Petition for Writ of Certiorari — Webb v. Illinois Central Railroad

LIBRARY | wee

od MAR &. . }!

SUPREME = COURT, U. Ua

7 | HAROLD 8, WILLEY, Clerk |

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C. ie

- SR

- Supreme Court f te United Sates

-Ocrosrn TERM, me 198

0. Ret a

JOHN. W. WEBB, eee

| Petitioner,

. v8. ° d

ILLINOIS CENTRAL RATLROAD COMPANY, ta

. Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT. 7

Cari L. YarEcer, —

sas Baker Building,

} Minneapolis 2, Minnesota,

: . * " Attorney for Petitidner.

Rosert J, RaFFeERTY, sry ‘ yee

Chicago, Illinois,

_ Of Counsel. ©

Z

. a’. =

"INDEX.

‘ | 1 | $F PAGE

PRONE: TIIOW Sis ticsnenici cnet inctenven Rierscvcistinnniegeccssonivaivnn aw arearatn ¥ a

Jurisdiction Satie pines TLE a cata I aeons sidan isaeelbcubpinn oto ‘2:

| Questions Presented siccasatkie cicteenie Snes pledeiiibmiaacasmiiesinne » iat

Statutes. Involved saesesecensonsusssnssnvessessesuvaiesssnenscsessnnessnsnesneasons a

Statement of the Case ...icoccccccesess ssdesennessnnsenanecee is OE swe

Reasons For Granting Writ . Bee Rita ae EATER a

Appendix A, Opinion of Circuit Court of Aguile tor

the Seventh Cireuit Mpkidcgendibskeebinbahdens eoesasensantencasonsencncees meta

Appendix B, Judgment Ba oe hs : ESPEN ENTS oe 18.

Appendix C, Order Denying Rehearing . IK tiles ieee

| Appendix D, Statute re Certiorari | OTAREN Wie ce ion 19°

Appendix EK, Pertinent Pfovisions, Federal sa a |

I I I nai Sicici cocina cnssctchicansciunchnapdocnedapiesabiens 19

‘Appendix F, Statute, Trial Court Jurisdiction seinitaiesais OM

Crrations. : a

Bailey v. Central, Vermont’ R. Co., 319 U.S, 350 sereeeeere 8,8

Blair v: B. & O. BR. Co., 323 U..S.,600 wvnntinnnnnnenne — 6

: Brown v, Western Ry. of Alabama, 338 U.S. 294 sindgivnids 8

Ellis v. Union P. B. Co., 329 U.S. 649 o.sscsssisssnysenegeessesee Sa

Lavender vjKurn, gt” Ee Se a 6, .: if

Myers v. Reading Be i Fe IT sess inciseerecnsssas 6,9

‘Southern R: Go. v. Puckett; 244 U.S. 571 cesses 8

Spotts v. B. & O. Co. 102 F. (2d) 160 vescsssisssssnsseeseesne 9

| at ee is | _ ‘PAGE

Stone v, N: Y. C. & St. L. R. Co., 344 U.S. 407 ..3............ 6

Tenpant v. Peoria & P. U. R. Co,, 321 0. “Cerne

-— ‘MPiller v.-Atlantic C. L. R. Co. 318 U. 8. 84 Scenes oe

| Wilkerson v. McCarthy, 336 U.S. 58 wloccsssssssesensenaee 6,8

OTHER REFERENCES.

7th‘Amendment, U. S. Constitution ...:cjcicseesssese way 6

ee ie eS Ea Oe piWecndites fs 19

( 00:66 6 ........ MRT. ABRATS sense ToeesBi\Dy 19

pre G32 ae eles Seem Soman Te

os |

4} V4 . J

| IN THE

SY PREME COURT OF THE UNITED STATES

- - OcroBer Term, 1955.

-

No...

‘JOHN W. WEBB,

; Petitioner,

vs. .

ILLINOIS CENTRAL RAILROAD COMPANY.

_ Respondent.

vf

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH OmECUrT.

| Petitioner’ respectfully petitions this Honorable Court

to grant the Writ of Certiorari to review the decision and

: judgment of the United States Court of Appeals for the

‘Seventh Circuit in the above case. :

| Dovdaeer AND OPINION OF THE COURTS

Ra BELOW. ae

The judgment of the ‘United States | District Court for?

_the Northern District of Illinois, Eastern Division, was

entered February 23, 1955, and.is not reported but is

printed in the record filed with the clerk of the’ Court

of Appeals below. (R: 122) _ 7

The opinion of the United States Court of ‘peiials for

the Seventh Circuit, reversing said. judgment, was filed

December 29, 1955, and is not yet reported. but is set

forth in the — hereto. (App. A.)

eee eee

STATEMENT OF GROUNDS ON WHICH JURIS.

DICTION OF THIS COURT I8 INVOKED.

Date of Judgment to be re Maas: Descniier: 29, 1955, |

(App. B), as amended by order denying rehearing Janu-—

ary 30, 1956 (App. C). |

Jurisdiction of this Court is invoked under 28 U. S$

Code, Section 1254 (1) (App. D). —

QUESTIONS PRESENTED FOR aes

Question I. er

P order. to prevail under the Federal Employers’ Lia-

bility Act, need a plaintiff negate all possible: inferences

of negligence of persons other than the defendant and

- prove his casegby a standard of “probabilities”? — :

Question II.

Does a Court ‘of Appeals invade the province of a jury

and violate the scope of appellate review in a Federal

Employers’ Liability . ‘Act case by setting aside an em--

ployee’s jury verdict, ‘and judgment and directing. entry

of final judgment. for the railroad when the record shows. 1

that:

The seein stepped on a large clinker buried

near a switch stand in a soft, new roadbed constructed .

_ by the railroad about three weeks before the accident;

the railroad’s firemen cleaned their fireboxes at. this

- location; the employee’s duties. reauired him to work. -

on the ground at this point and the employee and the _

employer's witnesses testified that a clinker .as de-—

scribed made for bad footing and an unsafe place to

work? —

as cual a e ee

STATUTES INVOLVED.

. .

a

28 U..S. Code, See. 1254 (1), Appendix D.

45.U. 8. Code, See. 51, Appendix BE.

45 U.S S. Code, See: 56, Appendix F,

STATEMENT OF THE case.

ae ee

The Material Facts.

_ This action was brought by Petitioner, a brakeman in

the employ of Respondent, under the Federal Kmployers’

Liability Act, 45 U.S. Code, Sees, 51-60, to recover damages .

_ for injuries suffered as a result of the alleged negligence of

his employer. (R. 3-5) +

°.

Around the middle of June, 1952, extensive repairs, had.

been made by Respondent’ on its house track at Mount -;

Olive, Illinois. (R. 68) This work included raising the

rail and‘ ties about 5 inches above their previous level

and the use of about 15 cubic yards: of new cinder and .

chat ballast. (R.-72, 73) ‘During the repairs, the house: -

3 track was closed for use by the trainmen. (R. 67). .

About three weeks after the ' repair work: (July 2 , 1952):

_ when uncoupling a car on this house track, Petitioner ob- -

served a leaking grain car. He turned around to go to |

the caboose to get some waste to use as a plug ea

- stepped on a large buried clinker. ‘He had looked at the

ground before stepping and it was level, locked like good

footing outside of. being a‘little loose. (R . 43) Wher he

- stepped on’ the clinker his foot turned, he-was thrown off

' balance and his leg doubled under him’ and he sustained

injyries. (R.. 14) After the accident he saw the clinker

—4—

with a hole right by its side. (R. 44) It was’ partially»

kicked .out of the cinders. (R. 61) It was about the. size

of his fist. (R. 14) | pan

Petitioner, a man with 25° years railroad experience

wt a former section hand, testified that it is not a cus-

iry practice to use clinkers the size of a man’s fist

railroad road bed. They don’t pack down and give _-

nica footing. (R. 44) Lester Rector, defendant’s section -

foreman, who had charge of the Mount Olive track rais-

_ing: and new ballasting, said that such a large clinkes

* would ‘not belong in a road: bed near a switch stand. (R.

77) John, Brosnahan, defendant’s track supervisor, testi-

fied that one purpose of ballast is to provide safe.footing:

for trainmen. He stated that the presence of a clinker as °,

- described and Jocated would represent an unsafe place to —

work. -(R. 87) The cinders were not sereened before being .

used in the new roadbed. .(R. 77) ‘The site of the accident

was the only place for Respondent’ 8 firemensto clean their |

fire. boxes at Mount Olive. (R. 59) - ,

_ Webb’s ‘statement ken hy Respondent’s claini agent |

was admitted in by agreement. It.states in part: -

4] soil one step and stepped on a. cinder buried jin

the loose cinders about a. foot feom the end of the

ties. When I stepped on this cinder it threw te off

balance, . caused me to fall and. I injured my left Knee

as I fell. This happened about’ 15 feet south of the

house ‘track switch onthe east side of the house

track. This track had: been worked on shortly. befcre

- this hy the trackmen and the cinders were stirred up

and loose and this large cinder about six inches in .

circumference was -buried in the loose cinders around |

it so that ‘it was not discernible from the rest of the

‘small loose cinders. It looked like the surface was ©

-level and good enough footing but this cinder beigg

solid in the loose cinders caused my fo@$ to turn as I ©

®»

le alin eae

“~

~.

. sepped on it, tained. my foot and caused me ‘to fall; |

80 that, I injured the ‘partilage in my. knee_as I felJ.*"

“(R. Le |

the applicable statute (45 US .C. 51) dente

“Etery. common, carrier by railroad * * * shall be -

fiable ‘in damages to any person suffering injury

~—

- * while he is employed by such carrier * * *.for such

injury * * ‘resulting * * * by reason of any defect or

insufficiency due to its negligence in its * * * "track,

roadbed ¢ $28 or other equipment.” —

The- ‘plaintiff in his complaint charged that i aiid

failed to use ordinary care to furnish him with a rea-

sonably safe place to work..

The jury returned a verdict for petitioner | fn the sum ©

of $15,000.00. J udgment was entered on the verdict.

Motions for new trial ‘and for judgment notwithstand-

with directions to.enter judgment for respondent. rede

B) Petition for rehéaring was denied (App. ©).

nr te we papas

Basis.for Federal Jurisdiction in District: Court.

Jurisdiction in .the District Court, the court of first

instance, was based: \ upon the provisions of 45 U. S. Code,

Section 56. (App. | 4 ee : > :

&. neP

» ing the verdict were denied. (R. 128). On appeal, the ie

‘Court of 2Appeals for’ the Seventh Circuit “reversed the

“judgment and remanded the case to the District ‘Court

REASONS FOR GRANTING THE WRIT.

_ 1. The decision - of the Cour: of Appeals constituted an

@ ~ <> invasion of the province of the jury contfary to the.

Seventh Amendment to the Constitution of the United

States. ~“. a | |

In recent years this: Court has, on many occasions, ex-

pressed itself clearly regarding the respective functions

of the Court and jury, and the scope of appellate review

in cases srising under the Federal Employers’ Liability

Act. ¢ ie |

These Bistisinis include Tiller vy. Atlantic Coast Line’

R. Co., 318 S. 54 (1942) ; ‘Bailey v. Central Vermont Ry.

* @o.; 319 U.S (1942);.Tennant v. Peoria & P.U. Ry.

Co., 321 US 29 (1943); Blair v.-Baltimore dé O. R. Co.,

- 323, U.S. 600 patos Lavender. v. Kurn, 327 US. 645

(1945); Ellis v. Union P. R. Co., ‘329 U.S. 649 (1947);

"Myers v. Reading R. Co., 331 U.S. 477 (1947) ; Wilkerson v.

a y, 336 U.S. 53 (1948) and Stone v. New York, C.

St. L. R. Co., 344 U.S, 407 (1958). Ae

The decision herein complained of ‘is in direct ootiant

-with the foregoing cases on the authority of the jury to

draw permissible inferences from t the ‘evidence and the

right of an Appellate Court to-sitbstitute its interpreta-_

tion of the evidence for the verdict of the’ jury and the .

judgment of the trial court. a .

aie te ‘

The vo clusion of the Court of Appeals “Dy bottomed

“on its ‘selbiaient that: ‘‘there is no evidence as to the

agency whereby the hazard was placed in.or on me 4 road-.

bed.’”(Opinion, App. p. 14) ;

Following’ this ass tion, the: Court of Appeals notes

“that strahgers may bee requent ‘the premises and that the

‘ne of another railroad is in close proximity to the scene

‘of the accident. °

4

$

“The Court ‘then says that.a finding that the Aeteibaat .

placed the clinker in. its roadbed as a ‘part of the ballast

used in the repair operation .can rest on nothing but

_ speculation. (Opinion, App. pj 15) \ mah

The. Appellate Court infey 8 that a stranger or another —

railroad could have gone on ‘to defendant’s right of way

and buried a clinker therein ‘and dismisses the probative

evidence of a major repair job (using 15 gubic- yards of

unsereened cinders and chat) on the railroad done by jits

own employees three weeks before the accident and an

injury caused by. clinker buried in a roadbedӴ which

‘was still soft from new ballast installation. \

\ ;

The Court of Appeals by. weighing the than and

_ searching the record for conflicting circumstantial evidence .

has violated the clear mandate of this Court and deprived

petitioner of. his right of trial by jury. Excerpts from

several of the cases construing the F.E.L.A. cited on

page 6 demonstrate ‘this to be true. \

In Ellis . Union P. R. Co., 329: US. 649, Gah) ‘this

Court said at page 653:

“Once there is a reasonable cis in the record for

concluding there was negligence. which caused the in-

jury, it is irrelevant that fair minded men might —

reach a diffprent conclusion. For then it would bé an

invasion of the jury’s function for an appellate court

“to draw “bntrary inferences or to conclude that a

different conclusion would be more reasonable.” —

_-“

ite v. Kurn, 327 U.S. 645, (1945), holds, at page

653 : , |

“It ifno answer to say that the jury’s wesiliet in-

volved speculation and conjecture. Whenever facts

are in dispute or the evidence is such that fairminded

men may draw different inferences, a measure of

' speculation and conjecture is required on the part

aoe. “

of. those itinte duty it is to settle the. dispate by

choosing what seems to them to be the most rea-

| sonable inference.” : :

i” Wilkerson v. McCarthy; 336 U.S. 53 (1948), thiis

7 Court stated at page 63: ss ot Bx

= “In reaching its conclusion as to negligence, a. jury |

is frequently called upon to consider many separate

‘strands of <circumstances, and: from these cireum-

$tances to draw its ultimate conclusion om the issue |

of" negligence. * * * For these reasons, the trial court —

should have Submitted the casé to.the jury. * * *”

Ina concurring opinion it is said at page 70: * “

“The criterion governing the exercise of our dis-

cretion in. granting or denying certiorari. is snot who.

‘loses below byt whether the jury function in passing _

on. disputed questions of fact and in oe infer-

ences from Ber en facts has béen respected.” es 3

Or as s anid in 1 Bailey v. Central . Vermont Ry, Co., 319

: US. 300, (1942) at page | | Oe ia

“T6 deprive these workers of the benefit of. a jury .

trial in close“or doubtful cases is to take away a

goodly portion of the relief which Congress has af-

“forded them.” i

2. The décision herein is not in accord ith the applicable

decisions of this Court. -

The decision of the Court below is in conflict with the

holdings of this Court in Brown v. Western Ry. of Ala-

bama, 338 ‘U.S.\:; (1949) and Southern. ey. Co. v..

Puckett, 244 U.S/ 571, 1917). ,

These are the only two cases ever decided by: this Court

involving railroad employees injured - -by -elinkers in or

e

eo i eee ee

on the railroad right of way. They are dismissed by the

| Court of Appeals’ as “inapposite.' ” {Opinion, App., page

. 16) ; 2 i 5 , ae . | Pass

| 3, The Opinion of the Court below sets forth a standard

of proof which is in conflict, with - decisions of this :

Court and its own prior decision. .

The: opinion of the Court. of Appeals’ says:

_ **There are no probabilities to be deduced from this _

evidence. That defendant placed the clinker in its

roadbed as a part of the ballast uséd in-the repair

operation is merely one of several possibilities pre-

sent. A’ finding that it did so can rest on ees but .

speculation.”

(Opinion, App., , page 19) .

‘This part of the opinion is in conflict with tlie épinion

of the same’ Court of. Appeals in Spotts v: Baltimore and —

Ohio R. Co., (1939) 102 F..(2d) 160, a case involving the,’ »

efficiency of a railroad car brake, where the Coyrt. says at |

page 162:

om other words, we cannot say as a matter of law

that any and all inferences ‘which the jury might rea- _

sonably draw fromthe evidence would support only a

verdict for defendant and not for plaintiff. Nor can.

‘we say that, as a matter of ldw, the contradictory

_ evidence offered by defendant shows that plaintiff’s

testimony cannot be trie. A’ contention for such action

is an appeal to us to weigh the conflicting evidence in

‘the light of probabilities and thus to invade the ex-

clusive province of the jury, and, on an application . -

for-a new dese i of the trial judge. This we may not do.”’

' This Court in Myers v. Reading R. Co., 331 U.S 477, 483.

(1947) approved the rule in the Spotts ease and quoted it.

%

¢

/ —10—

The cases listed on page 6 hereof clearly ‘enunciate

this Court’s opinion on quantum of proof and the duties.

’ and limitations of jurors, trial judges and Courts of Ap-:

peal. They set forth in clear, forthright and unmistak- *

able ‘anguage that if there is any evidence in the record,

standing alone and by itself,-from which a reasonable in-

ference of negligence may be drawn, the jury must de-

cide the case and its verdict should not be. disturbed.

None of these cases requires, that ‘*probabilities be deduced

from the evidence,”’ as does the Court of Appeals in the

opinion complained of. .

The opinion and judgment of the Court below it per-

mitted to stand, will ‘result in prejudice to the substantial’

rights of petitioner and to other persons whose cases

might be decided in a similar fashion, contrary’ to: ~

decisions of this Court.

CONCLUSION.

For the foregoing reasons, this petition oot writ of

certiorari should be ‘granted.

5 Respectfully subinitted,

Can, L. Yarorr,

Attorney for Petitioner.

Rovert J. Rarrerry,

Of Counsel.

% 7

—H— «.

» APPENDIX A? «

Opinion, United States Court of Appeals.

| For the Seventh Circuit.

-Ix tHe Unirep States Wourr or APPEALS

For the Seventh Circuit

sb) : ;

<, , | eee

No. 11462... Ocroper TERM AND-SeEssion, 1955.

a c

Appeal from the

Joun W. Wess, i :

; Piaintiff- Appellee, United States Dis-

. .

ILuixots CENTRAL, RAILROAD eae g Northern District

PANY, - | -of Illinois, Eastern

: Defendant-A ppellant. , Division,

e

December 29, 1955.

9

Before Magor, LINDLFY and Swain, Circuit Judges.

LinbLey, Curcutt Judge. This is an action under the

Federal Employer’s Liability Act, 45 U.S. C. §4 51 et seq.,

to recover damages. for personal injuries sustained, \by:

plaintiff in’ the. course, of his employment as a brakeman

by defendant, resulting, as he averred, from the negligence .

of deferant in failing to provide him with a reasonably

- safe place.in which to work: Defendant’s motions for’a ,

directed verdict made at syiden of plaintiff’s evidence °

and at the close of all the evidence were denied, as was

its alternative motion for a fhew:trial. It appeals from the

judgment entered on the verdict in favor of plaintiif,

US. trict Court for the .

assigning as error the trial court’s action in overruling ¥

its motions and in giving suhwale Wain

‘Plaintiff had been employed by ‘defendant in various

capa ities since about 1925 and was, on July 2, 1952, when

theAccident occurred, working as a brakeman, heing aés-

—12—

signed to the erew of a Iécal freight run bition the cities

of East St. Louis and Clinton, Hlinois. During the course

of his duties, in a switching operation at Mount Olive, he

noticed that a wheat car in the train was leaking. While

the other crew mergers continued with the task of: picking

up cars to be incorporated into the train, he started back

to the,caboose to get some waste to plug the ‘hole in the

leaking car. He ‘turned and, on the. oy step he_ took,

tripped and fell withyhis left leg bu under him. He

thereby sustained a serious injury to his left kneecap.

The accident. occurred on the roadbed. of defendant’s °

“house track” at a point about one foot from the end of

the ties: After plaintiff fell, he looked to see what had

caused him to fall and'saw a clinker “about the size of

_my fist” which was partly out of the ground, and a hole

beside the clinker. He picked up the offending object and —

tossed it aside, proceeded to the caboose, procured some °* .

waste And plugged the hole in the leaking car. Plaintiff.

stated that he looked “at the ground” before he stepped

but did not see the clinker. He stated:further that: the

‘footing on the roadbed looked ‘level but was a little soft.

The principal question: presented is whether the court

correctly ruled‘ that there was sufficient evidence of negli-

gence to require denial of defendant’s motions for a di-

rected verdict and submission of the cause to a jury..

Plaintiff’s testimony that his injury was caused by his

stepping on a clinker is not. contradicted. We shall as- -

sume, for the purpose of this decision, that such an object .°

on or in: the roadbed constituted a. hazard to defendant’s

_employees. But to prevail, it was incumbent on plaintiff

to adduce evidence that this. hazardous condition was pro-

duced or was permitted to continue by reason of defend-_

ant’s negligence. Moore v. Chesapeake € O. Ry. Co., 340

U. S. 573; Eckenrode v. Pennsylvania R. Co., 164 F. 2d

_ 996, aff'd 335 ‘U.S. 329 (C. A.-3); Delaware, L. € W. R.

Co. v. Koske, 279 U.S. 7; Patton v. Texas & P. Ry. Co.;

179 U. S. 658. Fault or negligence may not be inferred. °

from the mere existence of the clinker and the happening

DB -

of the accident. Delaware, L.d W. R. Co. v. Koske, supra;

Patton v. Texas & P. Ry, Co., supra. The employer is .

not an insurer that the work place he absolutely safe, but

_ is chargeable only with the duty of exercising reasonable

care and diligence to see that the place where work is to

performed is, reasonably safe for its workmen. Ellis... —

‘v. Union Pacific R. ‘Co., 329 > ~$- 649; Seaboard: Air Line

Ry. Co. v. Horton, 233 U.S. 492; Delaware, L. & W. R.

Co. v. Koske, supra; Patton v. Texas &é P. Ry. Co., supra,

_ Applying these. governing. principles, we believe the trial

court erred in denying defendant’s motions for a directed

verdict. The evidenee, viewed in the light most favorable

to plaintiff, supports the following fact statement. He-

sustained. a serious injury when he stumbled over an’un- .

‘usually ‘large clinker which was embedded, partiaily at

least, in defendant’s roadbed. At the point’ where the

accident occurred defendant maintains its mainline track

which runs in a north-south direction. Parallel to,- and

east of, that track, defendant maintains a second track

which is referred to in the record as the passing* track.

_ The latter is connected to the mainline by switches and

a cross-over track. Ingress to the passing track is gained

over a switch, known as the “house track” switch. The

‘section of the passing track south of the switch is known |

as the house track. East of these installations, and con-

‘ nected thereto by switches and a tross-over track, are.

~ eertain fagilities of the L. & N. Railroad consisting of its

mainline and house tracks. Plaintiff was standing on the

roadbed of defendant’s house track approximately twenty

feet south of the switch when he. noticed the leaking condi-

“tion of the wheat car. The accident occurred at that, spot

when he turned toward the caboose and took one step.

He was -regularly employed on the East Saint. Louis-

Clinton local and worked frequently at this locale. He. |

did not see the clinker before he fell¥ during cross-exami-

nation of plaintiff, the trial judge characterized his testi-

mony as to his knowledge whether, before the accident,

the clinker was completely buried in the roadbed in the

following language, ‘‘It is. self-evident that he does -not.

know, if he did, not see it.”. The physical set-up of de-

ae

‘ fendant’s house track had been altered in June, 1952, when

the level of the house track: switch had been raised five

inches. In this operation the ties..and.rails were raised

and sufficient ballast in the“form of fine cinders and |

‘crushed stone was employed to raise the switch to the re- |

“Syuired level and the grade of the connecting rails to a

compensating elevation. There was‘ no direct testimony

that this operation affected the roadbed at the point where

. the accident occurred, i.e., twenty feet south of the switch,

but; -for

-affected.7Some fifteen cubic yards of ballast were required

to accomplish the end result. Further weight is afforded

to our assumption by plaintiff’s testimony that the footing

at that place was level but a little ‘soft: Three different

employees testified that .they periodically inspected the

trackage at’ this location for defects in the facilities and

hazards existing thereon or nearby. One of these wit-

nesses testified that he had, occasionally, discovered large

clinkers in the ballast in his territory and had caused them

to be removed. Subsequent questioning: of. the witness

elicited the testimony that the “territory” togwhich refer-

ence is made included more than forty miles of deferdant’s

right of way and mainline. There was no testimony ‘as »

to conditions at the scene of the accident either hefore or

after the occurrence except plaintiff’s testimony that. he

stumbled over 2. unusually large ‘clinker which caused his

injury.

To make a submissible case it was, inenmbent on plain-

tiff to adduce substantial evidence that defendant either

negligently placed the clinker in the ballast or was. charge- ,°

able with notice, either actual or constructive, of its pres-

ence therein. Bevan. v. New York, C. & St. L. R. Co.,

~. 132 Ohio St. 245, 6 N. E. 2d:982. We think.his proof_fails

in this’ errs There is no evidence as to the agency —-.

the hazard was placed in or on the roadbed.

‘whereby it

Defendant’s lines are in close gow ‘to and are con-

nected with those of the L. & N. Plaintiff testified that

the facilities of ‘the two roads were connected to permit

the interchange of freight cars between them. A photo-

rposes of this opinion, we assuine that it. was.

_ graphic exhibit which, according to. plaintiff's testimony, )

substantially represents the conditions at the scene -of the. -

accident, reveals several buildings in the near vicinity; .

. there is no evidence to show whether these-are the prop-

erty of’ defendant or of the.L. & N. or of some other —

‘stranger to the occurrence. The right of way is not fenced,

~ and is, therefore, accessible to the public ; there, is no +

; evidence as to whether or not the premises are frequented

by strangers. There-are no probabilities to deduced

from this evidence.” That defendant placed the/clinker in

its roadbed asa part of. tiie ballast used in’ the repair.

operation is merely one of several possibilities present.

- A finding that it did so can rest on sada i ‘but — |

elation.

Furth rmore, were we to hold that it was’ prop rT to

pernut the jury so to speculate, plaintiff still would not

~ he entitled to recovery unless it was allowed also to.shecu- |

late that it is negligence per se‘to allow stich an object

to become mixed in with the fine ballast used in improving

its roadbed. Defendant’s duty to plaintiff in this respect ¢

was to exercise tlie care of a reasonably prudent person,

under the existing circumstances, to p ohibit the introduc-

tion of’a hazard into the roadbed «wh re plaintiff was re-

quired to work. Cf. Seaboard Air Line >» Ry. Co. v. Horton,

233: U..S. 492; Missours Pacific R. C9. v. Zolliecoffer, 191

S. W. 2d 587. 588 (Ark.). Not only’ is.there no evidence

that defendant violated that duty, ‘but also,.there is a

total want of evidence as to what constitutes reasonable

prudence under the proved circumstances.

The record is equally. lacking in evidence. to prove that

defendant had actual or constructive notice of the danger-

pus condition. The testimony as to actual notice is that

- no one, plaintiff included, knew of the presence. of the

clinker until the accident occurred. There is substantial.

undisputed evidence: that this portion of defendant’s right

of way was inspected frequently, with a purpose whick

included the seeking out andVvremoval: of such hazards. —

The evidence j is silent as to what standard of car® plaintiff

id

a

—! a

was entitled to expect and to rely upon. ee is ‘no evi-

4 , dence that defendant was remiss in any respect. There

| is.no proof that its inspection of its premises did not. meet °

The required nandfan or that a\closer, ;nore thorough,

inspection would have disclosed \the e Kistence of this

* hazardous situation. — Aare

e \

Plaintiff having failed in his rata of proof, it was

error te submit the case to the-jury and permit it to reach

a verdict by pure speculation. The situation is not unlike

that disclosed in Kaminski v. Chicago, River & I. R. Co.;

200 F. 2d 1 (C. A.-7). Kaminski, |while working in. the

course of his employment on the prem sesiof a customer

. of the defendant. railroad, was seriously injured: when he

fell into a hole beside an industry track. We found that

there was no evidence as to when and\ ithradgh what agency .

the hazardous condition was created dr as to\the railroad’s .

notice, either actual or constructive, of. its istence,. and

held that the tria] court erred in: overruling tke railroad’s

motion for a directéd verdict.. A comparable olding is:

found in numerous cases involving. factually simWar situa-

tions. See e.g., O’Mara v. Pennsylvania’ R. Co., 95 F. ¢2d

762 (C. A.-6); Bevan v. New York, C. & St. L. R. Co., 132

_ * Ohio St. 245, 6 N.-E. 2d 982; Spencer v. Atchison, T. & 8.

_ \F. Ry. Co., 907 P. 2d 126 (C! al. App.); Waller v. Northern

| Pacific Terminal Co., 166. P. 2d 488 (Ore.); “Matthews v. °

Southern fags 59 P. 2d 220 (Cal. App.}..

, - The cases 6n which plaintiff relies aré largely inap-

_ posite. -In each there was evidence from which the jury

might reasonably infer thatthe defendant either negli-

_ ‘ genfly created the dangerous agency involyed, or was .

~ chargeable ‘with notice of the existence of: a condition

which rendered unsafe the place where the injured em-

. ployee was required to work. £g., Brown vy. Western Ry. rg

of Alabama, 338 U. S. 294; Southern Ry. Co. v. Puckett,

244-0. S. 571, afffing, 16 Ga. App. 551, 85 S. E.. 809;

Fleming v. Kellett, 167 F. 2d 265 (C. A.-10); Waddell v.

Chicago & E. I. R. Co., 142 F. 2d 309 (C. A+7); Pitcairn

t, ehege ey F.2d 664 (C. A.-7); Virgintan.'Ry. Co. v.

By Forty 84 F. 2d 133 (C, A.-4); Smith Vv. Schumaker, 85

tte

lt

a 9a 967, cert, denied 307 U. S. 646 (Cal. App.) ; Missouri

Patific R. Co. v. Zolliecoffér, 191 S. W. 2d 587 (Ark.):

Tash v. St. Louis-S. F. Ry. Co., 76S. W. 2d 690 (Mo.);

McClain v. Charleston & W. C.. Ry. Co., + S.:E. 2d 280

| (8. C.); Lock-v. Chicago, B. € Q. R. Co., 219 S. W. 919

_ (Mo.); Hollaway v. Missouri, K. d T. Ry.. Co., 208 S..W. 27

*(Mo:). ‘The only case cited which purports to justify an

inference of negligence merely from the existence-of an

obstruction and the happening of the accident is: Marcades

v. New .Orleans. Terminal Co., 111. F. Supp. 650. The

case was tried by the court without a jury and the evi-

‘dence is not reported. Insofar, however, as that decision

imposes liability merely because of the existence of a

hazard without any evidence as to defendant’s notice, it-

_ rests upon a theory: of liability ‘without fault and cannot |

-be reconciled with pronouncements by the Supreme Court

that the Act does not make railroads insurers of employee

- safety. Ellis v. Union Pacific R. Co., 329 U. S. 649; Séa-

, board Air Line Ry. Co. v. Horton, 233 U. S. 492.

Since’ we are of the opinion that defendant’ s motions

for a directed verdict should have been allowed, we find it: -

unnecessary-to-consider other assignments of error. The

| judgment is reversed and ‘the cause remanded to the Dis-

trict Court with directions to enter judgment for defendant.

A true Copy:

Teste :

7. °

ee —)

APPENDIX B.

‘Judgment.

oe (December 29, 1955)

Joun W. Wess,\ = = -—s«Y Appeal from the

: | laintiff-Appellee,| © United States’ Dis-

. a ak : . trict Court for the

ILuyvors CENTRAL” RatLRoap Com- Northern _ District

PANY, 4 _ of Tilinois, Eastern,

. Defendant. Lepellant J) Division.

This cause te dl on to be’ heard on the transcript of.

the record from the United States District Court fé@r ‘the

) _ Northern District of «Illinois, Eastern Division, and was

. | argued by counsel. .

) - Qn consideration whereof, it is ordered nd adios by

| i “this court that the, judgment of the. said District Court in.

) ‘this. cause appealed from ‘be, and the same is hereby; .

Reversep with costs, and that this cause be, and the same

is hereby ReManpep. to the said District Court with. direc-

tions ‘fo enter judgment for: the Defendant.

A” APPENDIX ©.

aigbiclanen 7

ce Order Denying. Rehearing. 4

(January 30, 1956) _ a

; _.. Joun W. Wess,” CELE a Apphal Pasig ae e-

este rat anes Plaintif’ Appellee, United States Dis-

No. 11462 ee 4 triet Court for the |

ILLANOIS CENTRAL RamroaD Com-{ ° Northern Bistrict:

PANY, of [linois, Eastern

Defendant- Appellant.) Division.

It is ordered by’ the Court that the petition ies a re-.

ez hearing of this cause be and the’ same is hereby, Dentep.

“

,

Me see

APPENDIX D.

) 7

Courts of Anoeeis: Certiorari.

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods : :

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal cases, ‘before or after

rendition of judgment of decree.. June 25, 1948, ¢. 646,

62 Stat. 928, 2 U. 5. Code, Sec. 1254 (1)..

ie E.

~”~-eoOo oO “a * 3 ¢

The Federal’ Employers’ Lia

Every common carrier by ‘railroa while engaging in

commerce between any of the sevefal States or Terri- .

tories, or between any of the States and Territories, or .

between the District of Columbia or any of the States or

Territories and any foreign: nation or nations, shall be —

lable -in damages to any person suffering injury while he

is employed by ‘such eafrier in ‘suc’ commerep, or, in

case of the death of such employee, to his or her per-

. widow or husband%and ‘children of such. employee; and,

if none, then of sueh employee’s parents; and, if none,

then: of the next of -kin dependent upon such employee,

fer such injury or death regulting in whole or in. part

u — from the. negligence | of | any of the officers, agents or em

ployees of such carrier, , oF Hy-reason of any defect or. iff

_ Sufficiency, due to its negligence, in its cars, engines, ap- .-

pliances,. machinery, — track, roadbed, works, boats,

wharves, or other equipment.

a

sonal representative, . for the benefit of the surviving . |

ai 20 we :

Any employes of a carrier, any part of whose duties as

_ such employée shall be the furtherance of interstate or

‘foreign commerce; or shall, in any way directly or closely

am] substantially affect such commerce as above set forth

ii for the purposes of this chapter, be considered as

being }employed, by such carrier in such commerce and

shall be considered as entitled to the benefits of this chap-

_ ter. Apr. 22, 1908, ce. 149; Sec. 1, 35 Stat. 65, Aug. 11,

. 1939, c. 685, Sec. 1, 53 Stat. 1404. 45 U. S. Code, See. 51.

- APPENDIX F.

~ .

Actions; Limitations; Concurrent Jurisdiction of Courts.

No action shall be maintained under this’chapter unless

commenced within three years from the day the cause of

action accrued. |

Under’ this chapter an action may be brought in @ dis-

trict court of the United States, in the district of the -

residence of the defendant, or in which the cause of action

“arose, or in which the defendant shall be doing business

at the time of commencing such action. The jurisdiction

of the courts of. the United States under this chapter

shall be concurrent with that of the courts of the several

States. Apr. 22, 1908, c. 149, See. 6, 35 Stat. 66; Apr.

5, 1910, ec. 143, See. 1, 36 Stat. 291; Mar. 3, 1911, e. 23t,

Sec. 291, 36 ‘Stat: 1167: Aug. 11, 1939, c.. 685, Sec. 2, 53

Stat. 1404 5 June 25, 1948, c. 646, , See. 18, 62 Stat. 989.

45 U8 a. Sec. 56.

es