# Petition for a Writ of Certiorari — Shenker v. Baltimore & Ohio Railroad

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0191%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1963
- **Citation:** 374 U.S. 1

## Text

Court. US.
“FILED

SEP. 5. 196"

“In THe

Supreme Court of the Uiited States |

Fe | OCTOBER TERM, 1962

No. 414 bee

_ JOHN F. DAVIS, CLERK

MICHAEL. SHENKER, Petitioner,

V.

HE BALTIMORE AND OHIO RAILROAD, |
_, COMPANY, 3 ——

PETITION FoR. A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR.

THE THIRD CIRCUIT AND APPENDIX

-.." . " ©HARLES ALAN WRIGHT’ .
: | 2500 Red River Street
Austin 5, Texas:
JOHN RUFFALO
510 Mahoning Bank Building
_- Youngstown, Ohio
Counsel for Petitioner

James A. WRIGHT
434 Forbes Avenue

Pittsburgh, fa.

JAMES E. MCLAUGHLIN
806 Frick Building
Pittsburgh 19, Pa. 5

JAMES P. McARLE
606 Friek Building
Pittsburgh 19, Pa.

35 Counsel

omit BROS. CO. INC., LAW PRINTERS, 434-436 BLVD. OF ALLIES, PITTSBURGH 19, PA.

JJC re 1
1 scccccdennndecceciccocecc.ccs 2
Questions Presente. 2
Statutes Involved ................-..... 1 2
Statement of Case... l 4
EA Granting the Writ............0.1.., 6
. ͤ .. ˙¹Ü.r 12
Appéndix—Opinions and Judgment Below........ 13-27

TABLE OF CITATIONS
Cases

Almont. United States, 177 F. 2d 971 (3rd Cir.
gy Me . RIM tea

‘Atlantic Coast Line R. Co. v. Robertson, 214 F. 2d
746 (4th Cir. 1954) VVV

Beattie v. Elgin, J. & E. R. Co., 217 F. 2d 868 (7th
d irc eae a

Butz v. Union Pacific I R. Co., 120 Utah 185, 193, 233
w’. BG SER, SBS (NOGA). os oo. ec cncccss es...

Chesapeake & O. Ry. Co. v. Thomas, 198 F. 2d 783
(4th Cir. 2 hag V

Chicago G. W. Ry. Co. v. en 234 F. 2a 441, 448
„„ „ r

Denver & R. G. W. R. Co. v. Conley, 293 F. 2d 612 |

p 988.

Drake Bakeries, Inc. v. Local 50, American Bake
Confectionery Workers, 294 F. 2d 399 (24 Ur.
1961) Affirmed, 370 P. S. .

Ellis v. Union Pacific R. Co., 329 US. 649 (1947) ..

Harris v. Pennsylvania R. Co., 361 U.S. 15 (1959) re-
W St. 582, 156 N. E. 2d 822 (1959)

8

Table of Citations.

Cats PAGE

_ Kooker v. Pittsburgh & L. E. R. Co., 258 F. 2d 876
4 h ² àI—L[„t ? ĩté˙6vbö6

Schlueter v. East St. Louis Connecting Ry. Co., 316
Mo. 1266, 1282, 206 S. W. 105, 112 (1927)......

_ Sinkler „ Missouri Pacific R. Co., 356 U. S. 326.

— y

Terminal R. Ass'n. ot St. Louis v. Fitzjohn, 165 F. 2d
. ND bin oc wvndcncnccicccccess

Textile Mills Securities Corp. v v. Commissioner of
Internal Revenue, 314 U. S. 326, 334 (1941) .

United States v. American-Foreign S. S. corp. 363
. 8. 685, 687 (10DUU .....

Van Horn v. Southern Pacifle · Co., nn App. 2d
528, 297 P. 2d 479 (195)...

Western Pacific R. Corp. v. western Pacific R. Co.,
— S. 247, 261 (1953 ))) 3

MICHAEL SHENKER, Petitioner,
„ |

THE BALTIMORE AND OHIO RAIL OAD
* CO MPANV. Respondent.

—

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari issue to
review the judgment of the United States Court of Ap-
peals for the Third Cireuit, entered in the above- entitled
case on June 1, 1962.

_ CFTATIONS TO.OPINIONS BELOW
_ The opinion of the trial judge, denying defendant's
motion for judgment notwithstanding the verdict, is re-
ported at 196 F.Supp. 108 and is printed in the Appendix
hereto, at page 13 below. The opinion of the Court of
Appeals for the Third Circuit, printed in the Appendix
at page 18 below, is not yet reported. N

| Btatutes Involved.
The opinion of the Court of Appeals was filed April
11, 1962. A timely petition for rehearing, filed May 3,

1962, was denied on June 1, 1962. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Where only six of the eight active judges of a
court of appeals take part in the decision of a petition
for rehearing, and four of the six vote to grant rehearing,
is the petition granted or denied? |

2. Is a railroad liable, under the Federal Employ-
ers’ Liability Act, for failure to provide a safe place to
work for its employee who is injured when, in the course
of his duties, he is performing work on the car and the
premises of another carrier which his employer services
by agreement with that —_ on

— aan
' STATUTES INVOLVED
_ The statutory provisions involved are 28 U.S.C.
§ 46(c), and 45 U.S.C. § 51. |

28 U.S.C. § 6(c): Cases and controversies shall
be heard and determined by a court or division of not
more than three judges, unless a hearing or rehearing
before the court en banc is ordered by a majority of the
circuit judges of the circuit who are in active service. .
A court en banc shall consist of all active circuit judges

of the circuit. eae

» 8
Statutes Involved.

45 C.. C. § 51: Every common carrier by railroad
while engaging in commerce between any of the several
States or Territories or between any of the States and
Territories, or between the District of Columbia and any
of the States or Territories, or between the District of
Columbia or any of the States or Territories and any for.
eign nation or nations, shall be liable in damages to any
person suffering injury while he is employed by such
carrier in such commerce, or, in case of the death of such
employee, to his or her personal representative, for the
benefit of the surviving widow or husband and children
of such employee; and, if none, then of such employee's
parents; and, if none, then of the next of kin dependent
upon such employee, for such injury or death resulting
in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by rea-.
son of any defect or insufficiency, due to its negligence, -
in its cars, engines, appliances, machinery, track, road-
bed, works, boats, wharves, or other equipment.

/ ‘ :

Any employee of a carrier, any part of whose duties
as such employee shall be the furtherance of interstate
or foreign commerce; or shall, in any way directly or .
closely and substantially, affect such commerce as above
set forth shall, for the purposes of this chapter, be con-
sidered as being employed by such carrier in such com-
merce and shall be considered as entitled to the benefits
of this chapter.

re

5

Statement of the Case.
3 ee
Ps STATEMENT OF CASE

Petitioner filed suit in the District Court for the
Western District of Pennsylvania on November 21, 1957,
against respondent, Baltimore and Ohio Railroad Com-
pany (hereafter “B. & O”) and against the Pittsburgh

and Lake Erie Railroad Company hereafter (P. &
L.E.”) (la) The jurisdiction of the Distri Court was
invoked because the isés under the Federal Em-

ployers’ Liability Act. Petitioner was employed, at the
time of his injury, as a baggageman by the B. & O. at
its Mahoningtown Station in New Castle, Pa. At that
station there are tracks of the B. & O. and of the P. &
L.E., and also a station of the P. & L.E. The station of
the P. & L.E. was unmanned and the B. & O. ticket agent
sold tickets to P. & L.E. passengers. (122a) The P. &
L.E. had no employees at the station. (18a) By an ar-
rangement between the two railroads (1la), B. & O. em-
ployees would service P. & LE. trains stopping at
Mahoningtown and running on P. & L. E. tracks. (97a)

- Although petitioner was employed by the B. & O.
paid by it, and subject only to the authority of B. & O.
supervisory employees (75a), part of his duties were to
load and unload baggage in P. & L.E. trains, as well as
B. & O. trains, and to perform janitor work in both the
B. & O. and the P. & L.E. stations. (74a) On October 15,
1956, petitioner was engaged in loading mail sacks on a
P. & L.E. train: Both he and the baggage car attendant,

a P. & LE. employee, attempted to open the door on the

P. & L.E. car to its full width- (21a), but were unable to
open it more than 18 or 24 inches. (18a) The baggage
car attendant had reported the defective condition of the
door to his superiors, but they had failed to repair it.

/

/
/

/

Statement of the Case.

(21a, 42a) The mail sacks being loaded were 31 inches
wide and 37 inches deep. (18a) Plaintiff was compelled
to exert unusual pressure, twisting the bags and endeav-
oring to force them through the small opening. In so
doing he injured his back. (23a)

The trial court directed a verdict for the P. & L.E.,
finding it was not petitioner's employer within the Fed-
eral Employers’ Liability Act, and there was no diver-
sity to support a common law claim. (122a) The jury
returned a verdict for petitioner against the B. & O. of
$40,000. (3a) Motion for judgment n.o.v. was denied.
(122a) On appeal by the B. & O., the judgment of the
district court was reversed, in an opinion by J udge Good-
rich, with whom Judge Ganey joined. Judge Kalodner
dissented with opinion. Petitioner petitioned for a re-
hearing. The petition was denied, per Goodrich and
Ganey, JJ., with Judges Biggs, Calodner, Staley, and
Smith dissenting from the denial of rehearing. Judges
Hastie and McLaughlin took no part on the motion for
rehearing.

| Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT 2,
1. The decision of the court below that rehearing
is denied when four of six participating judges vote to
grant rehearing presents a question of importance to the
courts of appeals in the administration of their judicial
business. Cf. United States v. American-Foreign S. 8.
Corps., 363 U.S. 685, 687 (1960).

The decision can be justified only on a reading of
the statute, 28 U.S.C. § 46(c), which ignores all consid-
erations other than the literal words. It is true that at
the time of decision there were eight judges in active
service on the Court of Appeals for the Third Circuit,
and only four voted to grant rehearing, while the statute |
says rehearing en banc may be ordered “by a majority
of the circuit judges of the circuit who are in active
service.” But this Court, in its decision first upholding
the rights of the courts of appeals to sit en banc, was
willing to make a “sacrifice of literalness. for common
| sense.” Textile Mills Securities Corp. v Commissioner Of
Internal Revenue, 314 U.S. 326, 334 (1941). A similar
sacrifice is required here to avoid an absurd result.

Tn its construction of the present statute, this Court

has already indicated it is not to be read literally, by

specifically approving as a possible practice grant of re-

hearing en banc by a majority of the three judges of the

original panel. Western Pacific R. Corp. v. Western Pa-

cio R. Co., 343 U.S. 247, 261 (1953). This is in fact the
practice in at least one circuit. See Rule 15(e), Eighth |
Circuit Rules. If, consistent with the statute, the full

court can delegate to the three judges of the panel the

‘Reasons for Granting the Writ.

power to order or refuse rehearing, it is y con-
sistent with the statute for the court to te this

‘ petition for rehearing. On the view taken by the court
below, a judge who does not participate in any way is
counted, in effect, as if he had voted to deny rehearing.
The Third Circuit itself has held, quite sensibly, that the
succeeding sentence in the statute, which provides in
mandatory language that “a court in banc shall consist
of all active circuit judges of the circuit,” is not to be
read literally, and that it can hear a case en banc though
one of the judges in active service is away from the cir-
cuit and not participating. Alltmont v. United States,
177 F.2d 971 (3d Cir. 1949). Thus if rehearing had been
granted here, the case could have been heard in the ab-
sence of Judges Hastie and McLaughlin, and a vote of
four-to-two for petitioner would have reinstated his
judgment. .
rehearing was ordered, and four had voted for
petitioner on the merite, the contrary ision of the
panel would be superseded and his j ent affirmed.
Drake Bakeries, Inc. v. Local 50, A n Bakery &
Confectionery Workers, 294 F.2d 399 (2d Cir. 1961), af-
firmed 370 U.S. ..... (1962); R.C., 51 Harv. L. Rev. 1287
(1931). If it is permissible to construe “all active circuit
judges of the circuit” in the final sentence of 28 U.S.C.A.
46 (e) as meaning all active circuit judges who are not
disqualified or otherwise not participating, a similar con-
struction is permissible, and required by common sense,
in the preceding sentence of that statute.

8 5 oe :
| Reasons for Granting the Writ.

. — of tie Fe
bility Act by the court below is clear conflict with
' ern

The issue is whether u railroad is liable to its em-

+ ployee where. he is injured on the premises of. a, third

ef party because a defective condftion on those premises

creates an unsafe place to work. The court below under-

took to resolve that issue by considering whether the *

negligence of the third party is attributable to the em-

. ployer carrier as a matter of law. It decided that it was as

not, in the circumstances f this case,. citing as sole

authority for its decision e Second Restatement of

Agency. Decisions of this urt, and the courts of ap-
| peals, have made it plain that refined concepts of com-

mon- law ageney r * baute in the sottition of the

problem. fap?

“3 The question here i is not: thether the e of
4 third party can be attributed to the employer, but

whether the employer is itself negligent in its

25 non-delegable duty. to exercise reasonable carè to furnish © |
its employeega safe place to work. Ellis v. Union Pacific _
* RB. Oa, 329 U.S. 649 (1947), establishes that this duty of My

the carrier continues even when it requires its employees

to go onto other. premises to work, and that the carrier is
_liable though the defect was in premises over which the

‘railroad had no control. ‘This is the holding also of
Harris v. Pennsylvania R. Co., 361 U.S. 15 (1959), re-
versing 168 Ohio St. 582, 156 N.E.2d 822 (1959). Harris
was a Pennsylvania Railroad employee who was ordered
to assist in retracking two cars which had left the tracks

of the Nickel Plate Railroad. He was injured because of
oil on a Nickel Plate tie. There was no evidence chat the ö

5 8 Lia-

a
*

hy
* —

*

W

os: ae
Reasons for Granting the Writ. N

88 placed the oil there, or knew of its exiat:

ence, but Harris was permitted to recover from the

Pennsylvania. are: 5

If the analysis adopted by the Third Circuit in the
present case had been employed in the Harris case, Harris
would have been denied recovery unless it were found
that the Nickel Plate was an agent of the Pennsylvania
and thus that the negligence of the Nickel Plate was at-
tributable to the Pennsylvania. That is not the analysis
employed by this Court, in the Ellis and Harris cases. It

is not the analysis employed by at least five other eir-
cuits, which have held that when a railroad sends its
employee to work on premises not under the railroad's i

control, it is liable if it fails to exercise reasonable care
to make: sure that the employee is given a safe place to

„work. Atlantic Coast Line R. Co. v. ‘Robertson, 214 F. 2d

746 (4th Cir. 1954) ; Chesapeake & O. Ry. Co. v. Thomas, a:

198 F. 2d°783 (4th Cir. 1952) ; Kooker v. Pittsburgh 3

L. E. R. Co., 258 F. 2d 876 (6th Cir. 1958); Beattie v. El.

din, J. & E. R. Qo., 217 F. 2d 863 (7th Cir. 1954); Termi-

nal R. Ass’n of St. Louis d. Fitz john, 165 F. 2d 473 (8th
Cir. 1948) ; Denver ck R. G. W. R. Co. v. e 293 F. 2d
612 (10th Cir, 1961).

Liability is of course depe dent on lack of reason-
able care, but it is settled in cases that the railroad.
is under a duty to inspect premises to which it sends its
employee, and that constructive knowledge will be im-
puted to it of a defect which would have been discover-
able upon inspection. Denver & R. G. W. R. Co. v. Con-
ley, 293 F. 2d 612 (10th. Cir. 1961); Chicago G. W. Ry.

Co. v. Casuru, 234 F. 2d 441, 448 (8th Cir. 1956); Van

Horn v. Southern Pacific Co., 141 Cal. 3 2d 528. 297

a

*

_ Reasons for Grating the Writ.

P. 24 479 (1956) ; Schlueter v. East St. Louis ini
Ry. Co., 316 Mo. 1266, 1282, 296 S.W. 105, 112 (1927).

The evidence in the record that a P. &. L. E. baggageman

had earlier reported the defective condition of the door
to his superiors, and that they had failed to repair it
Ela, 42a), demonstrates that the defect here was one
which inspection would have disclosed, and for which
respondent is liable, whether or not on some nicety of
agency law the knowledge of the P. & L. E. cannot wef im-

puted directly to the B. 40. |

3. The question presented is of 1 in the
N administration of. the Federal settee ad Liability Act.

The case presents ‘no fact issue—both courts below
agree that there was evidence from which the jury could
have found the facts to be as petitioner elaimed. But if
the law is as stated by the Third Circuit, railroad em-
ployees have been deprived of much of the protection
which the Act — to give them. They will no longer
de permitted any overy under the Act for injuries

suffered when their employer sends them to work on the
line of another carrier. They cannot recover from the
other carrier, for they are not its employees. They can-
not recover from their employer in the absence’ of sdme
. showing that the second carrier was an agent of the em-
ployer. The Utah Supreme Court put the matter well:

What thé employee wants and needs is a rea-

| sonably safe place to perform his duties. He is not
concerned with and indeed cannot know ‘the techni-
calities of ownership, rental, lease or reciprocal ex-
change of facilities of an involved railroad system.
_ For him to have the assurance of safety in some
phases of his work and to be exposed to danger at

—

_ Reasons for ee Writ. *

his own risk and responsibility in others would. be

_ contrary to reason. It might even be argued that

he could better fend for himself on the master’s

premises where he was acquainted’ with his sur-

roundings than on premises of third parties with

which he is unfamiliar. The employer exercises

_ exclusive choice both as to the place of work and

control over safety factors. It is therefore not un-

reasonable to charge him with the rated *
ing a safe place to work.

Butz v. Union Pacific R. Co., 120 Utah 185, 193, 233 P. 2d
332, 336 (1951). In Sinkler v. Missouri Pacific R. Co.,

356 U.S. 326 (1958), this Court refused to permit an
employer to avoid. its responsibility under the Act by:

> engaging another railroad to perform part of its work. |
The decision below would permit avoidance of responsi-

bility by sending the employees to > work on another rail-
road. 3 :

CONCLUSION
Feoor the foregoing reasons, this petition for a writ
of certiorari should be granted.
| _ Respectfully submitted,
CHARLES ALAN WRIGHT
Counsel for Petitioner
JOHN RUFFALO
Jans A. WricHT
Jus E. McLAUGHLIN

JAMEs P. McARDLE
Of Counsel

August ...., 1962

13
Opinion of the United States District Court.
APPENDIX TO PETITION

IN THE UNITED STATES DISTRICT COURT
For THE WESTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION No. 16438

MICHAEL SHENKER, Plaintiff

. 3 v. ö
THE BALTIMORE & OHIO RAILROAD COMPANY
and THE PITTSBURGH & LAKE ERIE RAILROAD
| COMPANY, Defendants

Opinion and Order
Marsh, District Judge.

In this F.E.L.A. case, these wen evidence from which
the jury could have found the following facts: on
October 15, 1956, the 49-year-old plaintiff was employed
by the defendant, Baltimore and Ohio Railroad Company
(B. & O.) as a baggageman, his duties, inter alia, being
to assist in loading and unloading mail cars at the
passenger stations of defendants, B. & O. and The Pitts-
burgh & Lake Erie Railroad Company P. & L. E.), at
their Mahoningtown, New Castle stations. Tracks of
the P. & L. E. and tracks of the B. & O. were located be-
tween the two stations. In order to service P. 4 L. E. mail
cars. plaintiff had to leave the B. 4 O. station, cross the
B. & O. and P. & L. E. tracks, and go upon the platform

14 ee 7 a ‘
Opinion of the United States District Court.

of the F. & L. K station. The P. 4 L. E station was un
manned. The B. O. ticket agent sold tickets to P. & L. E.

passengers ; plaintiff was paid by B. 4 O. and was subject
exclusively te thet company’s arders and directions. |

Karty in the morning, plainti® pulled his wagon or
cart onto the P. 4 L. E. platform, stopped it in front of
the doorway of the mail car ona P.& L. E. train, and pro-
ceeded to pick up the mail bags on his wagon and swing

some of them through the opening of the mail car door
where the P. @ L. ZE. baggageman, Beck, received them.

On this occasion the sliding door on the P. 4 L. E.
car would not open its full width but would open only
18 to 20 inches. When plaintiff swung s mail sack weigh-
ing 80 to 100 pounds imto the narrow opening, the width
of this sack prevented it from going through the open-
ing, and he had to ert considerable extra force to push
it through the narrow opening into the car. In so doing.
he twisted his body and felt a snap in his back. He re-

ported the injury promptly to the B. & O. On subsequent
examination,

|

„„ of the United States Ditret Court

15

ot tatutlit te Ghanian tiated cee eines
for judgment notwithstanding the verdict. |

It was the duty of defendant employer to use rea-
sonable and ordinary care to provide plaintiff, its em-
. ployee, with reasonably safe cars, appliances, and
equipment in connection with his work. A failure to do
so is negligence. This duty is a continuing and non-
delegable one. The fact that the car was owned by and
located om the tracks of another railroad. does not
absolve the defendant employer from liability for the

_ injuries its employee may sustain by reason of its failure

to provide him with reasonably safe cars, appliances or
equipment. CT. Locher v. P. 4 L. E. R. x. co., 258 F. 2d
876 (@th Cir. 1968) ; Chicago Great Western Ry. Co. v.
Cura. 234 F. 2d 441 (8th Cir. 1966) ; Beattie v. Elgin
J. and E. Ry. Co., 217 F. 2 863 (7th Cir. 1954).

_ The evidence, we think, was sufficient for the jury
to find with reason that the defective door created an
unreasonably unsafe condition for an employee whose
duty was to swing heavy mail sacks from a cart into a
mail car; that it was foreseeable that this condition might
cause. an injury to him; and that it was negligence to fail
1 „„
prior to the accident. | .

In addition, there was sufficient evidence from which
the jury could find with reason that this unsafe condition
| contributed in whole or in part to the plaintiff's injury.

Furthermore, there was evidence from which the
jury could find that the unsafe condition existed for a
period sufficiently long that defendant, B. & O., had con-
strurtive notice thereof. Plaintiff testified that, immedi-

16 8
Opinion of the United States District Court.

ately prior to the accident and while he and Beck were
trying unsuccessfully to open the door wider, he told
Beck, the P. 4 L. E Baggageman, that he ought to get
the door fixed, and Beck replied that he had reported it
— mC

“Inasmuch as plaintiff at the time of the accident

was in a place where his assigned duties required him to
be, defendant\on the issue of negligence was charged
with knowledge” of the condition created by the defective
door “which im the exercise of reasonable care it could
have ascertained” Notice of a condition rendered unsafe
by a defective appliance will be imputed to the employer
where it could have been discovered by reasonable in-
_ gpection and by the exercise of reasonable care. Beattie ©
v. Hagia, J. and E. Ry. Co., supra, at p. 866;2 see also
citations, suprs.

- The employer's duty to inspect and to repair u de-
fective appliance creating an unreasonably unsafe con-
dition cannot be delegated. In the case at bar, it was for
the P. & L. E. to discharge thet duty, and its négligence
in failing to do so was the negligence of the plaintiff's
employer, B. & O., as a matter of law.

We agree with the defendant that it is difficult to
understand how the jury could find that the narrow
opening caused by the defective door created an un-
reasonable risk of harm on which to predicate liability,
a

River & Indiana R. Co., 200 F. 2d 1
Wetherbee v. Elgin, J. and E. Ry. Co., 191 F. 2d 302 (7th
Cir.), relied upon by defendant.

17
Opinion 1 the United States District Court.

could reasonably be foreseen; however, those issues,
as well as the other issues mentioned, were for tiie jury.
Lavender v. Kurn, 327 U.S. 645; Rogers v. Missouri
Pacific R. Co., 352 U.S. 500; Sano v. Pennsylvania R. Co.,
282 F. 2d 936 (3d Cir. 1960) ; and cases cited supra.

An order will be entered denying the defendant's
motion for 9 n. o. v.

«

ORDER OF COURT

. AND NOW, to-wit, this 8th day of August, 1961,
after argument and upon due consideration of the
parties’ briefs it is ordered, adjudged and decreed that
The Baltimore and Ohio Railroad Company’s “Motion
for Judgment N.O.V.” be and the same hereby is denied.

(signed) Rabe F. Marsh
United States District Judge

18
: Opinion of the Court of Appeals.

UNITED STATES COURT OF APPEALS
FoR THE THIRD CIRCUIT

NO. 13,755

MICHAEL SHENKER
V.
THE BALTIMORE AND OHIO RAILROAD COM-
PANY, a Corporation, and THE PITTSBURGH E
LAKE ERIE RAILROAD COMPANY, a Corporation
THE BALTIMORE AND OHIO RAILROAD.
COMPANY, Appellant

Appeal From the United States District Court for the
Western District of Pennsylvania.

OPINION OF THE COURT OF APPEALS
(Filed April 11, 1962)

Argued February 21, 1962 |

Before GoopricH, KALODNER and GANEY, Circuit Judges.

By Goopricu, Circuit Judge. |

The plaintiff recovered a judgment against the de-
fendant, The Baltimore and Ohio Railroad (B&O), in a
suit under the Federal Employers’ Liability Act, 45
U.S.C.A. §$51-60. The incident which is the basis of the
plaintiff's complaint took place in a railroad yard at New
Castle, Pennsylvania, where the B&O and The Pittsburgh
& Lake Erie Railroad Company (P&LE) have adjoining
parallel tracks. Each railroad has its own waiting room

in this railroad yard, but only the B&O maintains a ticket

Opinion of the Court of Appeals.

office. Tickets for P&LE passengers are sold at the B&O
ticket window in the B&O station on the B&O side of
these tracks. The plaintiff was a B&O employee whose
duties included wheeling a loaded mail truck across the
B&O tracks to the tracks of the P&LE, and loading the
mail into a P&LE car. On the night in question plaintiff

had brought his loaded truck to the door of the P&LE

mail and baggage car. He claims that the door of this
car stuck and that in endeavoring to force a large bag
through the narrow opening of the car he wrenched his
back and suffered the injuries complained of. Since the
jury found in his favor his version of what —
must be taken to be accurate.

f be court below was not completely honey with the

‘verdict. See 196 F. Supp. 108 (W. D. Pa. 1961). He said
that he agreed “with the defendant that it is difficult to
understand how the jury could find that the narrow open-
ing caused by the defective door created an unreasonable
risk of harm on which to predicate liability. Never-
theless, being familiar with the decisions in this field, he
did not interfere with the jury’s verdict.

Our difficulty comes from one point which the court
passed over rather lightly. He said: ä
“The employer's duty to inspect and to repair
a defective appliance creating an unreasonably un-
safe condition cannot be delegated. In the case at
bar, it was for the P. & L.E. to discharge that duty,
and its negligence in failing to do so was the negli-
gence of the plaintiff’s employer, B. & O., as a matter

of law.”

Our trouble comes in seeing how the negligence of the
P&LE, if any, in having a defective door, became

20 ;
Opinion of the Court of Appeals.

attributable to the B&O as a matter of law. As the judge
himself pointed out in addressing counsel during the

trial of the case: “We have no contract in evidence. All

we know is that the B&O Railroad was serving the PELE

trains by their baggage man.” The car alleged to be de-

fective belonged to P&LE. Nothing appears to show us
that the B&O had any control whatever over the car or

any employees of the P&LE. We do not know that the

B&O became the agent of the P&LE, nor, indeed, as, the

trial court pointed out, anything more than that a B&O |
employee hauled the truck over to the P&LE tracks and
put the bags in the car.

Ik the P&LE was the employer of the B&O in this
kind of a transaction we do not see any basis for attribut-
ing the negligence of the employer. to the employee who
had no notice of the defect and who had no control over
what its “principal” did. As is stated in comment b to sec-
tion 350 of the Second Restatement of Agency:

“The knowledge of another agent or of the prin-

. cipal does not affect the liability of the agent. Thus,

an agent who has no reason to know that the instru-

mentalities which he uses are not suitable for the

work. .. is not liable for harm caused by reason of.
that fact.” Nis 5 |

The Supreme Court decision in Sinkler v Missouri
Pac. R.R., 356 U.S. 326 (1958), is relied upon by the
plaintiff. We think whatever impact that case has upon,
our situation tends to establish liability on the part of

the P&LE and not the B&O, rid

The P&LE was initially joined in this uit. The judge
dismissed the action against it on two grounds: (1) that
no diversity of citizenship was shown; and (2) that there

. x 21
Opinion of the Court of Appeals.

was no employee-employer relationship between the
plaintiff, Shenker, and the P&LE.

To conclude: There was not the slightest evidence
of any actual want of care to its employees on the part
of the B&O; and, second, we see no basis whatever for
ä mme
the plaintiff's employer.

The judgment of the district court will be reversed.
KALODNER, Circuit Judge, dissenting )

I would affirm the judgment of the District Court
entered in favor of the plaintiff pursuant to the jury's /
verdict in his favor. ‘ /

I agree with the District Court’s ho , stated in
its Opinion denying defendant's motion for judgment
n.o.v., that “The evidence . . . was suffici | for the jury
to find with reason that the defective door reated an un-
\ reasonably unsafe condition for an employee whose duty
was to swing heavy mail sacks from a into a mail
car; that it was foreseeabic that this tion might
cause injury to him; and that it was neg to fail to
eliminate the unsafe condition after thereof prior
to the accident”, and that “Furthermore, there was evi-
dence from which the jury could find t the unsafe
condition existed for a period sufficiently long that de-
fendant, B. & O., had constructive notice thereof.” 196
F. Supp. 108. f

On this appeal defendant does not even contend that
the trial judge in his charge to the jury failed to ade-
quately instruct it with respect to the law relating to
any of the aspects or elements of the negligence charged
ee

— . 2 of the Court of 2

not only did the defendant not 2 to the om to

the jury but that in response to the Court’s question,

addressed to trial counsel, “Gentlemen, have I misstated
anything?” defendant’s response was “No, Your Honor.”

The majority premises its reversal ‘of the District
___-Court’s denial of defendant's motion for judgment n. o. v.
on its view that There was not the slightest evidence of
any actual want of care to its employees on the part of

_ the B&O; and, second, we see no basis whatever for

attributing any ‘negligence on * part of om P&LE to
the plaintiff's employer.“

The sum of the majority’ 8 position is that the evi- f

dence failed to establish that defendant. breached a duty
to plaintiff. I disagree.

The record discloses that the P&LE did not maintain
any employees at its Neweastle station; 1 defendant's

employees serviced P&LE trains operating on its tracks |
which stopped at its station;? and plaintiff was assigned

by defendant to load and unload P&LE mail-and baggage

cars. It was during a mail loading operation that plain- -

tiff was injured by reason of a defective door of a P&LE
mail car. Evidence was adduced that P&LE had been
2 advised that the door was defective.

These prineiples are well settled: It is the duty of a
-. pailroad to use reasonable care to furnish its employees

0

with a safe place to work; 2 the standard of care

1. Plaintiff's Interrogatory No. 17 and defendant's

Answer thereto. *

2. Paragraph 4, Stipulation at trial.

3. Bailey v. Central Vermont Ry., 319 U.S. 350, 352
(1943); Sano v. Pennsylvania ** . 282
“F.2d 936, 937 . Cir. 1960).

ary moe 23
Opinion of the Court of Appeals.

must be commensurate to the dangers of the business,
the fact that a railroad does not own, maintain or con-
trol the premises on which its employee m injured in the.
course of his employment does not relieve it of its leg
duty to provide its employees with a safe place to work,
nor does it absolve it from liability for injuries sustained
by its ee because of neste condition of the
premises.5 |

These instances of application of the principles
stated are relevant here: . |

4 railroad switchman was. injured oie the engine

on which he was riding passed over a faulty section of
track which broke causing him to be thrown e
ground. The track in question was. neither owned nor
maintained by the railroad which mployed the switch- -
man. The jury returned a verdict against the employing
railroad. In affirming, the appellate court held that the
absence of the elements of ownership or control of the
premises on which the switchman was injured in the
N course of his émployment did not relieve the employing
railroad of its legal duty to provide him with a safe place,
to work; that the duty the law imposed upon the rail-
road to inspect the tracks over which it moves its trains
imputes to it constructive knowledge of the unsafe .

condition.” Denver and Rio Grande Western Railroad

Company v. 2 293 F. 2d 612, 613 (10 Cir: 1961) :

* 4. Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54.
67. (1943). |

5. Denver and Rio Grande Western Railroad Com-
pany v. Conley, 293 F.2d 612, 613 (10 Cir. 1961); Chicago
Great Western Railway Company v. Casura, 234 F.2d
441, 447 (8 Cir. 1956) ; Beattie v. Elgin, Joliet & Eastern
a Co., 217 F.2d 863, 865 Jl Cir. svete :

—

„„ . ; —

” Opinion of the Court of Appeals.

35 6%%i¹%ù
Sg performing his duties when struck by a defective gate on
| the property of a packing company which the railroad

*
ad ;

served. A jury verdict in favor of the injured employee

against the employing railroad was affirmed even though
it did not own or control the premises where the accident
occurred. ‘Chicago Great Western Railway Company v.
Casura, 234 F. 2d 441, 447 (8 Cir. 1956) :

were railroad’ s hman was injured when in the
course of performing duties assigned to him by his rail-
road employer he slipped on oil or grease on the steel

platform of a coal dumper owned and maintained by the
United States Steel Corporation on its property. A jury
verdict in favor of the injured switchman against the
railroad was affirmed on the ap llate court's holding
that the railroad’s “knowledge, actual or constructive, of
the allegedly dangerous condition of the place where the

accident occurred was a question for the jury.” Beattie
v. Elgin, Joliet and Eastern — E. 217 F.2d 863,
867 (7 Cir. 1955).

In the instant case the majority directed its atten-

tion to the status ageney or otherwise which obtained

or didn't obtain between defendant and P&LE relating

to thé servicing. ~* defendant of P&LE’s facilities, i.e.
mail car. |

8 In my opinion the question of the eats referred to peat

is academic. Assuming arguendo that defendant acted
as a volunteer Good: Samaritan in ‘giving’ neighborly aid
to P&LE in servicing its mail cars and not as a result of
g8Bome contractual arrangement, the duties imposed by
ye law on defendant to provide plaintiff a safe place to work
would not be affected, one: way or the other.

7

2 .,
Opinion of | the Court rt of Aspens.

_Principles or agency adverted to by the majority
play no role nor do they have any impact in the situation
here. Plaintiff's action against defendant is premised
solely on an employer-employee relationship and a.
breach of the duty imposed by that relationship and not
on any principal-agent status.

Assuming arguendo, as the majority did, that there
existed a principal-agent relationship between’ P&LE
and defendant, the impact of the agency principles per-
taining to such relationship on plaintiff’s case would be
subject to the teaching of the Supreme Court that
_ “Plainly an accommodating Scope must be given to the
word ‘agents’ to give vitality to the standard governing
the liability of carriers to their workers injured on the XX
job.” Sinkler v. Missouri Pacific Railroad Co., 356 U.S.

: 326, 330 (1958). In Sinkler.a railroad employee’ s injury

was caused in whole or in part by the-fault of an inde-
pendent contractor performing operational activities of
the carrier. It was nevertheless held that the independent
contractor was an “agent” of the railroad within the
| = of the FELA.

In Sinkler the Supreme Court Kauder said (p. 329) :

However, in interpreting the FELA, we need
not depend upon common-law principles of liability.
. This statute, an avowed departure from the rules of
the common law, ef. Rogers v. Missouri Pacific R.
Co., 352 U.S. 500, 507-509; was a response to the spe-
cial needs of railroad workers who are daily exposed
to the risks inherent in railroad work and are help-
less to provide adequately for their own safety.
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54. The
cost of human injury, an inescapable expense of

Opinion of the Court of Appeals.

railroading, must be borne. by someone, and the

FELA seeks to adjust that expense equitably be-
tween the worker and the carrier. Kernan v. Ameri-

| can Dredging Co. 355 U.S. 426, 431, 438.”

Finally. the ma jority's reversal of the District

Court’s denial of defendant’s motion for judgment n.o.v.
requires reference to the holding in Rogers v. Missouri

＋
7

Pacific R. Co., 352 U.S. 500, 506 (1957) that:

“Under this statute [FELA] the test of a jury case

is simply whether the proofs justify with reason the

conclusion that employer negligence played any

part, even the slightest, in producing the injury or

death for which damages are sought. . Judicial
appraisal of the proofs to determine whether a jury

question is presented is narrowly limited to the

single inquiry whether, with reason,.the conclusion
may be drawn that the negligence of the employer

‘played any part at all in the injury or death.’’6

For the reasons stated I would affirm.

.6. Zegan v. Central Railroad of New Jersey, 266

F.2d 101, 102 (3 Cir. 1959).

Sur Petition for Rehearing.

ON APPEAL |
FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

present: GooprIcH, KALODNER and GANEY, Circuit Judges
JUDGMENT
This cause came on to be heard on the record from
the United States District Court for the WESTERN Dis-
trict of PENNSYLVANIA and was argued by eounsel
on consideration ‘whereof, it is now here ordered
and adjudged by this Court that the judgment of the
said District Court in this case be, and the same is
hereby reversed, with costs.. a
April 11, 1962

*

6 SUR PETITION FOR REHEARING

Present: Bios. Chief Judge, and Goopricu, KALODNER,
STALEY, GANEY and SMITH, Circuit Judges.

After due consideration the petition for rehearing
in the above-entitled case is hereby denied. Biccs, Chief
Judge, and KALODNER, STALEY and SMITH, Circuit Judges,
dissenting.

By THE COURT

GOODRICH

Circuit Judge

Dated: June 1, 1962

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0191%3A2. Public record. Not legal advice.