Amicus Curiae Brief — Scarborough v. Pennsylvania Railroad

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IN THE

Supreme Court of the Anited States

TERM, 1945

No. 355

ERNEST E. SCARBOROUGH,

Petitioner,

US.

PENNSYLVANIA RAILROAD COMPANY,

A CORPORATION,

Respondent.

PETITION AND BRIEF OF THE UNITED RAILROAD

WORKERS OF AMERICA, C.1.0., FOR LEAVE TO FILE

THE SAME, AMICUS CURIAE.

LEE PRESSMAN

FRANK DONNER

Counsel for United Railroad Workers of America.

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IN THE

Supreme Court of the Anited States

TERM, 1945

No. 355

Ernest E. SCARBOROUGH,

Petitioner,

vs.

PENNSYLVANIA RAILROAD COMPANY,

A CORPORATION,

Respondent.

PETITION AND BRIEF OF THE UNITED RAILROAD

WORKERS OF AMERICA, C.1.0., FOR LEAVE TO FILE

THE SAME, AMICUS CURIAE.

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

Ernest E. Scarborough, by his attorneys, has prayed that a

writ of Certiorari issue to review the judgment of the United

States Circuit Court of Appeals for the Third Circuit entered

in the above entitled case on May 24, 1945. The United

Railroad Workers of America, C.1.O., ask leave to file a

brief, amicus curiae, because of the severe precedent this de-

cision may have on cases hereinafter to be tried, affecting the

rights of millions of other non-operating railroad employees

similarly situated.

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 Appeals

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

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JURISDICTION

The judgment of the Circuit Court of Appeals was entered

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).

QUESTIONS PRESENTED

1. Did the ruling of the Court below, holding there was

no evidence of actionable negligence, as a matter of law, de-

priwethe petitioner of his constitutional right to a trial by jury?

>. Was the action of the Court below erroneously predi-

cated on an application of the principles of assumption of risk

no longer available as a defense in these cases?

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 employees of

such carrier or by reason of any defect or insufficiency,

due to its negligence in its cars, engines, appliances, ma-

chinery, track, roadbed, works, boats, wharves, or other

equipment.”

STATEMENT OF THE FACTS

The petitioner who had no duty to supply his own tools, nor

to specify what tools were needed, arrived at Bryn Mawr Sta-

tion on April 21, 1941, with several other employees, with

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directions to remove the old wiring and lighting fixtures and to

replace the same. A specific order required that the beam and

other surface parts on or near the roof, to which new material

was to be affixed, were to be cleaned carefully and freed of

all rust.

Actually, neither the usual nor any rust cleaning tools were

provided by the petitioner's superiors. The petitioner was

not the foreman on the job. As gang leader he found an old

broom and some waste with which he and his co-workers

cleaned fixtures I and Il. The petitioner had nothing what-

soever to do with cleaning the beam around fixture 111, His

co-workers alone undertook to remove the rust around it.

By the slightest application by the petitioner of pressure on

the cover of that receptacle box, he was showered by rust

around that light, supposedly previously cleaned by his fellow

employees, but actually not cleaned at all. This rust caused

the petitioner to lose all vision in one eye.

The petitioner contends that this accident occurred because—

(a) he and his fellow employees were not supplied with

the usual proper rust-removing tools, or

(b) if what was used was adequate, there was evidence of

improper rust removal by his fellow employees.

SPECIFICATIONS OF ERROR TO BE URGED

1. The right to a jury trial was typically emasculated by

the ruling in this case.

2. The decision of the Court below is in direct conflict with

the statute as interpreted by the recent cases of Blair v. B. & O.

R. R. Co., 323 U. S. 600; Bailey, ddmnx. v. Central of Ver-

mont, 319 U. S. 350; Tennant v. Peoria S P. V. Ry. Co., 321

U.S. 29.

3. This decision vitally affects the rights of over sixty-five

thousand non-operating railroad employees of this defendant

alone, as well as several millions similarly situated with the

other interstate carriers in the country. The Amendment of

1939 has drawn shopmen, carmen, machinists, moulders, elec-

tricians, plasterers, and workers of dozens of other crafts into

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its purview since their work is sometimes of an interstate na-

ture. The comment of the trial court (the only judicial ex-

pression indicating the rationale of the ruling) indicates that

the ruling of this Court in Tiller v. Atlantic Coast Line, 318

U. S. 54, removing every last vestige of assumption of risk as

defense in whatever forni it might be presented, has been

ignored or misinterpreted. This decision, depriving this non-

operating employee of all recovery, will serve as a devastat-

ing blow to this class of workers, especially since the Third

Circuit is in Philadelphia, the home of the defendant and the

trial forum for the great majority of these claims brought by

members of this labor organization.

CONCLUSION

The writ should be granted.

Respectfully submitted, |

Lee PRESSMAN

FRANK DONNER

Counsel for United Railroad W orkers of America, C.1.0.

BRIEF

This brief has been prepared, not merely because of the

injustice believed done the petitioner, but because the decision

may become an insurmountable obstacle to recovery by thou-

sands of injured non-operating employees who will have to

rely on proof of negligence of the same kind and character as

here offered by the petitioner.

Makeshift tools ill fit for performance of the work directed,

practices hazardous of themselves without necessity, struc-

tures and appliances so arranged as to create unreasonable

peril, and operations without adequate regulation by safety

rules that the railroad itself should have promulgated; all

give rise to a terrible accident toll that brings unnecessary

suffering to thousands of railroad families.

Whether these various factual situations constitute neg-

ligence should be for exclusive jury consideration in the light

of the applicable legal principles enunciated in the several cases

FAS TAOS HE _—

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decided by this Court since the first Tiller case. (Tiller v.

Atlantic Coast Line, 318 U.S. 54.)

Necessarily here negligence takes on a more sophisticated

guise. A positive act of commission is naturally more easily

recognized than a complex passive state of affairs wherein the

act is one of omission. Though the decision in the latter case

is more difficult, nevertheless, it is still a decision as to a factual

situation. As such it is for the jury. Railroad employees

must not be deprived of their right to a trial by jury merely

because a judge thinks he could more easily decide the case, or

even more correctly. To do so is to have judicial usurpation

of the jury function. Bailey v. Central of Vermont Rwy. Co.,

319 U.S. 350.

Judicial conduct to the contrary is, however, frequently

based on the thought that since the employer need not furnish

the most efficient, the safest or best appliance (Chicago & N.

W.R.R. Co. v. Bowers, 241 U.S. 470), but merely one rea-

sonably safe, whether the appliance supplied or the procedure

followed is reasonably safe, becomes a question of law and

not fact.

Proof that other railroads use the same tool or follow the

same practices, as those complained of, in some judicial minds,

as in the Court below, seems to be adequate proof of the

absence of negligence warranting a ruling to that effect as a

matter of law.

In effect, this all means that since the injured employee is

as aware as the railroad of the hazard and peril, he has as-

sumed that risk by accepting the job or using the tool in ques-

tion, or doing the work without such tools as should properly

have been supplied.

Such courts, however, do not call it assumption of risk.

They call it “non-negligence”. This practice was decried in

the Tiller case, supra. As was pointed out in that case, the

Court said,

“In the disposition of cases the question of the plain-

tiff’s assumption of risk has frequently been treated sim-

ply as another way of appraising defendant's negligence,

as was done by the court below in the instant case.

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“Tt was this maze of law which Congress swept into

discard with the adoption of the 1939 amendment to the

Employers’ Liability Act, releasing the employee from

the burden of assumption of risk by whatever name it was

called. The result is an act which requires cases tried

under the Federal Act to be handled as though no doctrine

of assumption of risk had ever existed.”

In the same opinion, in note 21, the Court said:

“The present rule apparently ignores the fact that the

master, and not the servant, has control of the conditions

which affect the safety of the employees. . . - The ex-

isting rule not only permits the employer to be careless

about the condition of his premises, but, in effect, places a

premium upon his carelessness. - - -

“Under present economic conditions employees must,

of necessity, continue to work under unsafe conditions

or frequently sacrifice the fruits of many years of accu-

mulated seniority, go on relief, or beg their bread.”

In the 1939 Senate Committee Report to this amendment

we find,

“In justice, the master ought to be held liable for

injuries attributable to conditions under his control when

they are not such as a reasonable man ought to maintain

in the circumstances.”

Illustrative of typical accidents in which non-operating em-

ployees sustain injury are the following three:

A. A roundhouse employee in replacing a casing head,

weighing eighty pounds, on an engine cylinder does a job

assigned to a single machinist. He must lift it 2% ft. high

and set it on a protusion 4 in. long and 2 ft. away from the

platform he works on. The casing head has no handle or grip

by which it may be held. ‘The practice is universal in all

railroads.

Query: Where an employee thereby suffers an inguinal

hernia, is it for the jury to decide whether the employee was

required to do more than should have been reasonably ex-

pected of one man?

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B. A stower who loads freight cars at night is directed to

hammer nails into car door jambs on which to hang electric

cord. He necessarily hammers in the dark, misses the nail, and

it causes loss of an eye. The procedure is universal on rail-

roads. Simple, permanent, three-cent line hooks could have

been installed, obviating just such peril.

Query: Is this practice so hazardous, though employee is

aware of it, that a jury might find in it actionable negligence ?

C. The universal practice on electrified railroads is to re-

instate power immediately on catenary lines that have been

short circuited because of a foreign object touching the trolley

overhead line or a defect in some equipment, without inves-

tigating the cause of the power outage. In only four out of

two thousand cases are humans involved.

Query: Is it a judicial or a jury's function to weigh this

conduct for negligence, despite its universal practice ?

The record at hand indicates an order to clean overhead

work of rust without providing any of the usual tools for such

work. Clearly anticipatable by the employer was the fact that

some employee would work below that point and apply pres-

sure there, relying on the rust having been previously removed

so that he would not be subjected to the risk of a shower of

rust coming onto his face.

This certainly presented a jury issue under the decision in

Blair v. B. & O. R. R. Co., 323 U.S. 600. Intertwined with

this factual situation is the otherwise inevitable conclusion that,

if the waste found and used by the fellow employees to clean

the fixture in question was adequate to clean it properly, then

such fellow employees were negligent in their work and proxi-

mately caused the injury. Union Pacific R. R. Co. v. Hadley,

246 U.S. 330.

To deprive the petitioner of a jury trial in the instant case

necessarily precludes jury trials in the thousands of cases com-

parable to those illustrated.

To do so is to put these people back into the dark economic

ages where injured employees and families of fatally injured

employees were left destitute and economic charges on the

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community instead of placing the burden of their care on the

industry responsible for their plight.

The petition for certiorari, it is respectfully submitted, should

be granted and the case remanded for trial to a jury.

Respectfully submitted,

Lee PRESSMAN

FRANK DONNER

Counsel for United Railroad Workers of America, C.1.0.

Amicus Curiae.