Petition for Writ of Certiorari — Scarborough v. Pennsylvania Railroad

Supreme Court of the United States

Term, 1945.

No.9 9D. .

ERNEST E. SCARBOROUGH,

Petitioner,

vs.

PENNSYLVANTA RAILROAD COMPANY,

a Corporation,

Reescndeat,

SJ

PETITION FOR CERTIORARI TO THE UNITED.

STATES CIRCUIT COURT OF APPEALS FOR —

THE THIRD CIRCUIT AND BRIEF IN SUPPORT as

THEREOF. RS

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I. LOUIS RUBIN and ERE

B. NATHANIEL RICHTER, © >

510 North American Bhig., ve

Philadelphia 7, Pa., etek:

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' Attorneys for Petitioner.

Martin & Lyle, 302 Penfield Bids. Phila, Pa : .

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TABLE OF CONTENTS.

PAGE

Petition for Certiorari to the United States Cirenit

Court of Appeals for the Third Cireuit.......... 1

gens soi se Shee asap RET Oe Pd ae RE at 2

I neon aha ween ue es 2

NNT IID ic dn el oo oo ec gai ee 2

Constitution and Statute Involved .................. 3

ee a CREE ae ag 7

Specifications of Error to he oo Ete pee ere 8

Reasons for Granting of Writ ...................... 8

NOE. Sibi cio LcOugsercin civcsstak Ck eo 9

ON gh ERE UN RO UE eae Tae rs EN 10

EIT MG nee ee let Ay ee 10

'. The Court below erred in holding there was no

evidence of negligence in failing to supply ade-

quate scraping tools or in the eonduet of the

Plaintiff’s fellow servants ................... 11

(a) Appliances Tnadequate ................ 11

(b) Fellow Emplove Negligent ............ 15

Il. The Court Below erroneously ruled in effect,

that the Petitioner had assumed the risk of his

employment and was therehy completely barred

cone a ETRE YE TN a gta 18

TIT. The Plaintiff was entitled to a Trial by Jurv... 20

ee ERE L EE Ete ROR Mpe sk TRC SEN iy 22

. gs BI RE AMO age FIG SOP ay Bee

TABLE OF CONTENTS

TABLE OF CASES CITED.

SE Se cecitan vc R.0s TUROA SD EKERE TESS QO eS 8, 10, 12, 21

Balington v. Yellow Taxi Corp., 250 N. Y. 14-1928....

Blair vs. B. & O. R. R. Co., 323 U.S. 600... .8, 10, 12, 15, 17

Chieaco & N. W. R. R. Co. v. Bowers, 241 U.S. Gre .<,

Chicago, ete., Ry. v. Krayenbuhl, 65 Neb. R89 (1902)..

Hill v. Winsor, 118 Mass. 251 (1875).......-.--- 00055

10

12

13

Tl. C. Ry. Co. v. Skaggs, 36 S. Ct. 249 (1915). ..15, 17, 19

Ives vs. Grand Trunk R. R. Co., 35 Fed. 176, Affirmed

OS By eee Cee eee ET LT Ee, REESE L 21

Jones vs. Kans. City, So. Ry. Co., 145 S. W. 2d 969,

Ark, (IQEL) 00... cece cece ene n ces cn ene encens 19

Justices vs. Murray, (N. Y. 1870), 9 Wall. 278; 19 L.

Te oe ae in PEERED ADS CAS SS ORS CANES SR 21

Pederson vs. D. & W. Ry. Co., 229 U. S. 146......... 8

In re: Polemus 3 Q. B. 560 (1921). ......-- 6 eee eee ees 13

Reynolds v. Texas & P. Ry. Co., 37 La. Ann. 694 (1885) 14

Robostelli vs. N. Y. R. Co., (C.C.A. N. Y. 1888), 33

NM SPO aay cata cas MARSASRHRAAOA 20

Searhborouch vs. Pennsylvania Railroad Company, 154

Pa. Sup. 129 (1944) 2.2... cece eee ee eee eee eens 4

Sweeting v. P. R. R. Co., 142 Fed. 2d. 611, 8rd Cir.... 18

Talleren v. Amoskeag Mfg. Co., 133 Atl. 4 (1926)

Oe ee Fe ea Shakes KMS TERO ESA ED EROS 13

Tennant vs. Peoria & P. V. Ry. Co., 321 U. S. 29...... 8, 10

Tiller vs. Atlantie Coast Line, 318 U. S. 54.......+-+> 19

Union Pacific Railroad Co. vs. Hadley, 246 U. S. 330,

332, 333, 38 S. Ct. 318, 319, 62 L. Ed. oe er 17

TABLE OF CONTENTS

TABLE OF AUTHORITIES.

PAGE

Corpus Juris, Master & Servant, p. 1134, See. 1326.... 15

Prosser on Torts, 1941, page 508.................... 12

GN ENS MUU ca cakes uvabetccne tats 12

Prosser on Torts, pawes 222, 223 ............00.cee 13

PROOUOT GU TOPOH, PAMOE TEL, SES ws s cc cee cee acanes 13

ND es IE won FR hw sdk eA david cacao 15

Mostatement of Torée, Hee, BOL... cece caaans 12

AG OE OTA: TU, TPE iin ic ava vetin vances 13

Restatement of Torts, Sec. 433, Com. (e) ............ 13

Restatement of Torts, Secs. 292, 293 ............... 14

Restatement of Torts, Sec. 432, Com. (¢) ............ 14

TABLE OF STATUTES.

Federal Employers Liability Act as amended (45

ia RP ee veer er rire aes oe.

Judicial Code, Section 240 (a), Amended by Act of

February 13, 1925; 28 U.S.C.A., See. 347 (a)...... 2

Seventh Amendment to Constitution of United States 3

we IR ont el tei a PO Seen

—— sa EPA ee RAAT LR St eT BL I

IN THE

SUPREME COURT OF THE UNITED STATES

Ernest E. Scarsorouca,

Petitioner,

vs.

PENNSYLVANIA Rartroap Company,

a Corporation,

Respondent.

PETITION FOR CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE

THIRD CIRCUIT.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Ernest E. Scarborough, by his attorneys, prays that a

writ of certiorari issue to review the judgment of the United

States Circuit Court of Appeals for the Third Circuit en-

tered in the above entitled case on May 24, 1945.

“=

ee ey SESE GURY,

oda SAS

OPINIONS BELOW.

The opinion of the United States District Court for the

Eastern District of Pennsylvania is not reported.

The opinion of the United States Circuit Court of Ap-

peals (R. 67) is reported in 149 Fed. 2d, 636.

Oe

JURISDICTION.

The judgment of the Circuit Court of Appeals was en-

tered on May 24, 1945 (R. 67). The jurisdiction of this

Court is involved under Section 240 (a) of the Judicial

Code as amended by the Act of February 13, 1925; 28

U.S.C.A., Sec. 347 (a).

eel

QUESTIONS PRESENTED.

1. Whether the Third United States Circuit Court of

Appeals erred in holding there was no issue of fact for the

jury’s consideration as to whether Respondent complied

with its common-law and statutory duty to provide Peti-

tioner with reasonably safe and sufficient tools and appli-

ances with which to perform his work?

2. Whether the Third United States Circuit Court of

Appeals erred in holding there was no issue of fact for the

jury’s consideration as to whether Respondent complied

with its common-law and statutory duty to provide Peti-

tioner with reasonably sufficient and skillful fellow servants

to perform the work?

- eee ee ES Bh eemmtieadiiahe . —EEOOoeee

| .

oe

3. Whether the Third United States Circuit Court of

Appeals erred in holding there was no issue of fact for the

jury’s consideration as to whether Respondent was negli-

gent in that the Petitioner’s fellow servants failed to prop-

erly and adequately remove the rust from the beam at the

point where the lighting fixture was to be attached by the

Petitioner?

CONSTITUTION AND STATUTE INVOLVED.

The Seventh Amendment to the Constitution of the

United States which in its pertinent parts provides:

‘In suits at common law ... the right of trial by

jury shall be preserved, and no fact tried by a jury

shall be otherwise re-examined in any court of the

United States, than according to the rules of common

law.”’

The Federal Employers Liability Act as amended (45

U.S.C. 51) which provides in part:

‘‘Every common carrier by railroad . . . shall be

liable in damages to any person suffering injury while

employed by such carrier in such commerce .. . for

such injury or death resulting in whole or in part from

the negligence of any of the officers, agents or em-

ployees of such carrier or by reason of any defect or

insufficiency, due to its negligence in its cars, engines,

appliances, machinery, track, roadbed, works, boats,

wharves, or other equipment.”’

GES READE

ENOTES SMP ALS ITS TPT APPL SOT ART se

8 GAAS AAOR RECO EEO mecsoirs “eS Y

4

STATEMENT OF THE FACTS.

This was an action brought by Ernest E. Scarborough

under the Federal Employers Liability Act (45 U.S.C.A,,

Sec. 51, et seq.), and its amendment of 1939, for damages

suffered by reason of injury to him on April 21st, 1941,

while engaged in interstate commerce in the employ of the

Pennsylvania Railroad Company.

The case, after issue joined, was tried before the Hon.

George A. Welsh, presiding in Philadelphia for the Eastern

District of Pennsylvania, and a jury. At the conclusion of

the petitioner’s evidence, the respondent moved for binding

instructions in favor of the respondent under Rule 50 of the

Rules of Civil Procedure; the motion was granted, with ex-

ception thereto, taken by the petitioner.

The petitioner appeals to this Court from judgment en-

tered by the Court below on November 27th, 1944, which

provided as follows:

‘Granting judgment for defendant with costs’’ as a di-

rected verdict at the request of the defendant.

Ernest E. Searborough began to work for the Pennsyl-

vania Railroad Company in 1918 and worked continuously

for it up to April 21, 1941, the date of the accident (R. 9).

He is married and has two sons and lives in Andalusia,

Bucks County, Pennsylvania (R. 9). As a result of the

accident he was away from his employment until Septem-

ber, 1941 (R. 35).

He is a switchman employed in the Signal Department

and, in the course of his duties, installs electric fixtures

(R. 10). At the time of the accident, he was engaged in

interstate commerce. Scarborough vs. Pennsylvania Rail-

road Company, 154 Pa. Sup. 129 (1944).

On April 21, 1941, as for several days previous, the plain-

tiff had been working with Underdown and McLaughlin,

two fellow-employees, renewing the station lighting fixtures

5

at the West-bound station at Bryn Mawr, Pennsylvania (R.

13), wnder a foreman named Frankenfield (R. 10). The

petitioner merely acted as leader among the three men doing

the actual work (R. 10), i.e., Scarborough, Underdown and

McLaughlin.

The men were sent to this station where they were sup-

posed to remove all the old cable and light fixtures, clean

the metal beam to which the cable was attached, of all rust,

and reinstall new cable and lighting fixtures (R. 14). On

the day in question, there were three fixtures that were to

be renewed in toto, as above described (R. 11).

The men arrived by train at 9:00 A. M., at Bryn Mawr.

The railroad delivered by truck the materials, appliances,

supplies and the tools with which to perform the job (R. 13).

The tools necessary for this job were supposed to be

selected and designated by the foreman, Frankenfield (R.

16, 17). Furthermore, the inspector who ordered the job

done originally, knew what tools and supplies the job re-

quired (R. 15).

An examination of the tool box delivered to the men on

April 21, 1941, by the respondent (R. 13), revealed that

there was no wire brush (R. 16), nor scraper, the usual

tools for cleaning or scraping rust, in it (R. 14, 15), nor

any other tool for that purpose.

An absolute prerequisite to the rewiring of these electric

fixtures was, that the beam be cleaned and scraped free of

all rust so as to prevent quick deterioration of the new fix-

tures (R. 14, 16, 17, 49, 50).

During the morning of April 21, 1941, all three men had

worked at removing the old wire on lights 1 and 2, cleaned

the girder over those two lights of rust and otherwise pre-

pared those two lights for the hanging of fixtures on them.

In addition, the cable had been strung over the girders from

the No. 2 light to the No. 3 light, but it had not yet been

put in place, as the old wire had not yet been taken down

from No. 3 light, nor had the beam as yet been cleaned of

rust around that light (R. 22, 23).

SRP I ENG

ERITREA RELI OIL LEE NMEA NY OES

In cleaning the beam around No. 1 and No. 2 lights, the

men had used an old broom and some waste found by the

petitioner in a nearby tower (R. 14), because the usual sharp

edge or cutting tools for the removal of rust had either not

been ordered by Frankenfield, their foreman, or the inspec-

tor or the maintenance and supply departments had failed

to ship them (R. 14), if ordered.

In the cleaning of the beam of rust around No. 1 and

No. 2 lights, the men all used goggles (R. 18), supplied by

the railroad for scraping operations as directed by Section

P of Rule 8651 for eye protection (R. 62).

In the afternoon the petitioner went to No. 1 and No. 2

lights and personally hung the fixtures on them because of

the graver responsibility involved in that work and the

danger of damage to railroad property if they were no‘

properly spliced into place (R. 18).

While hanging the fixtures, 1 and 2, after the beam near

them had been cleaned of rust, Scarborough did not wear

his goggles as there is generally no eye hazard in that work

(R. 21). Nothing untoward happened while Scarborough

hung fixtures Nos. 1 and 2.

In the afternoon, while Scarborough hung the fixtures

on No. 1 and No. 2 lights, Underdown and McLaughlin un-

dertook to remove the old cable running from No. 2 to

No. 3 and to clean the beam around No. 3 of all rust, and

otherwise prepare No. 3 light for the petitioner to come over

to later and there hang its light fixture (R. 22, 47).

The petitioner spliced the wires for the fixtures on No. 3

and was putting the cover over the receptacle box, when

by that slight simple operation, rust and dirt were dis-

lodged from the supposedly previously cleaned beam, and

some particles went into his eye (R. 22).

The petitioner was not wearing his goggles during this

operation, for the same reason that he did not wear them

when performing the similar operation at No. 1 and No. 2,

namely that he thought his fellow-employees had properly

cleaned the beam of all scaly rust (R. 23).

Not only did the dirt and rust come down on the peti-

—

7

tioner’s face and some into his eye, but some of it in flakes

was still above the cable and on the girder above the box

(R. 22) after the accident.

The petitioner immediately complained to a fellow-em-

ployee about the occurrence as he descended from the ladder

(R. 25). As a result of the lodging of foreign particles in

the petitioner’s eye, infection quickly set in and he has per-

manently and totally lost the sight of his right eye (R. 32).

Petitioner’s Complaint (R. 4) averred insufficiency of

tools and appliances with which to do the work; inadequate

help and the negligence of fellow-employees in failing to

properly remove the rust from the beam or, to the alterna-

tive, to warn the Petitioner thereof.

At the trial the Respondent moved for and was granted a

directed verdict at the close of the Petitioner’s case.

The Petitioner appealed to the Third United States Cir-

cuit Court of Appeals at Philadelphia which, per curiam,

affirmed the action of the trial judge, without discussion of

the issues.

By this action, the Cireuit Court affirmed the ruling be-

low, that the evidence on whether the master performed its

common-law and statutory duty of supplying adequate and

proper tools and appliances and whether the petitioner’s

fellow-employees were guilty of actionable negligence was

not sufficient to justify submission as issues of fact to the

jury.

Furthermore, it affirmed the rulings thereon made by the

trial judge, who in commenting on his ruling, clearly showed

that he based it on (1) an erroneous understanding of the

effect of Petitioner’s contributory negligence (if any), and

(2) a wrongful application of the doctrine of assumption of

risk which had been removed as a defense by the Amend-

ment of 1939 prior to the occurrence of this accident (R.

58-62).

es

SPECIFICATIONS OF ERROR TO BE URGED.

1. In entering judgment for Respondent.

2. In failing to reverse the Trial Court’s order granting

judgment for the Respondent.

—

REASONS FOR GRANTING OF WRIT.

1. Petitioner’s Constitutional guarantee of trial by jury

has been violated.

2. The decision of the United States Circuit Court of

Appeals (Third) is in direct conflict with the decisions of

this Court, as expressed in Blair vs. B. € 0. R. R. Co., 323

U. S. 600; Bailey, Admx. vs. Central of Vermont, 319 U. S.

350; Pederson vs. D. € W. Ry. Co., 229 U. S. 146; Tennant

vs. Peoria & P. V. Ry. Co., 321 U. S. 29.

3. This is the first case presented to the Court for inter-

pretation of the Federal Employers Liability Act after the

Amendment of 1939 withdrawing assumption of risk as &

defense as it applies to non-operating railroad employees,

who by the other Amendment of 1939 have had withdrawn

the protection of local workmen’s compensation laws and

whose causes of action will in each instance be predicated

upon the sufficiency of the evidence to establish negligence

(a) in that the railroad failed to provide a safe place to

work or to supply proper and adequate tools, appliances

_ and men for the work to be done or (b) that a fellow-

employee was careless. .

CONCLUSION.

The writ should be granted.

Respectfully submitted,

ERNEST E. SCARBOROUGH,

By B. NATHANIEL RICHTER and

I. LOUIS RUBIN,

Attorneys for Petitioner.

10

BRIEF.

ARGUMENT.

Non-operating employes most frequently sustain injury

by acts of omission rather than commission. Accidents oc-

cur because the railroad fails to supply these employes with

a safe place to work, proper appliances, adequate help, or

because of the non-performance of a duty by a fellow em-

ploye. It is only the occasional case where one of this class

of employes can point to a specific act of commission as the

efficient cause of injury. Even in that exceptional instance,

it is usually merged with other acts of omission.

This Court, in Bailey v. Central Vt. Ry., 319 U. 8S. 35,

Tennant v. Peoria & P. U. Railway Co., 321 U. S. 29, and

Blair v. B. & O. R.'R. Co., 323 U. S. 600, has held that

whether these acts of omission constitute negligence is ex-

clusively for jury determination.

Nevertheless, trial courts are troubled again and again

by that part of the decision in Chicago & N. W.'R. R. Co.

v. Bowers, 241 U. S. 470, which we have herein italicized.

‘The rule of law is: that the employer is under a

duty to exercise ordinary care to supply machinery and

appliances reasonably safe and suitable for the use of

the employe, but it is not required to furnish the latest,

best and safest appliances, provided those m use are

reasonably safe and suitable.’’ (Italics ours.)

This last phrase is frequently interpreted below as mean-

ing that that issue is one of law rather than of fact. Evi-

dence to establish the proper tool, the safe procedure, and

the manpower needed for the job has therefore been re-

peatedly excluded.

1l

Despite the BLAIR decision, supra, there have since been

three decisions in state appellate courts as well as several

in the United States District Courts so ruling. It was so

ruled in the instant case.

If the thousands of non-operating employes now embraced

by the Federal Employers Liability Act are to be benefited

by the 1939 amendment eliminating assumption of risk in

all its corollary phases as a defense, and if they are to be

provided with the superior protection intended by the Fed-

eral Employers Liability Act, a directive in unmistakable

language must issue from this Court to those below so

stating. *

I. THE COURT BELOW ERRED IN HOLDING THERE

WAS NO EVIDENCE OF NEGLIGENCE IN FAIL-

ING TO SUPPLY ADEQUATE SCRAPING TOOLS

OR IN THE CONDUCT OF THE PLAINTIFF'S

FELLOW SERVANTS.

(a) Appliances Inadequate.

The Petitioner herein contends that the evidence estab-

lished that the defendant, by its foreman, Frankenfield,

failed to order the tools necessary to perform the desig-

nated task, or, if Frankenfield did order the necessary tools,

then the supply department failed to include tools for clean-

ing the beams of rust in the shipment it sent by truck to

this job.

The Petitioner and the others came to the job by train.

The usual practice was to have all supplies, material and

tools waiting for the men when they arrived. No tools for

scraping the rust were included in the supplies. So im-

portant was it to clean the beams of rust before putting in

the new cable that the petitioner went to a nearby tower to

see if he could find something with which to remove the

SPESB IN

12

rust. He found an old broom and some waste and decided

to try to make them do.

It is elementary hornbook law that even at common law,

and before the Employers Liability Cases, a master had

always been under a duty to use reasonable care to provide

his servants reasonably safe appliances, tools and equip-

ment with which to work. Prosser on Torts, 1941, page 508.

Quite beyond dispute, also, is the recognition of the con-

tinuance of the duty to provide reasonable tools for the .

work performed, under the Federal Employers Liability

Acts. Blair v. B € O R. R. Co., 323 U. 8. 600; Prosser on

Torts, page 508; along with the duty to use reasonable care

to provide a safe place to work. Bailey vs. Central Vt. Ry.,

319 U. S. 350 (1943) ; 45 U.S.C.A. 51, paragraph 309.

The sole ground for contention here, as always, regarding

the propriety of imposing liability under the rule requiring

a master to provide reasonable tools, springs from the ever

elusive character of the duty to use ‘‘reasonable’’ care.

Wisely, the Courts have always eschewed arbitrary, rigid

or mechanical standards for determining the existence of

negligence, and have declined to make any one factor con-

clusive of the presence or absence of ‘‘due care”’. Instead,

Courts have approached each negligence case on its own

merits, weighing factor against factor.

The essential aim of the Courts’ evaluation of particular

circumstances in particular cases has been, and is, to deter-

mine whether the actor’s conduct is of sufficient value and

moment to justify the particular risks to which the conduct

gives rise. Tf the risks outweigh the utility of the conduct,

if the ‘game is not worth the candle’’, the actor has not

exercised ‘‘due eare’’. Prosser on Torts, np, 222, and cases

there cited: Restatement of Torts, Sec. 291; Chicaqo, etc.,

Ry. v. Krayenbuhl, 65 Neb. 889 (1902). Negligence is

‘relative to the need and the oceasion’’, Cardozo, C.J. in

Balington v. Yellow Taxi Corp., 250 N. Y. 14—1928; and is -|

13

determined by balancing the risk of harm against the utility

of the actor’s conduct. Prosser, pp. 222, 223.

Given conduct whose risks outweigh its utility, it matters

not that the precise way in which harm occurs is unforesee-

able, Hill v. Winsor, 118 Mass. 251 (1875) ; In re: Polemus

3 Q. B. 560 (1921) Restatement of Torts, 281, illustration

one; Sec. 433 com. (e), 435; that the extent of the harm is

not foreseeable ; Restatement of Torts, 281, illustration one

and Sec. 433, com. (e); that the precise nature of the harm

is not foreseeable; In re: Polemus 3 Q. B. 560 (1921) ; nor

indeed that the harm itself was not foreseeable, or prob-

able, Prosser on Torts, pp. 221, 222, and cases in foot-

note 13.

As was said in Tallgren v. Amoskeag Mfg. Co., 133 Atl.

4 (1926) N. HL:

“‘Danger consists in the risk of harm as well as the

likelihood of it, and a danger calling for anticipation

need not be of more probable occurrence than less. If

there is some probability of harm sufficiently serious

that ordinary men would take precautions to avoid it,

then failure to do so is negligence. That the danger

will more probably than otherwise not be encountered

on a particular occasion does not dispense with the

exercise of care.”’

To this same effect, see Sweeting v. P. R. R. Co., 142

Fed. 2d 611, 3rd Cir.

The extent of the chance that harm will result, the extent

of the harm that may be occasioned, if any results at all,

the number of persons endangered, the value put by society

and the law upon the interests imperiled, and the ability

of the actor to carry on his activity in another and less

dangerous way, these are all factors to be weighed against

the value of the actorés conduct and the likelihood of the

CPE Ve RIE OF me ae oF

14

realization of that value. Restatement of Torts, Sec. 292,

293.

It is submitted that judged by these standards, the fail-

ure of respondent to supply the workmen in this case with

a wire brush was unreasonable. No claim is advanced by

respondent that its conduct in failing to provide the brushes

involved any utility or benefit to the company. Indeed, it

is conceded that respondent, although failing to provide

them, had such brushes available and regarded their use as

beneficial to its own interests. The only possible utility in

failing to provide the brushes would be to permit respondent

to indulge in indifference. On the other hand, failure to

provide the brushes added to the peril that the eyes of any

of three employes might be seriously hurt.

Nor is it of moment that rust specks might have entered

petitioner’s eyes anyway; Reynolds v. Texas & P. Ry. Co.,

87 La. Ann. 694 (1885); Restatement of Torts, Sec. 482

Com. c. It is enough that respondent’s failure to provide

the brushes materially bore on the result. Id. Neither is

it significant, as contended by respondent, that it usually

supplied the brushes only in order to facilitate the em-

ployer’s work and better to paint the iron work. The ques-

tion of respondent’s negligence does not turn on why tt

chose in the past td supply the brushes. Even if it had

never supplied brushes for the purpose of protecting its

employes, the question is whether in the exercise of reason-

able care the respondent was not bound to provide the

brushes for their benefit. It is submitted that on balancing

the risks inherent in failure to supply the brushes as against

the possible utility therein, reasonable men would concede

the ‘‘eame was not worth the eandle’’.

In the instant case, petitioner was lawfully on the prem-

ises as an employe. Respondent knew its employes were to

work on rust, and yet failed to provide brushes which were

not onlv inexpensive, but readily available. Under such cir-

cumstances, it would seem that the risks inherent in the

failure to provide the brushes were far out of proportion

15

to any utility to be found in respondent’s conduct, and that

it was clearly negligent.

But even assuming, pro arguendo, that reasonable men

might differ on whether the respondent exercised reasonable

care, despite the failure to provide the brushes, it is sub-

mitted that, at least, a jury issue has been made out, en-

titling petitioner to go to the jury, and that the jury should

have been permitted to decide if failure to provide the

brushes was negligence. There is well established authority

that it is generally a question for the jury whether an em-

ployer is negligent in failing to provide suitable tools

and appliances: Corpus Juris, Master & Servant, p. 1134,

Sec. 1326; and cases cited in footnotes 42 and 43 thereto.

In the case of Blair v. B. d O. R. R. Co., supra, the

railroad actually provided some tool with which to perform

the designated task. The Court held, that it was for the

jury to say whether that tool was adequate performance of

its obligation. In our case, therefore, a fortiori, it should

be for the jury, where the railroad supplied no tool at all

with which to perform a task which it specifically directed

the petitioner and fellow employes to do.

(b) Fellow Employe Negligent.

Whatever the common law on the subject, it is now well

established that an employe of a carrier may recover from

the latter for harm suffered because of the negligence of

fellow servants. Prosser on Torts, p. 546 and cases there

cited; Ill. C. Ry. Co. v. Skaggs, 36 S. Ct. 249 (1915).

Should we assume, pro arguendo, that those entrusted

with removing the rust over light No. III had been provided

with the necessary means to satisfy the legal requirements,

the evidence reveals that as soon as Scarborough applied

the slightest pressure to the surrounding beam area, a mass

16

of more rust and dirt was dislodged. Was it not for a jury

alone to say whether the beam cleaning job had been done

carefully or negligently?

The petitioner personally did not clean this beam. At no

time did he participate in that function. It was a function

belonging exclusively to another, for whose conduct the

railroad was responsible, that caused the petitioner’s mjury.

The jury alone must therefore under this evidence pass on

whether that function had been carefully performed.

We consider it important to emphasize that the evidence

does not indicate merely that a single speck of rust or dust

was dislodged by the operation in which the petitioner was

injured. It indicates rather that after the petitioner washed

his eye, at the station and at home, there was only one par-

ticle of rust remaining in his eye. It was this one, of many

particles of rust and dust, that the fellow employes care-

lessly overlooked and which showered the petitioner, that

caused him to lose his eye.

At page 22R, the petitioner did say:

‘“‘T hung the fixture, made the splice and finished

taping it. I was just about to put the box cover up

against the box when I felt rust and dirt coming off

the box into my eye. Of course, I glanced up to see

where it came from, and there was still some flakes

above the cable and on the girder above the box.’’

As was argued above, if those means were inadequate for

the performance of the job, then therein lay the negligence

of the railroad in failing to provide adequate tools for a job

it directed to be done, and the exact measure of which it was

or should have been aware of. If those means were adequate,

then the failure to completely remove the rust was proof of

bad work by the petitioner’s fellow employes.

Under the circumstances, respondent finds itself on the

horns of a dilemma of its own making. If respondent did

not supply reasonable tools, it is negligent on the reasoning

above. If adequate tools were supplied for removing the

Ne Pr eel 2a

17

rust, then obviously the two employes previously directed

to clean the rust from the metal beam were clearly remiss

in their duty. If they had adequate tools for the purpose,

as contended by respondent, then petitioner was reasonably

entitled to rely on their proper performance of their as-

signed duty, especially since the first two lights were

properly cleaned. Where two or more employes are working

together, each has a reasonable latitude in relying upon the

statements and conduct of the others in the course of the

operation or a part of it: Ill. C. Ry. Co. v. Skaggs, 36 S. Ct.

249, 240 U. S. 66 (1915).

The two elements of negligence here alleged are neces-

sarily intertwined and mutually complementary and fit ac-

curately within the words of ‘this Court when through Mr.

Justice Black in Blair vs. B. d O. R. R. Co., 323 U. S. 600,

at pages 602, 603 it said:

“The negligence of the employer may be determined by

viewing its conduct as a whole. Union Pacific Railroad Co.

vs. Hadley, 246 U.S. 330, 332, 333, 38 S. Ct. 318, 319, 62 L.Ed

751. And especially is this true in a case such as this, where

the several elements from which negligence might be in-

ferred are so closely interwoven as to form a single pattern,

and where each imparts character to the others.”’

In Union Pac. R. Co. vs. Hadley, 246 U.S. 330, the follow-

ing was said:

**On the question of its negligence the defendant under-

took to split up the charge into items mentioned in the dec-

laration as constituent elements and to ask a ruling on each.

But the whole may be greater than the sum of its parts and

the court was justified in leaving the general question to the

jury if it thought that the defendant should not be allowed

to take the bundle apart and break the sticks separately,

and if the defendant’s conduct viewed as a whole warranted

a finding of neglect. Upon that point there can be no ques-

tion.”’

It is, therefore, respectfully submitted that under basic

rules of negligence, the failure of the defendant to provide

brushes, created risks out of proportion to every benefit

—ooooeeeee ee eee oe

18

from such failure, and that plaintiff established a showing

of negligence sufficient at least to be entitled to go to the jury

as to inadequacy of tools and negligence of fellow servants.

IL THE COURT BELOW ERRONEOUSLY RULED IN

EFFECT, THAT THE PETITIONER HAD AS-

SUMED THE RISK OF HIS EMPLOYMENT AND

WAS THEREBY COMPLETELY BARRED FROM

RECOVERY.

This accident occurred after the Amendment of 1939, that

withdrew assumption of risk,as a defense available to the

employer in these cases.

On pages 58 and 59 of the record the Trial Judge, in ex-

planation of the directed verdict for the defendant, said:

‘‘Now, it must be remembered—and we had this up

for discussion while you were out,—that the plaintiff

himself was the leader, and while the Railroad Com-

pany is charged with the responsibility of furnishing

tools and equipment, the Railroad Company is an in-

visible entity, it is a corporate body that has no soul,

and can only work and operate through its officers and

employees, and this young man, the plaintiff, was the

man in charge of his own operation, and it was for him

to say what equipment he wanted. His lawyer, Mr.

Richter, claims that the man who made the survey, the

inspector, was the one who should have loaded up the

truck that morning with all of the essential equipment

necessary to do the job and a wire brush should have

been placed in among the tools. But, the plaintiff, him-

self, Mr. Searborough, says that when he got out to the

job he looked around for the things with which to do the

work, and that he went over to the tower, or sent some-

one over to the tower, to get waste and things to wipe

the pipes and conduits clean, . . ”? (Italics ours.)

G78 eee ae iy Se ae PEERS

AE RIO a

—_ _anagamnmcmmme

19

What the Trial Judge was in effect saying was that the

petitioner had assumed the risk of the job and that regard-

less of the inherent peril of performing the job in the estab-

lished mamner, or the failure of his foreman, Frankenfield

to provide the brushes, if the petitioner was aware of the

peril, then, if injured, he could not complain thereof.

This Court, in the Tiller case, supra, to use its own words,

has, however, said (at page 58): ;

‘We hold that every vestige of the doctrine of as- i

sumption of risk was obliterated from the law by the

1939 Amendment, and that Congress, by establishing

the defense of assumption of risk in that statute, did

not mean to leave open the identical defense to the

master, by changing its name to non-negligence.’’

(Italics ours.)

Nor can the railroad contend that the petitioner as-

sumed the risk of injury, since he knew that the brushes had

not been supplied. Such argument is unavailing (1) because

voluntary assumption of risk has been abolished as a defense

under the 1939 amendment to the Employers Liability Act;

Tiller vs. Atlantic Coast Tine, 318 U.S. 4; (2) because

such argument involves an admission that respondent failed

to provide proper tools; (3) because in any event negligence

of a fellow servant, even apart from the 1939 amendment,

supports recovery even though the petitioner may have par-

ticipated in the act which caused the injury: Ill. Cent. Ry.

Co. vs. Skaggs, 36 S. Ct. 249, 240 U. S. 66 (1915) ; Jones vs,

Kans. City, So. Ry. Co., 145 S.W. 2d 969, Ark. ( 1941).

Further, at page 60 of the record, the learned Trial J udge

said:

“‘when he first started in to work he put his goggles

on, and found everything was so clean he thought he

didn’t need them and stopped using them. and when

he came to the one in question where he got the dust

in his eye he was not using the goggles, and there

were some particles of dust at this particular place. He

’ FN 9b AIM CED EI PO at ee SET ete *

ee ee

OS al Pika or rete aN 7) ie ag

oa

claims if he had a wire brush up there they would have

dislodged the particles of rust, and it wouldn’t have

gotten in his eye. You women members of the jury

know that it is a pretty good job of housekeeping when

you get dust off as perfectly and accurately as that...

‘«Now, the question is whether we can, in law, charge

the Railroad Company with negligence, and I can tell

you as a matter of law, under the decisions and opinion

of the Court, that that is not negligence in law sufficient

to require the defendant to answer in damages.”

(Italics ours.)

By this language the learned Trial Judge charged that

the petitioner was guilty of contributory negligence and

that such contributory negligence was & complete bar to

recovery. While not using the words ‘contributory negli-

gence’’, he interpreted this conduct as such and then ap-

plied the effect of assumption of risk as a total deterrent to

recovery. He told the jury there was nothing the railroad

could have done to have prevented this accident, and so ruled

as a matter of Taw. He thus held the railroad’s conduct was

one of non-negligence, as the petitioner was as aware of the

danger as the respondent. He was thereby allowing the

respondent the defense of assumption of risk though ‘‘every

last vestige’’ of it has been removed from the law by the

Amendment of 1939.

It is respectfully submitted that the reason for this mis-

conception of the applicable legal principles arises from the

failure to appropriately assess various acts of omission as

negligent conduct by the respondent.

Ill. THE PLAINTIFF WAS ENTITLED TO A

TRIAL BY JURY.

“A plaintiff has a right to a jury trial in an action for

injuries when any issue of fact remains to be settl re

Robostelli vs. N.Y.R. Co., (C.C.A. N.Y. 1888) 33 Fed. 76.

wet

—————EEeEeuoeee — OEY

—

21

“This amendment guarantees the right to have all ques-

tions of fact as to negligence passed upon by a jury, and the

right involves not only the existence of the facts themselves,

but the inferences as to the exercise of due care to be drawn

from the facts when established.’ Justices vs. Murray (N.

Y. 1870) 9 Wall. 278; 19 L.E. 658.

‘The right of a jury trial in civil cases at common law is a

basic and fundamental feature of our system of federal

jurisprudence which is protected by the Seventh Amend-

ment. A right so fundamental and sacred to the citizen,

whether guaranteed by the Constitution or provided by stat-

ute, should be jealously guarded by the courts.’ Ives vs.

Grand Trunk R. R. Co., 35 Fed. 176, Affirmed 144 U.S. 408.

The right to a jury trial to test the negligence of carriers

under the Federal Employers Liability Act was unequivo-

cally settled in the recent case of Bailey vs. Central Vt. Ry.,

319 U.S. 350 (1943), involving the analogous problem,

whether, under given facts, the carrier had used reasonable

eare to provide a safe place to work. In upholding plain-

tiff’s right to go to the jury, Justice Murphy, said;

**The nature of the tasks which Bailey undertook,

the hazards which it entailed, the effort which it re-

quired, the kind of footing he had . . . were facts and

circumstances for the jury to weigh. ... The jury is the

tribunal to decide that type of issue... . To withdraw

such a question from the jury is to usurp its functions.

“The right to a trial by jury is a basic and funda-

mental feature of our system of federal jurisprudence.

... It is part and parcel of the remedy afforded railroad

workers under the Employers Liability Act. Reason-

able care and cause and effect are as elusive here as in

the other fields. But the jury has been chosen as the

appropriate tribunal to apply those standards to the

facts of these personal injuries. . . . To 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 afforded them.”’

CONCLUSION.

1. It is respectfully submitted that the petitioner has

supplied adequate facts to create a jury issue.

2 The decision of the United States Circuit Court of

Appeals (3rd Circuit) is in direct conflict with the decisions

of this Court in the Blair, Bailey and Tennant cases (supra).

3. The petitioner has been deprived of his constitutional

right to a trial by jury.

4. The petitioner, as-one of thousands of non-operating

employees, requires judicial expression that assumption of

risk is no longer a defense as to these employees too, and

that acts of omission may well constitute negligence and

are not to be viewed as a form of assumption of risk under

the nomenclature of non-negligence.

Respectfully submitted,

I. LOUIS RUBIN and

B. NATHANIEL RICHTER,

Attorneys for Petitioner.

Sad ES Ae Cet Te 5s eee