Brief for the Petitioner — Shenker v. Baltimore & Ohio Railroad

LIBRARY ‘*<:

: JAN 25 1963

‘RT. Up

‘Sepreme Court ofthe Unite Sate

OCTOBER TERM, 1962

MICHAEL SHENKER. Petitioner,

.

THE. BALTIMORE AND OHIO RAILROAD

COMPANY. Respondent.

—— —

On Writ of Cert‘orari to the United States a of

22 Appeal for the Third Circuit.

BRIEF ror PETITIONER

CHARLES ALAN WRIGHT

2500 Rel River Street

Austin 5. Texas

JOHN RUFFALO

510 Mahoning Bank Building

Youngstown Oho

Attorneys for petit. mer

JAMES A WRIGHT

434 Forbes Avenue

Pittsburgh. Pa.

JAMES E McLAUGHLIN

606 Frick Building

Pittsburgh 19. Pa.

JAMES P McARDLE

6806 Frick Building

Pittsburgh 19. Pa.

of unsel

Set eFOo8 CO At ae FR NR TERS «88 488 Cet OF Bhi te OF TT SeURGH Ww Pe

e

¢

+ INDEX

PAGE

Citations to Opinions Below 7 J 1

Jurisdiction ...... . V 1

Questions Presente 2

Statutes Involvue tk 8 na

Statement of the Case 1 e 4

Summary of the Argument . 6

Argument:

I. When a majority of the fades portichiating

vote to grant rehearing en banc, such rehear-

ing should be granted ................:.... 7

II. The Federal Employers’ Liability Act im-

poses on an employer a non-delegable duty to.

exercise reasonable care to furnish its em-

ployees a safe place to work, even when they

are off the employer’s premises, and con-

structive knowledge will be imputed to the

employer of any defect which would have

been discoverable upon inspection ......... 11

Conclusion ...... 1 V . 19

TABLE OF CITATIONS

CASES

Alltmont v. United States, 177 F. 2d 971 (3d Cir.

177 Vc 9

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

| LD 13

Bailey v. Central Vermont Ry., Inc., 319 U.S. 350

Z4ꝙ4ͤ uads shaves deaekeheeaeeenas 12

Beattie v. Elgin, J. & E. R. Co., 217 F.2d 863 (7th

rc seneunons on errr 13, 16

Butz v. Union Pacific R. Co., 120 Utah 185, 233 P.2d =~

3³² 2 PF 15

Table of Cases.

CASES - PAGE

Chesapeake & O. Ry. Co. v. Thomas, 198 F.2d- 783

, et 13

Chicago G. W. Ry: Co. v. Casura, 234 F.2d 441 (8th ;

SS cia cc a deen ke ol ese cs 17

Chicago G. W. Ry. Co. v. Smith, 228 F. 2d 180 (stn

Cir. 1955) JVP 17

Denver & R. G. W. R. Co. v. Conley, 293 F. 20 612

(10th Cir. 19801 ee, 13. 17

Drake Bakeries, Inc. v. Local 50, American Bakery

& Confectionery Workers, 294 F. 2d 399 (2d

Cir. 1961), affirmed 370 U.S. 254 (1962) 10

Ellis v. Union Pacific R. Co., 329 U.S. 649 (1947) .. 12

Harris v. Pennsylvania R. Co., 361 U.S. 15 (1959) 12, 18

Harris v. Pennsylvania R. Co., 168 ‘Ohio St. 582, 156

SE he nes ca ass bacsectascrases 12

Kooker v. Pittsbur h & L. E. R. Co., 258 F. 2d 876

„„ e 13, 14; 18

1 Baltimore and Ohio R. Co., 309 F. 2d 546,

/ 13. 15, 18

Schlueter v. East St. Louis Connecting Ry. Co., 316

Mo. 1266, 296 S.W. 105 0 . . 16

Sinkler v. Missouri Pacific n. co., 356 U.S. 326

ee re 15

‘Terminal R. Ass'n of St. Louis v. n 165 F. 2d

473 (8th Cir. — na ee ae 13

Textile Mills Securities Corp. v. „ of a

Internal Revenue, 314 U.S. 326 (1941) 7

United States v. American-Foreign S.S. Corp., 363

0 « ae 7

Van Horn v. Southern Pacific Co., 141 Cal App.24

528, 297 P.2d 479 (1956) ................... 17

Western. Pacific R. Corp. v. Western Pacific R. Co.,

345 US. 247 (1953) e . 8, 9

i 5 Yi |

f Pd

ui

Statutes and Authorities

STATUTES : ex

28 U.S.C. § 460(e)) enen

A ͤ ˙ e

45 U.S.C. § 1ůII . aes pedoages ..2, 4. 12

f OTHER AUTHORITIES .

Eighth Circuit Rules, Rule 15 ................... 8

H. R. 3498, 79th Cong., ist Seas. 9

H. R. 7124, — Z 9

Louisell & Degnan in American Appel-

; te Comm 32 143 e ‘a

Note, En Banc Procedure in the Federal Courts of

Appeals, 111 U.Pa.L.Rev. 220 (1962) ........ 8, 10

R. C., 51 Harv. L. Rev. 1287 . 10

„

0

Supreme Couto “a the United Stated

NO. 414

OCTOBER TERM, 19622 f

MICHAEL SHENKER, *

4 v.

TIE ‘BALTIMORE AND. OHIO RAILROAD |

COMPANY, 5

On writ of Certiorari to the United States Court of

1 for the Third Cireuit.

BRIEF FOR — |

CITATIONS TO OPINIONS BELOW.

* The opinion of the trial judge, denying defendant's Ba”

motion for judgment notwithstanding the ‘verdict (R.

i. 78-80) is reported at 196 F.Supp. 108. The opinion of the “|

Court of Appeals for the Third Circuit (R. 82-88 ) is

_ Feported at 308 . 44 606. ; we.

\

3 JURISDICTION Ser

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. By order of the Chief

Justice, the time for filing the petition for writ of certio-

rari was extended to ne 14, 1962 (R. 91). ‘Such

_

—

\ 3 — _Btatutes Involved.

.

ition was fled September 5, 1962, and granted Novem-

‘19, 1962 (R. 81). The jurisdiction of this Court is.

in dked under 28 U.. C. 2.

X. 8 *

QUES! ONS PRESENTED

1. Where. only 8 of the eight active judges of a

for its employee who is injured when, in the course of

ier which his employer services

,

The alen provisions involved are 28 U. s. C.

846 (c), and 45 U. S. C. § 51.

28 U.8.C. $46(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 in banc is ordered by a majority of the

circuit judges of the circuit who are in active service.

A court in banc shall consist of all active circuit tees

of the circuit. 7

45 U.S. C. § 51: ae Pen ges en

while engaging in commerce between any of the several

States or Territories c or between any of the States and

0

appeals take part in the decision of a petition

ing, and four of the six vote grant *

forming work on the car and the .

"Statutes Ingolved.

0

Territories or between the District of Columbia 4050 any

_ of the States or Territories, or between the District of

Columbia or any of the States or Territories and. any

foreign 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

.

3 ;

$

—

se

a

5

—

ae

benefit of the surviving widow or husband and children |

of such employee; and, if none, then of such employee’ s

er ; 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 reason

of any defect or insufficiency, due to its negligence, in its 15

cars, engines, appliances, machinery, track, ‘ roadbed,

Works, boats. wharves, or other equipment.

4 Any employee of a carrier, any part of whose Aten

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 shail be considered as entitled to the benefits |

ol this chapter. |

Statement of the Case..

STATEMENT OF THE 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 agairst the Pittsburgh \

and Lake Erie Railroad Company (hereafter P. & L.E.”)

(R. 1). The jurisdiction of the District Court was in-

| voked because the case, arises under the Federal Em-

ployers’ Liability Act,’ “ U.S. C. 51.

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 this point the eastbound

and westbound tracks of the B. & O. are immediately

north of the eastbound and westbound tracks of the P.

& L. E. The B. & O. station is north of the four tracks.

A station of the P. & L.E.\is to the south, between the

two P. & LE. tracks (R. 21). The P. & L.E. station is

unmanned (R. 15). The B. & O. ticket agents sold tickets

at the B. & O. station to P. &L.E. passengers (R. 15).

Buy an arrangement between the two railroads (R. 10),

B. & O. employees would service F. & L. E. trains stopping

at Mahoningtown and running pn P. & L.E. tracks (R.

61-62). Although petitioner was employed by the B. &

O., paid by it, and subject only to the authority of B. & O.

aupervisory employees (R. 29, 46), his duties included

loading and unloading baggage in P. & L.E. trains, as

well as B. & O. trains, and janitor work in both the B. &

O. and the P. & L. E. stations (R. 29, 45),

On Oetober 15, 1956, petitioner wh engaged in

loading mail sacks on a P. & L.E. train. Both he and the

baggage car attendant, a P. & L. E. employee, attempted

to open the door on the P. & L. E. car to its full width

Statement of the Case.

(R. 17), but were unable to open it more than 18 or 24

inches (R. 18, 36-37). The baggage car attendant, a P.

— 2 (R. 63), had reported the defective con-

dition of the door to his superiors, but they had failed to

repair it (R. 17, 26). The mail sacks being loaded were

as large as 31 inches wide and 37 inches deep (R. 14).

The larger sacks filled with mail weighed 80 to 100 pounds

(R. 18). To get these large sacks through the 20 inch

opening in the door, petitioner was compelled to exert

unusual pressure, twisting the bags and endeavoring to

"force them through the small opening. In so doing he

injured his back (R. 18). On subsequent examination,

he was found to have sustained a ruptured intervertebral

disc, which eventually required a laminectomy, and re-

~ gulted in permanent disability (R. 79). |

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 that there was no

diversity to support a common law claim (R. 78). The

jury returned a verdict for petitioner against the B. & O.

for $40,000 (R. 3). Motion for 9 n. o. v. was

denied (R. 78-81). | 7

On appeal by the B. & O., the l of the district.

court was reversed, in an opinion by Judge Goodrich,

with whom Judge Ganey joined. Judge Kalodner dis-

sented with opinion (R. 82-89). Petitioner petitioned for

a rehearing. The petition was denied, per Goodrich and.

Ganey, JJ., with Judges Biggs, Kalodner, Staley, and

Smith dissenting from the denial of rehearing. Judges

Hastie and McLaughlin took no part on the motion for

rehearing (R. 90).

— ofthe .—

I. „

en banc in the courts of appeals is to provide that the

active circuit judges shall determine the major doctrinal

trends of the future for their court. This purpose is

not served if a decision must stand though a majority

of the participating judges believe rehearing en banc

should be granted. Only an overly-literal reading of the

statute, 28 U.S.C. §46(c), can justify such a result,

and past decisions establish that this: statute need not

be read with such a debilitating literalness.

‘IL. The Court of Appeals thought that the issue

was whether the negligence of P. & L.E. could be imputed

to the respondent B. & O. In fact respondent should be

held liable for its own negligence, rather than for the

imputed negligence of e else. Respondent was

under a continuing non-delegable duty to exercise rea-

sonable care to provide a ployee in to work. This duty

exists even though the employee is required to perform

duties on the: premises of someone else. In the exer-

cise of reasonable care, respondent could, by inspection

or otherwise, have known of the defective door which

led to petitioner’s injury. It is chargeable, therefore,

with constructive knowledge of the defect, and with

negligence for failure to exercise reasonable care to

provide petitioner with a safe place to work.

| When s majority’ of the judges participating vote. /

to grant rehearing en banc, such rehearing should be/-

granted.

At the time in nn there were eight judges in

active service on the Court of Appeals for the

Circuit. Six judges participated in decision of the peti-

tion for rehearing en banc. Four judges voted ta grant

the petition. Two judges voted to deny the petition.

On those facts, it was held that the petition was denied,

on the ground that “a majority of the circuit judges-of

the circuit who are in active service” had not voted to

grant the petition, as seemingly required by 28 U.S. C.

846 (e). Such a holding may be supported by the literal

language of the statute, but this is a statute which has

‘not been, and should not be, read literally, when, as here

the result is contrary to the purpose of the statute.

a >

In its first decision upholding the right of the courts °

of appeals to sit en banc, this Court said that it was will-

ing to make a “sacrifice of literalness for common sense.”

Textile Mills Securities Corp. v. Commissioner of Inter-

nal Revenue, 314 U.S. 326, 334 (1941). A similar sacri-

fice is required here to avoid an absurd result. The

evident policy of 28 U.S.C. § 46(c), this Court has said,

is to provide that the active circuit judges shall deter-

mine the major doctrinal trends of the future for their

court. United States v. American-Foreign 8.8. Corp.,

363 U.S. 685, 690 (1960). This purpose is. effectively

thwarted if a decision can stand as the decision of the

court of appeals though four of the six judges who have

8 ine .

Argument.

connidered the matter are dissatisfied with it. What

precedential value would such a decision have? Should

district judges within the circuit follow the decision

when it is apparent on the face of the Federal Reporter

that there is a substantial likelihood that a different re-

sult will be reached in the future if the same question

should come.on before a different panel of the court of

appeals, or even before the full court? Such difficult

questions are avoided if the statute is construed sensibly

to mean that a majority of the participating judges are

to prevail, as is the case with every other matter com-

ing before a federal appellate court. |

This Court has already indicated that § 46 (c) is

not to be read literally, by specifically approving as a

possible practice grant of rehearing en banc by a ma-

jority of the three judges of the original panel. West-

ern Pacific Corp. v. Western Pacific R. Co., 345 U.S.

2247, 261 (1953). This is in fact the practice in at least

one circuit. See Rule 15(e), Eighth Circuit Rules; Note,

En Banc Procedure in the Federal Courts of Appeals;

111 U.Pa.L.Rev. 220. (1962). If, consistent with the

statute, the rull court can delegate to the three judges

af the panel the power to order or refuse rehearing, it

-is equally consistent with the statute for the court to

delegate this power to the six judges who participated

in decision of the motion for rehearing. There are many

reasons—iliness, absence from the circuit, statutory

disqualification—why a judge may take no part in de-

cision on a petition for rehearing. On the view taken

by tke court below, a judge who does not participate iu

any way is counted, in effect, as if he had voted to deny

| rehearing. Suppose, for example, that the proceedings

2

Argument.

in the district court in this case had been conducted by

one of the nonparticipating judges of the court of ap-

peals, sitting in the district court by assignment. There

is an absolute statutory bar against such a judge par-

ticipating in decision of the appeal. 28 U.S.C. § 47. Yet.

under the practice followed below, that judge would be

counted as if he had voted to deny rehearing of the de-

cision reversing his own judgment.

The construction which has been put on the —

sentence of 46 (c) is instructive. In the first legislative

draft of what is now 46 (e), the second sentence read:

A court in banc shall consist of all active judges pres-

ent and available in the circuit.” H.R. 3498, 79th Cong.

ist Sess. In the next draft, H.R. 7124, 79th Cong., 2d

Sess., this language was changed to the form in which

it was adopted, so that it read: “A court in banc shall

consist of all active circuit judges of the circuit.” Yet

this Court has said that the two drafts “did not differ

in any material respect,” Western Pacific R. Corp. v.

| Western Pacific R. Co., 345 U.S. 247, 254 (1953), and the

Third Circuit has held that the second ‘sentence is not

to be read literally, and that it can hear a case en banc

even though one of the judges in active service is away

from the circuit and not participating. Alltmont v.

United States, 177 F.2d 971 3d Cir. 1949). It is incon-

gruous to read the second sentence sensibly, in the face

of legislative history which would seem to suggest that

Congress deliberately excluded such a reading, while at

the same time making a fortress of the dictionary in con-

struing the first sentence of the same statute.

Under the rule in the Alltmont case, if rehearing

—

had been granted here, the case could have been heard

10

Argument.

the absence of Judges Hastie and McLaughlin, and a

vote of four-to-two for petitioner would have reinstated

his judgment. If all eight judges had participated after

rehearing was ordered, and four r judges or

petitioner on the merits, the contrary decision of the

panel would be superseded and his judgment affirmed.

Drake Bakeries, Inc. v. Local 50, American Bakery d

Confectionery Workers, 294 F.2d 399 (2d Cir. 1961),

affirmed 370 U.S. 254 (1962); R. C., 51 Harv.L Rev. 1287

(1931); Note, 111 U.Pa.L.Rev. 220, 229-230 (1962). Yet

he is here held to have lost when four judges voted in

his favor on the petition fpr rehearing. The leading stu-

dents of rehearing practices point to “a constant and

understandable tendency on the part of judges *.* * to

blend the question of granting rehearing with the ques-

tion of correctness of the prior decision.” Louisell &

Degnan, Rehearing in American Appellate Courts, 25

F.R.D. 143, 159 (1960). To the extent that the vote of

tour judges in favor of rehearing reflects, even in part,

a determination by them that the decision of the panel

was wrong and that the judgmert below should have

been ‘affirmed, the situation is indistinguishable from

that presented after rehearing has been granted, where

four votes for petitioner would have resulted in affirm-

ance of the judgment. We do not press that argument,

however, for at a minimum, the vote of the four judges

surely demonstrates their unwillingness to have the de-

cision of the panel, without further consideration, set

the law of the Third Circuit for the future. When a ma-

jority of the participating judges evidence such dissatis-

faction with a decision, the purpose of the rehearing

en banc statute demands that the rehearing be granted,

and the language of the statute is not to the contrary.

ety. 11 :

Argument. .

If it is permissible to construe “all active circuit judges

of the circuit” in the final sentence of 28 U.S.C. 46 (c

as meaning all active circuit judges who are not disquali-

fied or otherwise not participating, a similar construc-

tion is permissible, and required by common sense, in the

preceding sentence of that statute.

‘The Federal Employers’ Liability Act imposes on

an employer a non-delegable duty to exercise reasonable

care to furnish its employees a safe place to work, even

when they are off the employer’s premises, and con-

structive knowledge will be imputed to the employer of

any defect which would have been discoverable upon

inspection.

The issue on the merits in this case is whether a

railroad is liable to its employee where he is injured on

the premises of a third party because a defective condi-

tion on those premises creates an unsafe place to work.

The court below undertook to resolve that issue by con-

sidering whether the negligence of the third party is

attributable to the employer carrier as a matter of law..

It decided that it was not, in the circumstances of this

case, citing as sole authority for its decision the Second

Restatement of Agency. 303 F.2d at 598. Decisions of

this Court, and the courts of appeals, have made it plain

‘that refined concepts of common-law agency have no

place in the solution of the problem.

The question here is not whether the negligence of

a third party can be attributed to the employer, but

whether the employer is itself negligent in breaching its

non-delegable duty to exercise reasonable care to furnish

—

12. ,

Argument.

J, Nd

its e a safe place to work. It is settled that the

Federal Employers’ Liability Act, 45 U.S.C. § 51, imposes

such a duty on the employer, and that the duty is a con-

tinuing one which is not relieved by the fact that the

employee's work at the place in question is fleeting or

infrequent.. Bailey v. Central Vermont Ry., Inc., 319 U.S.

350, 353 (1943). It is settled, too, that the duty con-

tinues even when the carrier 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. Ellis v. Union — R. Co.,

329 U.S. 649 (1947). :

The most recent case from this Court in bent is

Herrie a. 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. He was ordered

out as a member of a wrecking crew to assist in retrack-

ing two cars which had left the tracks of the Nickel |

Plate Railroad. He was injured because of of] on a Nickel

Plute tie. There was no evidence that the Pennsylvania

placed the oil there, or knew of its existence. In the view

of the Ohio Supreme Court, this was enough to defeat

liability : ; ö |

Surely the defendant can hardly be held to the

duty of going over the premises of another railroad

with a fine tooth comb to discover every imperfec-

tion thereon before sending its employees there to

do a job for which they have been trained and where

they might expect to meet conditions to be found in ys

the operation of railroads generally.

168 Ohio St. at 587, 156 N.E.2d at 826. Two dissenters

in this Court took a similar position. 361 U.S. at 27. But

13

Argument.

the majority of this Court held that on these facts the

jury could, with reason, find that employer negligence

played a part in producing the injury, and reinstated

‘Harris's judgment against the Pennsylvania.

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 Penn-

sylvania and thus that the negligence of the Nickel Plate

was attributable 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 the other cir-

cuits, which have held repeatedly that when a

sends its employee to work.ca promises not under the

railroad’s control, it is liable if it fails to exercise

able care to make sure that the employee is given a safe

place to work. Atlafitic Coast Line R. Co. v. Robertson,

214 F.2d 746 (4th Cir. 1954) ; Chesapeake & O. Ry.

Thomas, 198 F.2d 783 (4th Cir. 1952) Payne v.

more and Ohio R. Co., 309 F.2d 546 (6th Cir. 1962);

Kooker v. Pittsburgh & L. F. R. Co., 258 F.2d 876

Cir. 1958) ; Beattie v. Elgin, J. & E. R. Co., 217 F. 2d

(7th Cir, 1954); Terminal R. Ass’n of St. Louis v. Fitz-

john, 165 F.2d 473 (8th Cir. 1948) ; Denver d R. G. W. R.

Co. v. Conley, 203 F.2d 612 (10th Cir. 1961). In the

Terminal Railroad Association case, for example, the

plaintiff was injured while working on premises owned

and controlled by the United States. He was paid by the

railread but worked full time on government property

on a government engine. It was held that he was still an

employee of the railroad, within the Act, and that the

- railroad was liable where conditions on the premises

owned by the government created an unsafe place to

14 . 8 2 a cats

— "Argument.

Vork. An tei Cat Kocher ‘cain ths 5 ag in the |

present: case, occurred. at a point where tracks of the

B. 4 0. parallel tracks of the P. & L.E. Kooker, an em-

ployee of the P. K L.E., E., was walking on a customary path

_ &cross the tracks when he slipped on ice and was injured. _

The Sixth Circuit described evidence from which the

: could have found that Kooker slipped on a portion

of the path under the dominion of the P. & L. E., but went

on to say that this was not necessary:

But the duty of employer to provide his serv-

’ ants with a safe p to work is not so circum-

veribed and there are many federal cases which hold

_ that the obligation of an employer fnay extend be-

vond its premises and to property which third per-

sons have a primary o ligation to maintain.

ca 258 F.2d at 878. 5

Any othir rule would. ddprive railroad — of .

: much of the protection which the Act purports to give.

them. On the view taken by the Third Circuit, an em-

ployee required to work on the line of another carrier,

ceould not recover under the Act from the, other ‘drrier,

-. because he ig not an employee of that carrier. He could

not recover from his own empleyer in the absence of

some showing that the second carrier was an agent of

the employer. It is true, as respondent has suggested,

that such an employee would still have a common law.

right of action against the other carrier, but the Federal

common law remedies are not — protection for

e employees.

The fatal flaw in the agency 3 made by the

XY

~

_ °» Employers’ Liability Act ig premised on a belief that

Third Circuit has been wellexposed by the Utah Su-

wee Court:

\

4 i

\

U

me me ee 15

Argument.

: .. : \

What the employee ‘wants and needs is a rea-

sonably safe place to perforin his duties. He is not

concerned with and indeed cannot know the techni-

- calities of ownership, rental, lease or reciprocal:

exchange of facilities of an involved railroad sys-

tem. For him ‘td have the assurance of safety in

some phases of his work and to be exposed to danger

at his on risk and responsibility in others would be.

contrary to rekson. It might even be argued that

he could better fend for himself on the master’s .

premises where he was acquainted with his sur-

rounding 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 m of provid-.

ing a sife plate to work. | :

ute v. Union Pacific. R. Co., 120 Utah 185, 193, 233

P.2d 332, 336 (1951). The Sixth Circuit has recently ex-

pressed a similar view:

Under FELA the employer is the one owing

tbe Wuty to the emplopee. The employee need not

look elsewhere for his protection. He has a right

under FELA to rely on his employer and none

other. When the employer delegates its duty, or

abdicates its control, the employer takes the risk,

= the employee.

Payne v. Baltimore and Ohio R. Co., 309 F.2d

546, 549 (6th Cir. 1962) ö a

a In Sinkler v. Missouri Pacific R. Co., 356 US. 326

(1958), this Court refused to permit an employer to

5

16

Argument.

—

on: avoid its — ae the Act by engaging ‘am

other railroad to perform part of its work. The deci-

Aion below would permit avoidance of responsibility by

sending the employees to work on another railroad.

Tue sound view, amply supported by the authorities.

already cited, is that the duty of the employer is tbe

same when he requires his employee to work on the

premises of another as it is when the employee is work‘

ing on the employer s premises. This duty is one of rea-

sonable ¢are, but it is settled in the cases that construc-

tive knowledge will be imputed to the employer, and

/ thus want of reasonable care found, if the defeet on the

premises to which the employee is sent would have been

discoverable upon inspection. The case most frequently

cited for this proposition is Beattie v. Elgin, J. d E. R.

Co., 217 F. 2d 863, 886 (7th Cir. 3 where * court

sald; grey 3

Inasmuch as plaintiff at the time of the nection ö

was in a place where his assigned duties required

him to be, defendant on the issue of ee he

chargeable with knowledge of the conditions ich

in the exercise of reasonable care it could have

ascertained. |

This is not, however, the only case nor even the earliest

case in point. In Schlueter v. East St. Louis Connecting

Ry. Co., 316 Mo.. 1266, 1282, 296 S.W. 105, 112 (1927),

many cases are cited and discussed in support of the ——

* proposition that a railroad company which runs its en-

gines and trains over tracks owned by another company

is bound to know and to see that those tracks are in a

5 asonably safe condition for use by its own employees,

and that constructive a of the defective track |

8

—

17

Argument. :

writ be attributed to the. employer when the pare wren

shows that the employer should; or could by the exercise

ol ordinary care, have ‘known of the defective condition.

A state court, in Van Horn v. Southern Pacific Co., 141

Cal.App.2d 528, 297 P.2d 479, 481-482 (1956), relied on

the Beattie case, above, for the proposition that re-

spondent had the duty to inspect the pathway and to

warn appeliant of any dangerous condition thereon of

which. respondent had knowledge, either actual or con-

structive.” In Chicago G. W. Ry. Co. v. Casura, 234 F. 2d

441, 448 (8th Cir. 1956), the court recognized a duty to

inspect the premises to which an employee is sent, and

| said that a railroad must use “ordinary care to discover ;

the unsafeness of the place in which plaintiff is required

to work and to use.ordinary care to have it made into a.

reasonably safe place.“ To the same effect see Chicago

G. W. Ry. Co. v. Smith, 228 F.2d 180, 184 (8th Cir. 1955),

and Denver d R. G. W. R. Co. v. — 613

L. 0th Cir. 1961).

The tailure of the door to open more than two feet,

the defect which caused petitioner’s injury, was in fact

known to the P. & L.E. and thus could, by inspection.

have beén discovered by the respondent B. & O. Just

before petitioner was injured, he talked about the’ door

with the P. & L. E. baggageman inside the car he was

loading. The baggageman told him that he had earlier

reported the defective condition of the door to his su-

periors, and that they had failed to repair it (R. 17, 26 2

. Responie nt has: argued heretofore that the rule

which we have described is applicable only where the

defect away from the employer s premises is of a cus-

tomary. and continuous condition, and does not apply

18

| | 8

where the employee is injured by a vient or unusual

defect. There is no such rule. Surely the grease on the

tie which caused Henry Harrie to fall was not à cu

tomary and continuous condition. Indeed the evidence

was very slim on which it was found that there was

grease on the tie at all. Yet Harris was permitted to

recover. Harris v. Pennsylvania R. Co., 361 U.S. 15

(1959). It is beyond belief that the ice and snow. on

_ which Donald Kooker slipped was a customary and con-

tinuous condition, but he too was allowed to recover.

Kooker v. Pittsburgh & L. I. R. Co., 258 F.2d 876 (C. A.

6th, 1958). The accumulation of ashes which caused the

derailment in which Ralph Payne died was caused by

rain during the night preceding the accident. Payne v.

Baltimore and Ohio R. Co., 309 F.2d 546, 548 (6th Cir.

1962).. The length of time the defect has existed is a

factor which the jury will consider in determining

whether the employer could, with reasonable care, have

discovered it, but that is all it is. Here the jury has con-

sidered the matter and determined that res dent

should, in the exercise of reasonable care, hade been

aware of the defective door which led to petitioner's in-

juries. Respondent is, therefore, liable, whether or not on

some nicety of agency law the actual knowledge of the

P. & LE. ‘can be imputed directly to the B & O.

: ar 19

Conclusion.

CONCLUSION

For the reasons stated, the judgment of the court

of appeals should be reversed, either with directions to

reinstate the judgment of the trial court for petitioner.

“ Te

Respectfully submitted,

CHARLEs ALAN WRIGHT

2500 Red River Street

Austin 5 Texas

JOHN Rurr ALM

510 Mahoning Bank Building

Youngstown, Ohio

Attorneys for Petitioner

JaMEs A. WRIGHT

434 Forbes Avenue

Pittsburgh 28 Pa.

James E. MCLAUGHLIN

606 Frick Building

Pittsburgh 19 Pa.

JAMEs P. McARDLE

606 Frick Building

Pittsburgh 19 Pa.

Of Counsel