a :

“ARGUMENT.

Section. 2 of the Boiler ae Act Is Plain ‘and :

Clear, Is to Be Liberally Construed and “Was In-

tended to Occupy the Field’ of Protection from All

Hazards Instead of Being “Intended Solely to Prevent —

Accidental. Injury in the Operation of Trains.” ye

se The Boiler Inspection Act is divided into two separate

and. distinct parts. The first part of Section 2 places a gen-

eral obligation upon interstate carriers not to use any loco- -

‘motive unless, ‘‘said locomotive, its boiler, tender and al}

‘parts and appurtenances. thereof are in proper condition |

and safe to operate in the service to which the same are

‘put, that the same may -be employed in the active service

of such carrier without unnecessary peril to life or limb »

«42 This isa general obligation resting upon w@ilroad

_companies entirely distinct from any inspection that may

~ everoccur. The second part of the act creates 4 system of

inspections under the chief inspector. and district inspec-

tors and provides for rules, regulations. and reports. Sec- -

tiori 2. would be entirely operative if no other part of the

Bill had been enacted. Its requirements are entirely sep-

“arate and distinct from the rest of the act (Cong. Hearings,

Cong. R. 1246, ‘Part1, p. 729, Jan. 10, 1911). Napier v. Atl.

Coast Line R. Co. et al., 272 U. S. 605, 47S. Ct. 207, =

> This action involves the obligation placed upon the ~

catlroade-by- Section 2 of the act. Its language is ‘clear,

‘definite and certain. B. & O. R. Co. y. Groeger, 266 U. S.

"521, 523-524, 45 S. Ct. 169,170. “The = is. to be lib.

~ erally comstrued in the-light of its prime purpose, the pro-

_tection, of emplovees..by requiring the use of sufe equip-

16 -

ment” (Italics ours). Lilly v. Grand Trunk Western R.

Co., 317 U. S. 481, 486, 87 L. Ed##411, 415. There is no war-

bas in the language of the act for construing it so narrowly .

as to limit it to the requirement that a locomative tender

‘and its appurtenances be safe from “accidental injury” SO

that it may he: employed without “unnecessary peril to

i life or limb” from “foree and violence.” As said in Lilly

v. Grand Trunk Western R. Vo., 317 U.S. 481, °87 A Ee

411, 416, “The act without limitsition speaks of equipment

‘ii proper condition and safe to operate re * without un-

necessary peril to life or limb.’ Clearly ‘the locomotives,

are not ‘safe to operate”. and ‘without unnécessary ‘peril

to life or limb” within the requirements ‘of the Act when

sand of a high and dangerous silicia content is used in de-|

fective and out of, order sanding equipinent and used, on,

the roadbed nd because of such condition of the sanding »

équipm ment unnecessary and excessive quantities of such *

sand ‘escape ahd are ground, under the wheels and ¢ause

excessive quantities to fog up and, because. of large and -

unnecessary openings in: the floors of the cabs such dust

from sich’ sanders and dust from'the roadved is drawn up

‘through such’ holes into the cabs and where the fireman

‘must inhale it while doing his work and over a aie of

years and it,causes silicosis.

; ‘The Missouri court did not hold that the language of

. Section 2 was ambiguous; neither did it hold that continued

exposure to silicia dust by reason of defective sanders and

- cabs“did not render the locomotive and its appurtenances

-unsafe_or was not an “unnecessary perif to life or limb.’

Yet it held that, the act was not*broad and inclusive enough

to authdrize: recovery: ‘by an interstate employee for such’

violations: “This holding directly conflicts with controlling

decisions. of this Court defining the scope of the act. |

The Missouri Court misconstrued the case of: Napier v.

Atlantic Coast Line R. Co., 272. U. S. 605, 47'S. Ct. 207, and

Wigisc 3, eae

its holding is_in ‘direct conflict side That case re-

quired, “a determination of the scope and effect: of the

Federal Locomotive Boiler: Inspection Act.” The question ._

“was whether the act occupied the field of regulating laco-

‘motive equipment. used in interstate commerce so ay to

preclude, state legisiation. aie: ;

The-court first set out Section Q of the Boiler Inspec-

tion Act and said “Other sections confer upon inspectars:

. and the Commission power to pr escribe requirements and.

‘ establish rules to securé compliance with the provisi i"

of Section. y

-.One of. the state statutes in issue was a Georgia act re- }

quiring, an automatic fire door. This court pointed Qut:. |:

“The, automatic fire door. conserves the health of

he firemalspy protecting him from exposure to ex- |

*tremes of heat and cold while.performing his duties;

* conserves: his évesight by reducing the amount and

extent of exposuresto the glare of the fire * * *”’

| The Wisconsin regulation: in question provided for cab .

curtains the .purpose of which was to protect, engineers

and firemen from exposure that “caused great Giscpryfort

and danger of serious illness.”

| This court said “6ach devite was prescribed by the ~

“state primarily to pfotert, the health: and comfort of engi- -

neers and firemen.” ss

3 sia Se

In support of the claim that. Congress had not occupied

- the entire field, the state’s main argument was “that the

Federal regulation endeavors solely to prevent aceidental

injury in the operation of trains, whereas the state regu-

- lation, endeavors to prevent sickness’ and disease due to

excessive and unnecessary exposure.” The. question as

put by thrs court was: *“Did Congress intend that: there

migMt still be state regulation of locomotives, if the meas-

‘ - nent e :

_ ure _was, dir

‘and comfort, nd affe

jad

vache $2 ikem: ae ¢ diy ES

Geted | primarily to: the promotion of the health .

tally?” tn, determining the case the court said:.

sn"

Nie “We hold: that state } legis] tidn is. preciiuded, ‘Hes

_ cause’, the Boiler Inspection Act\vas we construe if,

* was intended to occupy | the field. Thé broad scope of.

“ Author ity ‘cont@rred upon the Commission aves to that;

oo ~* cgnélusion™ *(Ttaties ours):

4 ee

While the c case > did not. ihvolve. the q sition of a tight

Of recovery for’: impairment “of health, it did directly con-

strue the s¢ope and. ‘effect af the‘ Boile Inspection Act,

‘The Interstate Commeree Commission could. have exclusive

‘s » authority under the act to prescribe new.or additiorig#” de-

©"),

’ «ple , health: and ‘comfort without

“ hy Seetion! 2 of ‘the . act. * Such reg

‘ walidly: pre WU

Sn move the: existing danger: to health, or’ ‘unnecessary pefil -

‘ wices only when. they ‘would. protéct tHe health and\gom- }

~ fort. of. engineers. and firefhen_ against the danger existing +

ch* changes, and becatise.

of the gener al and absolute duties’

r sited gapon: a ‘finding that they would, ry

to lifer HimBy” /U.'S: et aly v. B. & O..R. Co. et-al,,/293 ”

- “USS. “454,463,464, 55S. Ct. 268, 2 eer ee

ae ‘The same fi ling is. necessary in an action to” yecover

damages for br eachvof the Boiler Inspevtion Act. If;the act |

‘is baad Sopa 10% av i Seo the. teat ee to gencibe

loyee fof injury 19. hi

the © Commissio, i

: hidars of the. fire’ would surely be Ayithin the scope of pro-

- Aeon atret by the act. So. would | an, engineman who*

ed safety, -if at:all, only ineiten_

ineers fen fire-.

* “Palrgad existing’: er aN peril to life: or limb,” 7a ‘re- i

Ne cdvery may be mote ‘by. an p

) health, ‘frorn’- the”“cohdition na hee

. presejits ‘dunriecessary peril to life. oy limb.” ‘Under! ‘the .

y Seeuni Tn Napier,. a ‘firemai gradually developing | ‘eat-

ACTS: ‘and. loss of ey ésight-t fr rom-eontinued exposure tapthe —

laced upon the carriers: '

lations ‘could’ only | ‘be_ ae

‘ . . “are

‘ . ; . f -

. * . a 4 ss . * - °.

' . ¢. 3 ra, = °

Pes

dev veloped cold’ ind ° pneumonia évom" ‘exposure, to snow,

wind and rain-in an: open: abs ,

Q Ip cdhstriing the Napier case the Missouri court said...

“The reading of this:case does disclose a 4acit recognition

ae the validity of the State's. atgument that’ the, Federal .

é regulation endeavors. solely .to ‘prevent cidental injur ee

-in.the operation of. trains”. A(R, 27)... This is a ‘definite

Inisinterpretation of the language of this court: The opin-. is

ion expressly overrules the. State’s argument.’ At most the

. Opinion “discloges at tacit recognition of the validity of the |

‘statement that the Commission had theretofore made: no

regulations directed primarily to. the prevention of. impair-

_fnent of héalth from: the causes sought to be removed “by

_ the states, but, it did not rule that the act: “itself did not .

require ‘such protection, to héalth. It held that, the’ con-

-tention by the. states, “i if)true, is‘ not of legal significance.”

. The opinion is als in. direct conflict .with the con-|

struction of. the act_given it bar this: court: in U. S. ct al. v:

B. & OAR. Co. et-ql.-293-U. S. 454, 85S. Ct. 268.. This

+ involved the power of the Interstate Commerce Commis-

‘siofi to make: an orig: under the Boiler Inspection. Act re-

quiring railroads ‘to equip certain stéam locomotivespwith

power opelated reverse gear Mhstead of the had reverse -

b ae in- use on “31 097 | locomotives in the ‘United States. -.

e railroads challenged the jurisdiction of the Commis- —

_ sion ‘on the grounds. that the procedure was cunauthorized -*

‘and't at “a power reverse gear was not a safety. device or ©: ,

_appliance within the meaning | of Section 2 bf the Boiler

Inspection, Act.” Pe cahers eke :

In over ruling. thjs ‘condition, the coitet’ said,. ae c. 458:

“First, ‘the Commission clearly has wb: in .

. an appropriate proceeding, to forbid the use of a Yoeo-

- motive equipped with a manually Operated reverse |

gear, if; by reason thereof, the engine is. rendered uns —

| che or subjects employees of the ravirogd or others to...

. , 8 “hes ie aa

Len x. Ps Me See a he

A er Se eae:

te) of: power operpted? revetse\gear for manually qperated

aa _ throug excessiv e “exertion or fatigue. To require the

stallation of ,power operated reverse gears is, in its

ne Commissior

or the power déeleg sated to the Gom-

mission by.the Boiler ection Act as amended is a.

> je. general ‘one” (Italics, ours). oe,

; ake = ax one Be ot

PS ee If the Substitution ‘of a power opezated 1 reverse gear

“could he ordered by the Commission to protect ‘the health ©

of employ: ees it would have ‘such power because the man-"

ually” ‘operated rev érse” gear would. impair. the. healthy of

the engineer: or. it would gender 1 the lotomotive unsafe, or”

. ‘subject employees to “unnecessary peril’ to life, or inh”.

within, the meaning of Section: #2 Of the act, and becatise

an eggineer who suffered a | nerv ous. breakdown through

operated reverse gear would -be within: the intent, scope,

and frotection of the act. If so, ah The nnd suffering.

"such, breakdown could. maintain. an action®for a violation

., 1 power to issue. ‘such: régulation.

m « . Could it be hgld: in the’ face of the Napier and B.,& ..

=<" Cases, that’ the act is not broad enough to, authorize the

Commission to make regulations aimed at prevénting in-

~ jury from silicosis® by: keeping sander§ in ordes and dis-

‘unnecessary perik3 to life, or “timb,’ The substitution .

ae / reverse g gear might conceivably be found necessary to.

_ +» promote safety, éven if it did so only indirectly by pre-

perio os venting the impairment of the. health of engineers:

-Mature> ‘thin Qe Scope of, the authorify delegated to.

“excessive exértion ‘or fatigue, fram using. the ‘manually: °

® «°

wie thereof, ‘even Though, the Commission had Hot exercised its: oe

peénsing with. openings in the decks. or floors of cabs? Ob- °

\ iia viously not! wee CARS e a ae

The Commistion thay issue such regulations, if loco-

a _motiv es. expgsing enginemen to-silica dust constitute an,

“unnecessary peril to life or limb.” If they. de, they vio- ,

: ate “tHe act. -If the .act is Violated, a ee tor Recover As

aie impli ss als int Il, infra.

. : . e as

ieee

“Bebe Patiiionae: Was One of the Class thy Ret Was,

Passed to Protect, His Right to’ Recover amages |

* for ‘Any, Injury Resulting from: Its —-

oo ee Implied in the Ac}.

In its prior: aoe (Urie- Vv. Thompson; 352 Mo. 211, re

176 S. W. 2d 471),-the Missouri Supreme Court held: +.

“‘Pidintiff alleges ae the omissions ‘of {-defendant caused -

‘his silicosis. Measured by the, featies one of ‘the jomis:

Simons was failure to adjust the sunding. machines, and by

"the demurrer the result of such omigsion is plaintiff's séli-

-epsis” (Italics oyrs}. -In.the present rev few, the Missouri ;

~ Supreme Court did, hot overrule its. prior holdyng “Ne

measured by demurrer to. the. petition and evidence, omis=>~

‘sions- under the. Boiler Inspection Act resulted in Peti-.

. tigner’s s silicosis. -, It held. that Petitioner could not recover

evgn, though this’ were true. - 5

On finding - ‘Of a violation of the act and proximate”

‘cause, Petitioner’ s ‘right to. recover became: fixed’ aS a. mat- «

ter of law. hiss shee!

: The so-called Boiler ‘icecthaa Acti is one he Safety

» Appliance Acts. A violation’ of . such an Act proximately

- causing ‘an injury ‘gives a fight of recovery. In Swinson

v. Chicago, St.P.,.M. & O. Ry. Co:, 294 U. S- 529, 1. ¢. 531,

a S. Ct.°517, this Court held: «‘The Safety: Appliance .

Act-(45.U.-S, ©..A.,; Sec. 1, et seq.) has been liberally con-

-strued so as_to give a right of recovery * for every injury

the pr oximate cause of which. was a failure to te at with. 8

a requirement ‘ef the Act” (Italics ours}.

_ In Gilvary v. Cuyahoga’ Vailey Ry. Co., 292° U. S, 87,

Lie: 61, $4.S.-Cr. 573, l. c. 574, “this Court in discussing the’ :

_ Federal Safety, Appliance’ Méts: said:. “A violation’ of the.

Acts isa. breach of duty. owed to an employee, w hether

he is at the time engaged In interstate ,or intrastate. com-

' “merce.

7 In Moore. v. C.& 0. Ry.-Co.291 U: S* 205, l. ¢. 214,

54 S. Ct. 4025 lsc. 405; it was held: “THe Federal Safety.

: ‘Appliance Acts prescribed duties and, injured. employees. -

-are entifled to repover for injuries sustagned through | the

. breach. of ‘these duties” (Italics ours). :

To the’ same effect ji is Davis V. Wolfe, 363 ww. Ss. 239,

243, 44 S. Ct. 64,66; L. & N. RR. Conet-al. v. Layton, 243 *.

U. S: 617, 37 S.Ct. 456, 457.

~. In'T. .& P. Ry. .Co.-y. Rigsby, 241 U. 3° 9%, 36'S.

= Ct. 482... Foe ‘484, the Court said: “A disregard of the’

* command of the statutes is a “wrongful act, and where: it

' results in damage to one of the class for whose especial ben-—

‘efit the statut was enacted, the right to recover the dam-

aa ages from the party in default is implied, according | to a :

: doctrine = the common law, * * *,”

TIE.

~ ‘The Word “hecideat” in Section 8 of: the Boiler In- %

ispection Act Doas Not.Limit the Duty-under Section 2

to ne Lécomotives ” ‘Safe” trém “Accidental In-

“ So That They May Be Employed Without.”’Peril -

“to Life. or Limb” Solely from ” aur) by Force and |

sh, SoC Violence.” oS

‘The Mi ssourt court did not hold that the language fe

of Section 2 “of: the Boiler Inspection Act reasonably in-’ :

' dicated. -an intention to confine the benefits. of that section:.,

to accidental injury: . The court, to draw this conclusion,

'ooked to the language af Section 8 of the act (45 U. 9..C.:

A., Sec. 32) requiring ‘a written statement to be made +

“in the case of accidents resulting from failure from any’

cause of a locomotive boiler or its appurtenances, result- _

ing in. serious, injury. or death to one or more persons +

ea \ Since Section 2 would be entirely operative with-

outs Section 8. the. latter section cannot dimit” or hee os

%, ea

“9% -° e -.

o “ee: -

Fs the benefits conferred ° on employees by - Section 2 Ht

Ee will be noted that Section 8 only requires . yeports of

. serious accidents frm a failure of a locomotive, boiler or:

its appurtenances. It requires no report to be madé un-

‘Yess there ‘is - (1) an accident, (2) it is serious, (3) it re-

sults from a failure (4) of a- Boiler and appurtenances,

Section 2 places a duty on the railroad as tp the. entire

locomotive,: tender "ana appurtenances. Failure. of a part |

is not- essential to recovery. “Hilly, anpra.- Neither is

“Serious. injury.

_ An almost identical, situation is found in re Claim of.

A, E. Clark, 3% Op.. At: Gen.. 346 ‘(Opinions - of Solicitor.

. General, ‘Dept. of Labor, Apr:, Egger In that opinigns

Attorney General Wickersham Held that the word |‘

juries” In the: first section of the Federal Panne

" Compensation Act was ‘not controlledand narrowed by 2

“use -of the word, “acc idee” in Sections 3, and 4... It was

pointed out that thejsection ‘conferring the right referred

‘broadly to “injuries,” while the werd “accident” was. ~

. only employed in section 3 relating to reports and section |

4. relating to affidavits i case ‘of death:.’ He held tht

an injury which came on by slow and imperceptible de-".

greesd was covered by the a act. A: later case,under that |

act is, in. re Glatm of Willard E. Jewell, July - 28, (1918,

Opinions of Solicitor, Dept. of Labor, “Apr., 1915, p. 261:

It was there pointed out that at the time of thethactment

of the Federal Employees* Compensation ‘Law in 190%, |

uP.

“itis fair to presume that Congress had in mind the fact ©

that under the British Workmen’s Compensation Act, oc-

- Cupational. diseases were not included as the law: was

originally passed. This was due to the particular wording

_ of the law, w hich, required in n ogder to recover that ‘there _

be a. ‘personal injury by accident’ * * +" and those having ©

the preparation of the bill in. charge, ‘could not he pre-

sumed to have heen isnorayt of the fact thi at the term’

* “ ‘ . e < - :

i 3

oe ie . : <a re enn ey

“injured” was broad enough to cov er “all ages of res el

ity arising in-the course of. employ ment.

The 4ederal .Employ ers’ Liability dict and the Boiler:

inupection Act form one act . for - purposes of recoyery

by interstate mene ees. In using the words. “suffering |

injury’ and. * ‘injupy”’ ‘in. the : Federal Employers’ Liability

Act it must likevtise, be presumed that Congress. knew

the distinction between injuries® by accident and injuries’

that cfthe on ‘by -slow degrees. Had it interiddd_ to limit ©

recovery to’ injuries’ by .accident, it. ‘must be présimed

Congress would. have specifically so provided. “Had |

- intended: that the. benefits of the Boiler Inspection fee

were .to. be limited to ‘injuries by- accident, it must. be

presumed Congress would have amended the Federal Em-

, ployers’ Liability. Act or the Boiler scscooe fo Act’ to so

state. = 63 : ; «

5 Seeger Oe

‘The History capil Preamble of the Boiler inspection Act

Are Not to Be Considered in Interpreting the \.

‘Unambiguous Language of Section . ees

| 2ofgthe Act 0. ot

ee Despite its finding. that" under the iiambiguous: lan-

guage of the Boiler Inspection Act, omissions ‘under that.

®act as pleaded, and shown by- the evitence reSulted in peti-'

tioner’s injury., the Missouri Court considered its preamble —

-and history to.reach its conclusion that it was ‘“‘aimed® at"

prpmoting safety from ‘accidental injury, as distinguished

from injury ‘due to the gradual inhalation of; harmful:

- dusts.” ‘In deing- so the Court violated. the cardinal rules

of statutery construction laid dewn by, this Court that the

Purpose of Statutes’as shown by titlé. and history: i 's

immaterial except for the iret or me resolving doubts as

to the meaning of words tised in>the acti ‘case of

>» gr

ambiguity, che gaat Oe ne eae : , °

between the automobile: she was driving and a train:

$i Fairport Pr. & E. R. Co. V. Meredith (292 U. S589,

aes

5 a o4 S. Ct. &26. the “plaintiff sought damages for “personal

*niuries . resulting from a collision at “a railroad crossing -

operated by the railifoad’ company ,, The’ complaint alleged .

a violation of the Safety’ Appliance- Aets in fail@re to”. :-

maintain'an air corinection between the engine and’ ears, -

vand to maintain. and use the power brakes. The jury*

found that the statutory violations were roximate causes:

the injury. * The. state appellate cot

ae On certiorari to’ this ‘court fhe railroad , con.

“tended that the judgment Should be reyérsed because the

_ Safety Appliance Act was intended ony for the protection

° of employees and travellers” upon th railroads. In pass-

ng, thereon. this Court said:

“Very likely’ the primary purpose: in ‘the hind

e of Congress was to protect employées and passengers. ; |

g . So much is. indicated by the. titlek—An act to promote — shes

__ the sdfety of employ ees and travelers upon nee

etc. And this is borne out by the history of the légis-

‘lation. * *.* But we are asked’ to hold that the title

- expresses the sole intént of the act, and this involves

rt affirmec the

* . a, question’ of ‘statutory construction. The title of an

—actandthe history leading up to its adoption, as aids

to statutory construction, are to be resorted to only.

- for the purpose of resolvi ing doubts as to the megning :

of the, words whee in- the act in case of: ambiguity: ae.

; (Italics ours), - “8, | “ss

- In Ter. Pee Ry. Co. y. “Rigsby, 241 U's. 33, 36S, Ct. ee

482, 484, Supra, this court 't_ determined that an intrastate - ee

employee eauld récover | under the Safety Appliance. Act.

even though it was spec ccifically enacted for the benefit

| of employees S engaged in. interstate commerce. -In In & N,

Rd. Co. v. Laytén, 943 U. S. 617, 37 S Ct. 456, it was held -

that while the purpose of passing the, lad requiring auto-

° a _ &

Oty oe eed ; Saag i ' ¢

> Fs Mare ,

e a =

' matie cougars: was to protect those obliged t to go Ses a.

the cars to couple-and uncouple: them, the a@t did not by. -

“express: terms. confine its protectiqn to emplove4s when

$0 engaged: and, that: ‘therefore any, employee intirea asa

’ proximate result af a failure to comply with the act: could, ae

-yecover;, In Davis v. Wolfe, 363 U. S. 239,-44S. Ct! 64, |

this Court announced ‘the rule that regardless of whether

an employee. is. engaged in dan operation in’ Which the’

safety appliances. are specifically designed. to furnish kim

A with protection, he can recover if a failure ¢ to. comply with

the act is the proximate cause of the, injury. ue Swinson >

“WC. St P.M. & O. Ry. Co., 294 U. S.. 529, Se a

| ‘this’ ruling was cited: with approy al. iy ee

In Gemsco, Sak. a2 Walling, 324 v. S. 244° 260, 89 Le:

Ed. ‘921, 933; this court said: pone = eee ee =e

a, a a ee ae

“The plain ‘words and meaning of a statute can-_

not be overcome by a legislative history which,

through: strained processes. of deduction from events

. Of wholly ambiguous significance, may furnish ‘du- .

‘bious bases for infer ence in every direction.” + :

¢ oD ——

“ix Bréthet hood ey Railrond Trainmen v. B. & O. R. Co.,

331 U. So 519, 529; 91 L. Ed. 1646, 1652, this court said:

—— oo

: ‘iPactors of this. type have led to the fvise tile ae

that the-title ofa statute andthe heading of¥a sectiori

.* + cannot limit the plain meaning of the text. For.in- _

terpretative purposes, they are e of use only wherthey—-

___.- shed ligkt oen-some ar ambiguous word or phrase. They |

gre but tools availabie for the resolution. of a doubt.

_But they éannot undo or: Amit that which the text

makes plain.”

, See also Brad} v. Perini’ ‘R. Ass'n Of St. Louis, 303.

MU. Sd 58 S. Ct. 426. - Rear o .

“Rules a oe Interstate Citdaiess Salil Have

; No Bearing on the a eects of the: Act,

K > \ 6

eo The court citea yarious rules promulgated | by: the

Interstate Commerce Commission and concludes, . ‘from .

these rules ‘it is apparent the Interstate Commeree Com-, ie

mission has looked to the safety of the employee as pur- 3

_ posed be. the Act from the standpoint of safety fr om acci-

_ denial injury in ihe operation of trains.” This has no

| bearing on a. construction of the | Actz As this court’ has

~ said, ‘The fact that the Commission has not seen fit to

exercise ‘its authority to the. Pull extent. conferred, has no .

" bearing: upon the construction of the ‘act delegating the

power.” ‘Napier ¥. Atlantic Coast. Line R. Co. ; 272 “VU, 2.

. 605: 613, ATS: Cty 207; 210, ae:

ee = oe

‘The Federal Employers’ Liability ‘Act. and tka Boiler

Inspection -Act:Are in Pari Materia and Violation of

- the Latter. Constitutes “Negligence” under the Former

for Which an Interstate Employee “Suffering Injury”

| May Recover Damages. <

° °

After sais out ‘the ‘pleadings and facts in evidence

sufficient _to support a finding that petitioner’s silicosis |

—resulted from’ negligence as weil as statutory omis-

sions in ‘the. care and maintenance of the sanding ap-

paratus and the floors of the cabs of the locomotives, |

while using mine tailings containing 97°. free "silicia in |

: sanders and on roadbeds, the Supreme Court of ‘Missourt

. declared that, “negligence . is not the basis for liability

under the Boiler Inspection Act” because it“ —, upon:

the cartier an ‘iaabates and. continuing duty.’

9 Ce re Bat

28 oe

zz: “2

: - Baking: the above 4s its guide,.the court ruled. further

‘that the opinions of courts upholding recovery for silicosis,

’ for nég igence under .the Federal Employers’ Liability .

Act were\jnapplicable. One of the fallacies of: such hold--

ing lies’ in\ considering* the} case as though the Federal

‘ Employers’ Wability Act and the Federal Boiler Inspection

. Act provide sey arate and independent rights and remedies.”

. While the Federal Boiler Inspection Act imposes an

: _abso)ute duty ake the. employer, which supersedes its:

common law duty under the Federal Employers’ I Liability .,

‘Act,sit makes no pro sions for the nature an& incidents of

the remedy. a Cuyahoga Valley. R. Co.,-292 U. S.

57, 61, 62, 54S. Ct. 573\574, 475; Moore v. C. & O. Ry. Co.,

291 U. S. 205, 54 S: ct 402

'S. Fe Ry..Co., 298 U. S.\141, 146, et-seq., 56 S. Ch 715;

Breisch v. Central R.-of N.V., 312 U..S. 484, 85, L. Ed. 964. .

When: a railroad, br eaches a duty: tp an intr astate em-

< ee under.a F ederal Safety. ppliance Act, the nature

. and incidents of the remedy ar eft'to the law of the state’

02, 406; Tipton V. Atchison, T..&

‘where the cause of action ard€e\and the Federal Act is ii

in pari materia with the state law. Authorities, supra:

‘Had petitioner been injuréd in int astate commerce, his

Tight to. ‘recovery would Fave been. urtder the\Workmen’s

Compensation Law of the State of Missi Uri for Yigled com-

pensation rather than damages,” the Violation .of the act,

would become immaterial and _the nature any extent of thé

‘injury the determining factor (Chap. 29, 'R. S. &).

Tipton v. A., T. & S. F. Ry. ‘Co., Supra.: Sine \ petitioner -

was engaged in interstate commerce, his excluX e right

‘of action is provided by ‘the Federal Employers iability

Act. Moore v:C.& O. sieht 291 U.S. 205 M16, 5A\S. Ct

402, 406. A :

* y °;

“suffering injury” Gable entitled to ‘dasaiias

“such injury, resulting in. whole or in part” from “‘neg\-

‘tm : be

Sef

‘ ‘ ° e ov ; 3 .

3 te - 29 pS cgraales io ae

. . a >

‘ligence” of’ the. carrier or-- Mits agents. If the *' ‘injury” Tre-

sults in whole’ or in part: from a violation of a Federal’

Safety Appuiance Act,. the Federal Employers’ ‘Liability:

Act. draws to it.the provisions of that act so. that both are e

“to. be read in pari materia and becotfie one “act for purpoer det

“of construetion. and applicatian, -

By ‘Section 2 of the Boilér tisdnatilici att: a carrier is

“bound absolutely to furnish what before, under t om--

mon law, it was its duty. to exercise ordinary ¢ care to Pro- ,

yide.” B&Q. R. Co. v. Groeger, 266U. S. 521, 528, 45 Ss.

I= = =

Ct. 169, 1. c° 172. A violat, ion ‘of this absolute duty becomes . ES

“negligefice,” sometimes called “negligence per se,’ within.

—ther tacaning of the Aare ‘any defect or insufficiency due _

to its negligence ix cars éngines, appliances,” etc., in the

Wagner, 241 U. Ss. 476, 36 S. Ct. 626, °630;

O. Ry. Co., 291 U. S. 205, 210, 216, 54 S. Ce

Pass Ry. Co..

Federal “eng Liability Act. Sdn Antonio &. “Aransas =

_M oore Vv

402, 404, 406: Lilly v. Grand Trunk R. Co., 317 U.S. 480, 87, x

L. Ed. $11; McCarthy -v-Pehn. R. Co.; (C02A: 1/156 'P:\ |

2d 877, 879-880. -Sihce peviticnete extiustve right of action” ‘

angie tinder the’ Federal Employers’ ! Liabilit¥ Act and the —

pitect of the Boiler Inspection. Act is to.amend ‘the F ederal

“‘Employers’ Liability Act so. that a violation of an absolute |

duty _imposed by “the latter act becomes “negligence”

within. ‘the meaning of the former act, petitioner’s right of.

recovery for’ the particular | injuries ‘sustained must be .-

_ governed by the former act. ‘The question f -pregented | a: .

not whether the Boiler Inspection Act, provides a right of

recovery for “ injury due to the gradual inhalation of harm-

ful dusts” but whether.the Federal Employers’ Liability

Act provides.a right of recovery to! an interstate employee.

for such injury caused by the bad order condition of the ,

cab floors and the: sanding equipment. _

If that. question is answered. in the affirmative, peti-

tioner may recover “since his as are proximately

« ae

* ,

- a oe .

“See

@ e

icelai by respon egligerice (violations of the Boiler

“Inspection Act” a / : Oe niree

oom The words ‘ ‘suffer injury’ \ dnd * “injury” as used inthe —

.-Féderal Empioyers’ Liability- Act are. unlimited and em-—

_ brace any type of iejuty B. & O. R. C%. v. Branson, (Md, )

"98 Atl. 225, 229; -K. C. S. Ry. Co. Nv. Chandler, (Tex, Civ...

App.) '192’S. W. 2d 304, 310. .

Ac liberal interpretation: i is to be given “the. Federal

-Bnipioyers Liability. Act because it was: designed to en-

| large gan not restrict the rights or. injured workmen.

Jamison et al.-v. Encarnacion, 281 U. S, 635, 650, 50, S. Ct. /

440, 442. ;

injuries. Rowsie v. Thomas F. Ja: ‘kson, 196 Atl. 617, 1. ¢.

618° Marsh vy, Industrial Commission of Calif., (217 Calif. -

338, 18 Pac. 2d 933, 936; Wurst v. fimerican Car & Foundry:

Co., (Mie. App.) 103 S. W. 2¢ 6,16. e ;

mitted recovery tinder the Federal Eniployers’ Liability

Act for injuries, other than those * from: “accidental

orce or violence.” Baltimore ‘and O. R. Co.

ranson,-128 “Md. 678:~98 Atl. 229- (Paint. Poisoning);

‘fe ‘in the sense that the injury is “attended “i

|Sadowski v. LoagTsland R. Co., 292 N. Y. 448, 55.N. E.

2d ‘497. (Silicosis) ; Atl. Coast Lines: Wheeler, ‘147 <1;

132 S. E517 (Lead Poisoning); c., x. 1& P. Ry.

Cheek, 105 Okla. 91, 231:Pac. 1078. (Creosote ee: ?

Kansas City So: Ry. Co. v.\Chandler; (Tex. Civ. App.) -

192 S. W. 2d 304° (repeated miMer: traumas); Shelton -v.

Thompson, 148 F. 2d 1, 157 F. 2d 09 ( Carbon encase:

ee Poisoning).

“Silicosis and pneumoconiosis are. ariiformnty held to be

The Missouri court implipdly ‘concedes’ that under: °

- the above cases silicosis is embraced, within-the. word °

“injury” as: used in the Federal Employers’ Liability Act,

-but refuses to follow them because they involve, common,

. 4 x .* 5] ; ia,

. 1 5 “ \ “

Oe . =t* ‘ }

* : ax a . * ”

> - x < « s \ : :

law negligence rather than negligence per se, a§ a result ~~

_.- of. violation of a statutory duty. ee | ~f

~\ ; : eine aay :

pee eae VE. |

The Petition.on First bpeal” ead on Ge Present Ap- |

~ peal Stated and the Evidence Disclosed Facts. b

ficient to\Authorize a Recovery for Negligence. under

jederal Employers’ Liability Act." E

> Eee on prior Wabeal: the ‘Supreme Court’ of Missouri chin

sidered the sufficiency: 6f the. allegations | of plaintiff Ss.

petition to. state a bcay of, action - for negligence under — 3

the Federal Employers’ Liability Act (Urie v. Thompson, :

_ tion - the Missouri Court said (l- c. 474, 475) “*-* * For

the purposes of -the demurrer it stands: admitted that

7. Plaintiff did so. acquire silicosis.” How ‘ever, it held, “We.

- do not ‘think it would bgreasonable ta hold, under the facts

_ admitted: by ‘the | ‘demurrer, that -defendant should have

"352 Mo. 211, 176.S. W. 2d 471). In passing on.that ques- __

“anticipated plaintiff’ s injury, and we, ‘therefore, rule that | -

. the petition ‘does not state facts sufficient to constitute a.,

cause of action. for. negligence under the Federal Em-

held that a cause of action. for violation of the Bailer

Inspection Act was stated and made he following order,

“The ‘judgment ‘should ‘be’ reversed arid’ the . cause

“remanded with ‘direction to set aside. the order sustaining.

F the ‘demurrer and dismissing the petition, “and it is so- =

ordered. so Since. that order’ did, -not constitute a final.

judgment, ‘this. is petitioner’s first opportunity: to raise «-

the question in this court. McComb- Vv.) ‘County Commis- | |

sioners, 91 U.S. 1. 23 L. Ed. 185; Louisiana Navigation Co.

v. Oyster Commission of Louisiana, 226 U: S. 99, 33'S. sage

i RR

Since petitioniér na set out. the basic facts bearing:

on négligence under the Federal mploy ers’ Liability Act

in his petition on first appeal, the ruling of the Supreme

Court of :Missouri on the question of: recovery for ‘negli-.

‘gence under the Federal Employers’. Liability Act became

the “law of the case” and petitioner .and the ‘trial “court

"were bound by the opinion | and in conformity, to it, peti-

~~ tioner and. the court: were. limited’ to submitting the case.

on, vidlations of - the Boiler’ Inspection Act. Creason v..

Harding, 444 Mo.. 452, 126 S. W. 2d 1179, 1183, 1184; Smith,

v. . Smith, . Mo.App.) 192 S. W. 2d 691, 697. |

- Although petitioner did: net havea right of review

? a this court on, prior appeal, this court, has not logy it its

jurisdiction to review the holding’ on that appeal,

ie Lovisiana Navigation ‘Company v. Oyster’ Commission be

‘Louisiana, 226 U.S. 99, 33.8. Ct..78, the precise’ question

was ‘irivolved. ‘The trial cotrt had. sustained a demurrer ’

. to ‘the. _ petition. ‘The Supreme | Court of Louisiana. on

oe appeal held 'that - the petition stated a cause of action-as—

e ‘to certaip. 4ands, but. no. tause of ‘action as to. other lahd,

and the/ case was’ remanded to the trial court: Plaintiff

sued out a writ of error to this court and. suggested that

‘the right to rév iew by this court would bé.lost’ as to that

_ Court said was without merit if this court did not review

‘the case because the opinion would become the. law of

the‘ case and binding. upon the Louisiana courts. In

passifig thereon this court said: ,

“The: rule which ‘excludes. ier right to review

questions arising in=.cause depending-in a state court

until -a final’ judgment ;is° “rendered ‘by such court in-

volves as a:.necessary correlative the: power and: the~.

| duty of this court when a final judgment in form is °

rendered: and the cause is brought here for review, to’

‘consider and -pass.upon all” the Federal controversies

ae the cause, irrespective of how far it may. be thats

;

P * as : 33. o3 S ~~ ae ; :

‘ | | _ . he anes ; . a ‘ay 7)

by the: ‘state law such questions were’ concluded ‘during

the litigation, and before a final judgment’ susceptible _

of revicwy heie was rendered. Chesapeake: &:O. R.

Co. v.. McCabe, 213 U.S. 207, 215, 53 L. Ed.: 765, 768,

29. Sup: [Ct Rep. 430” (Italics ours}:

| _' The petition. on: first appeal’ specifically termed he :

acts : alleged as . “negligent. « ft Ps Wy

“ings, -the facts in- evidence as set out in the opinion ‘i o

the findings required, particularly - by, Respondent's jn

struction R (R. 13-14) were sufficient to. place in issue

and support a finding that petitioner’ s silicosis’ resulted

at least in part from resporident’s negligence even thought

. they are not fpecifically. called “négligent.”

"s+. The petition ‘on prver appeal alleged that over, a}.

bieriod of years. t e- ‘respondent used. in the sanding de- KA

vices: on its locomotives a sand: materiai containing ae}:

very. Kigh. percentage | ‘of silica, and that the sanders w ere

- in such condition ‘that when put in operation’ excessive |

and ‘unnecessary. quantities of .sand would’ fregquently 7

« ‘come from the sanding devices on. the rails and’ be ground

to dust and. “dust containing ‘such. usual! ‘and’ unysual |

quantities. of silicon, ‘dioxide. would come from ‘such use. \

and into thé locomotives- where’ plaintiff worked and

', frequently of- unusual quantity and such’ quantity would —

: ~be breathed by. him * * * and-that’ over a of time .

such breathing éf such dust was dangerous +. the health

. and life and would. likely. ‘cause. to plaintiff. the condition

"resulting to plaintiff” (R. 44). .The amended petition al-

+s leged additionally that. the sanding devices were worn, out

of adjustment, loose and broken and thatthe. decks of. the .

locomotives were old, worn, loose, bent, warped and con- +

-- tained. open’ spaces, and. that silica. sand: used on the road-

beds was also drawn into the eab (Rt. 2.4). _ The allega-

‘tions and evidence that such conditions were - permitted to

ie. exist over a Re riod. Oferears | clearly coristitufes such com-

vw:

‘4

oe weer Point Vil herein. In Sadowski VL: I. R. Co., 292

CoN ery Was

_s + Therior-

- the. Boiler

ant ‘should —

> Xe =! e , ? = % «6 oa

un \ ah « > * i ee 5 2) ” = .

We Ns J od. . ty,

“ . x : . 4s . .

“moti law negligence as will authorize a necove

the Federal Employers’ Liability Act.

‘and” Federal «Court decisions > whieh. authorize gecovery

‘under Waele Employers’ ‘Liability “Act for exposure

“to potso us and noxious, substances have: been. set out

-.-

-under

. 448, 55 N. E. 24 497; reqpvery. under."the act was

permigty for silicosis. Tn Shelton v , Thompson, 148 -F.

2a. i: 157. F.2d 709, recovery was, ermitied for carbori

Bila soisoning.. ‘In. B. & Oo. KR. Co. Ve Branson, 128 -

~ Md~ 678. eae 295. ‘recovery’ Wad ‘allowed for paint .

_.boisoning, “In.G, R. 1 & PL v. Cheek, 105 Okla." 91,

creosote poisoning was made the basis. for recovery and

in Shelton wv. Thompson, ¥48 F. 2d 1: -157,F. 2d 709, re-

allowed for, "carbon monoxide poisoning. — ,

Sginion. in thiswease heldvhat even though

unusual’ quantities of silica dust was, drawn into the cabs

over a per iod of years causing’ silicosis this could not be

made the’ basis of, recovery “because it : would not be

reasonable to hold * *-*. that deféndant should have ‘an-

a sis ages plaintiff’ s injury. * The last opinion in Sadowski

eg Ee 2 Co., supra, was not reported at that time. The :

present -opinjon would ‘seem by inference to ov errule the” ;

holding ov the prior appeal as to ‘commen law neyligence

as ‘well as ' ding: as tO recovery, for violations of -

ection pT Se | ss recognizes . that recovery -

under the Sadowski case because “defend-

ave kakén precaution), to prevent, plaintiff

| nsequenc es ‘which ° might” reasonably: be an-

ticipdted from -being tequired to Work “in more ‘er less Of: ..

was. Authors

from

a cloud, of silica dust -which enveloped. him and which he

“nécessarily: inhaled” ae Sy.)

There is no less reason in the shetiens case for holding

» that petitioner's condition might reasonably be antici-

_ pated from being required to’ work in an enginé. ‘cab. in .

silica dust which he negessarily RIES. “The: court In the -

Numbrous state 3

“~~

‘

present épinion, however, said.the Sadowski case was not Ses

Praag es in determining : ‘whether aa socalled. oecupational wt 8

‘disease, as distinguished from aceidental injurygis-awithin, ee

ti protection. designed and. could be wtrordéd urider the. _ o

Bojler Inspection F:, Sica res 5 ee ee

< . This -court..should* take pjurisdiction of | this case td

etbneile the first. Missouri opinion with the cphflicting

“opinjons from other state. and federal:-courts: Under sthé ie

' facts ‘as alleged in ‘both petitions, respondent. should’ be.

charged: with reasonably anticipating that petitioner ‘might »

‘be injured from being required to inhale quantities of high

: content silita dust . used byathém in sanders and on the Te

“roadbed; and whic was drawn into his ‘working: place - 7

-, through. unnecessary openings” “where he ‘was’ required to poe

‘inhale it over.a ‘period of years. \. aS ‘en nee

‘The opinion in principle is in confliet with the. recent

opinion of this court in Li llie V: Thompson, 92%. Ed. Ad:

_ Op. 115, where it was held that a railroad’ which. employ ed

a ‘young woman tele 1, operator ina frame building, in

an isolated part of its - yards, might reasonably anticipate .

that she- would be assaulted by third parties. nok etiployed :

by the railroad. —. Tae eh SS: oe eee tae

Wherefore, petitioner respectfully’ ‘submits Be’ cer-

“tiorari should be granted to the end that the opinjon of the

-, Supreme Court of Missouri on questions involving the

constfyction and administration of the’ Federal Employers’

Liability Act and Safety’ Appliance Acts be harmonizec,

with the. d&isions of this eourt. - : ray

. hie: -Lours®N, WotLr, ab ae i a

: i Joplin National Bank Building, he “

ee i” - « " Joplin,- Missouri, e es .

7 | | at for Petitioner. oe

dance L. ‘Trusty, | sf met LE :

Guy W. Green, een '% eee ;

734 Lathrop Building, : SA sae? Gg ee |

Kansas City, Missouri, ee ;

O} Counsel. e are

= ,

APPENDIX, >

Tag FEDERAL EMPLoyers’ Liasnuaty Act

”%

” ‘The pertinent provisions of the Federal Employers” -

Liability Act (45 U. = &. A, Sec. 51, et seq.) are as. fol-

lofvs:

‘3

” AE

ee $1. LIABILITY OF ‘CoMMON CARRIERS BY Rar-

ROAD, IN INTERSTATE” OR. Foreign: COMMERCE, FoR IN-

JURIES. TO EMPLOYEES: FROM NEGLIGENCE: DEwnrri0n

OF EMPLOYEES ;

Every tect carrier by reilrahd while.‘ engaging

in commerce_between any of the several states * * *

shall be liable in damages to any person suffering

oO. injury while he is emplo¥ed by such carrier in such

commerce, or, in case of the death of such, employee,

to his or her personal representative, for the henefit _

of the suiving widew or husband and children of ;

such employee: * * * for such injury or death result-

ing in whole or in part from the negligence of any

of the officers, agents, or employdes of such carrier, or

by reason of any defect, or insufficiency, due, to its

-negligence, in its cars, engines, appliances, machinery,

track, roadbed, works, boats, “wharves, or other equip- |

ment. oe eth: Pee

"Any employee of -a carrier, any part of whose

duties as such employee shall be th furtherance of

interstate or foreign commerce; or shall, in any. way,

directly” or closely and. substantially, affect such’ com-

_ merce as above set forth shall, for the pufposes of this \ _

chapter, be considered, as entitled tg the benefits of

this chapter. Apr. 22, 1908, C. 149, Sec. 1, 35. Stat.

_ 65; Aug. 11, 1939, c. 685, Sec. 1, 3 Stat. 1404.

ee se

; 37 OY. - 7 ao

Sec. 53. Pesiebunemes NEGL IGENCE; - DIMINUTION

OF F DAMAGES * ee oi ” ;

In any actions hereafter brought dininat any such.

; common carrier’ by railroad under or by virtue of any

of\ the provisions of this-chapter to recover damages for

personal injuries” to~att employee, or where such_in-

juries have resulted in hisdeath, the fact that the’

employee may have been guilty of contributory neéeg- -

_, ligence shall not bar a recovery, but the damages shall

be diminished by the jury in proportion to the anfount

of négligence attributable . to such employee; PRO-

VIDED, That no such’ employee who may be injured

or killéd shall be held to have been guilty of con-

of such common carrier ef any statute enacted for-the

safety of employees contributed: to the injury or death .

of such employee. _ Apr. 22, 1908, ¢. 149, Sec. 3, 39, Stat.

* 66. -

Sec. 56.; AcTIONS: ‘LeYiration; CONCURRENT Junis-

DICTION OF Courts; REMOVAL OF Case IN STATE COURT

No action shall be maintained under ‘this chapter’

“unless commenced .within three years from the day

the cauSe of action accrued-~ | | )

The pertinent prov isions of the Federal Safety Ap-

pliance Act, usually known ‘as the Boiler pean Act

(8 U.S. L. A., Sec. 23 et seq.) are as reosweres

-N

Sec.-23. - Ye OF UNSAFE ou eonnereN AND Appur-

; TENANCES ur NLAWFUL; INSPECTION ‘AND Tests

ae shall be unlawful for anv carrier to use or per-

‘mit to:be used on its line any locomotive unless said —

“. Yocomotive, its boiler, tender, and all parts and appur-

“tenances. thereof are in. proper condition and safe to

operate in‘ the service to which the same are put, that -

the same may be employed in the active service of such |

carrier W ihout unnecessary v peril to life or, limb, and

ory

SS ti - ae 38 - Ste 7

. } : ‘ : °

. , : be ry

unless said locomotive, iin etl, tender, and all parts

. and appurtenances. thereof have been inspected from .

time to time in“accordance with the provisions of see-. -

tions, 28, 29, 30, and 32-of this title: and.are able to:

withstand such test or tests as may. be prescribed in’ -

e the rules -and - regulations hereinafter provided: for. |

Feb. 17, 1911, ¢. 103, Sec. 2, 36 Stat.:913; Mar. 4, 1915, °

+e. 169, Sec.:1, 38 Stat. 1192; June 7 1, 1924, :c¢ 355, Sec. 2, -

wd 43 Stat. 659. ; ; | . ae paw

... Sec. 32: “Report BY CARRIER TO ‘DIRECTOR As a

ACCIDENT: PRESERVATION OF DISABLED PARTS; INVESTIGA-. a

TION AND REPORT THEREUPON : -

In the case.of accident tesultinggrom failure from oi

any cause of a locomotive boiler.or its appurtenances, _

resulting in serious injury or death to one or more

' persons, a statement forthwith must be made in writ

ing of the faet of suoh accident, by-the carrier owning

or operating said locomotive,. to’ the director of loco:

motive inspection. Whereupon the facts. concerning

J such accident shalk be investigated by ‘the director of P

locomotive inspection or one of his assistants, -or such |

inspector as the director of locomotive inspection may |. °

designate for that purpose. And where the locomotive |

is disabled to the extent that it cannot be run. by its .

own steam, the part or.parts affected by the said: acci- |

dent shall be preserved by Said carrier,intact, so far as)

possibJe, witheat hindrance or ‘interference to traffic...

until after, said inspection. The director of locomotive

ee) inspectson or an assistant or the designated inspector

making the investigation shall examine or, cause to”

be examined thoroughly the boilér- or part affected;

making full and detailed report ‘of the cause of the

accident to the director of locomotive inspection. Feb.

17, 1911, c. 103; Sec. 8, 36 Brat. 916; Apr. 22, 1940, c..124,

Sec. 1, 54 aa 148. :

Pertinent rules of the Interstate Commérce. Commis-

sion.

“:. 4 8

101. The railroad company will be held respén-

sible for the general design, construction, and main-

tenance of locomot tives and tenders under its control.

116 (a) ‘Cabs shall be securely attached or braced

and maintained in ® safe and.suitable condition for

‘service. Cab. windows shall be so located and main-

tained that the enginemen may havea clear view of

track and signals from their usual and proper - pati

tions in the.cab. | | . 3 a te

:- Te. Sanders. —Locomotives shall -be equipped ,

oe wit. proper sanding apparatus, which shall be main-

tained in-safe and suitable condition for service, and

tested before each trip., Sand pipes must be securely

fastened in line with the rails.

‘Congressional debates: on.the Boiler Inspection Law...

(Cong. R. Vol. 46, part 1, P- 72 29, voenery: 10, 1911)

: “Mr. Cummins: Mr. President, inasmuch as I.

happened . to “be the chairman of the subcommittee —

which reported the bill and am therefore quite famil-

iar with that part of it. * * * 7

* * * There is a very marked difference between

. rendering a boiler in use unlawful, ‘Subject to_prose-__

~cution before a grand jury, and the inspection’ which:

@e provided for in Section’5. * * * .

_ Mr. Cummins: The Senator from Idaho totally,

I think, misconceives the operation. of the statute, It

consists of: two parts. First, it dec! ares that it shal

be unlawful for any common carrier te: use'a boiler

unless it be in a safe condition; That is a general ee.

ligation resting upon the’railroad companies entirely |

distinct from any inspection that may ever occur.

The’ second part: of the bill creates a system of —

inspection under the chie specto distri - ;

! pect 3 . inspector and s oe ~3

Rea. ieee

spectors. and the rules and regulations Ww shich are pro-

vided for’in Section 5 are those which relate to the in-

“spection that shal] be made by the railroad companies

themselves of their.boilers. This is simply. a provision

from which it ishoped there will follow greater, care

"upon the part of the railroad companies in. the inspec-

‘tion of their boilers, awd that ‘there will be-some uni-"

formity in the rufes relating to those inspectors. But

Section 2 would-be entirely operative if no part of the

: bull: which follows Section 2 Ww ere enacted”

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