Opposition Brief — Baltimore & Ohio Railroad v. Skidmore

COPY Office - Supreme Court, U. S,

FILED

JUL 19 jo4¢

CHARLES ELMORE UAUPLEY

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1947.

No. BE 85

THE BALTIMORE & OHIO RAILROAD COMPANY,

Petitioner,

—against—

BUZZY SKIDMORE,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

/ WILLIAM A. BLANK,

Attorney for Respondent.

a

) Wim Samvzs,

) Of Counsel,

) On the Brief.

Tue Court PREsS, N. Y. C.

INDEX.

PAGE

PE +s «cas sbeus hbtee dad wabee nie toe 60048004 1

Respondent’s Contention .................ee eee eeee 2

PLS cv ie Caweed te ukandeehks saedehealr weenie 3

Porxst I—Petitioner was negligent in directing re-

spondent to perform such laborious work in an

area continuously covered with snow and hard

ice over a long period of time ............... 7

Porst II—The manner in which the work was being

done on the day of the accident was not of

respondent’s own Choice .............ccceeces 17

Porst 111—The refusal of the Trial Judge to direct

the jury to bring in a written verdict did not

constitute reversible error ................0.. 26

Rs «shee Reon pad ORL S SAAS kOe Gy eé Rae Ahan 34

Tas_e or Cases Crtep:

American Bridge Co. v. Bainum, 146 Fed. 367

i a Mc ME We bnlevdek bddba ck acke sbeuasaeennn 17

Atchison, T. & S. F. Ry. €e. v. Ford, 171 Okla. 516,

AE SE aU nwt iawis cakueSchexwcdwenctue 17

Bailey v. Central Vermont Ry., 319 U. S. 350 ....... 13

pew v. B. & O. BR. Co., 333 U. &. GOO... oc cans 12,13

Boston € M. R. KR. v. Kyle, 156 F. 2d 112 (C. C. A.

DRG Sts Gee hneee skeen chian clack ckhandsih: 13, 24, 25

Boston & M. R. R. v. Meech, 156 F. 2d 109 (C. C. A.

1), cert. denied 329 U. S. 763, 67 S. Ct. 124. .13, 23, 24

Cartwright v. Atchison T. & S. F. Ry. Co., 228 Fed.

ME 5's KeNhe Aus RAR HRRAhEhee Chak ann dea bhadkc akin 25

Central Trust Co. of New York v. United States Light

and Heating Co., ct al., 233 Fed. 420 ........... 32

estan neaneees sett

ii

PAGE

Central Trust Co. v. Chicago, Rock Island, etc., Co.

ee es eh Oe Gh es ek BO ik ve bvndacee dancer 33

City of New Orleans v. Malone, 12 F. 24.17 ......... 32

Clark v. Howard, 88 Fed. 199 (C. C. A. 8).........., 17

Ellis v. Union Pacific R. Co., 329 U. S. 649 2.0.0.0... 12

Erie R. Co. v. Downs, 250 Fed. 415 (C. C. A. 2) ....30,31

Fleming, et al. v. Husted, 164 F. 2d 65 (C. C. A. 8)... 13

Fletcher v. Baltimore & Potomac Railway, 168 U. S.

Beh ee We CR OP heh ce hee cat has Cavees TAS 22, 23

Hlandy v. Reading Co., 66 F. Supp. 246 ............. 15

Jesionowski v. Boston & Maine Railroad, 67 S. Ct.

PMs Sha kia CACM RAMS INS baka WOO SEEOe CARER 13

Keith v. Wheeling & L. E. Ry. Co., 160 F. 2d 654 ..... 13

Lavender v. Kurn, 327 U.S. 645 ... 0... cc cece 12

Lillie v. Thompson, 68 S. Ct. 140 ................. 11,12

Lillie v. Thompson, 162 F. 2d 716 (C. C. A. 6) ...... 12

Lilly v. Grand Trunk Western R. Co., 63 S. Ct. 347,

ge Ge Be rere ree 1]

McAuliffe v. New York Central € H. R. R. R. Co., 172

App. Div. 597, 158 N. Y. S. 922 (2d Dept.) ...... 31

McGivern v. Northern Pacific Railway Co., 132 F. 2d

rn ec cea wnewas ahaa kel ced nantes 16

Missouri Pac. R. Co. v. Aeby, 48 8S. Ct. 177, 275 U.S.

RD ere ere Terr Tes 14, 15

Myers, A. Howard, et al. v. Bethlehem Ship Building

Corporation, 303 U. 8S. 41, 82 L. Ed. 638 ....... 32, 33

Newton, Charles D. v. Consolidated Gas Company of

New York, 259 U. S. 101, 66 L. Ed. 845 ......... 32

Palum v. Lehigh Valley R. Co., 165 F. 2d 3 (C. C. A. 2) 23

Ramsouer v. Midland Valley R. Co., 135 F. 2d 101

(C. C. A. 8)

ili

PAGE

Rashaw v. Central Vermont Ry., Inc., 133 F. 2d 253

SEA, MA: Mon ER WN AGRGN Wows NKR KOs eS uekate hone bucts 9

Raudenbush v. Baltimore & O. R. Co., 160 F. 2d 363

EER, WE ON Brn 0004 6 hen 6c cacebandcetceces 10

Tennant v. Peoria &€ P. U. Ry. Co., 321 U. S. 29 ..... 13

Tiller v. Atlantic Coast Line R. Co., 63 S. Ct. 444,

a ee Oe re ree 13, 15, 16

Tiller v. Atlantic Coast Line R. Co., 323 U. S.574.... 18

Unadilla Valley R. Co. v. Caldine, 278 U. S. 139, 49

a we Oe ei OE ine pCUGA Cad A ckGeus ck cies 25

United States v. Haupt, et al., 136 F. 2d 661 ......... 33

United States v. Socony Vacuum Oil Co., 60 S. Ct. 811,

310 U. 8. 150, 84 L. Ed. 1129 (rehearing denied

60 S. Ct. 1091, 310 U. S. 658, 84 L. Ed. 1421)..... 2

W. B. Grimes Dry-Goods Co. v. Malcolm, et al., 17

er es I I Dh o's a ks oc caanchences 29, 30

Wichita Falls € S. R. Co. v. Wade, 57 S. W. 2d 332

a ee EE hehe be bina'e kdb hue ceRK RL 17

Orner Avutnoritirs Crrep:

Equity Rule 68 (33 Sup. Ct. XXXVITT) ............ 32

Federal Employers’ Liability Act (Title 45 U.S. C. A.):

Es Sn cheen ii cohian Mined ows ban dn Ge 1

EE eb cG DG a bond smtavns babadacetech« 15

Federal Rules of Civil Procedure, Rule 49 ......... 34

Hughes on Federal Practice ....................5: 27

————

—_--~»~

_— oe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1947.

No. 857.

>

>

Tue BartrmoreE & Onto Rartroap Company,

Petitioner,

—against—

Buzzy Sximmore,

Respondent.

-s

as

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

Statement.

The Cireuit Court of Appeals, Second Cireuit, in

a unanimous decision by Frank, L. Hand and Swan,

Cireuit Judges, affirined a judgment recovered by

Buzzy Skidmore, the plaintiff, hereinafter referred

to as the respondent, against The Baltimore & Ohio

Railroad Company, the defendant, hereinafter re-

ferred to as the petitioner, in an action to recover

damages for personal injuries sustained by the re-

spondent, after a trial before Inch, D. J., and a jury

in the Eastern District of New York. The action was

instituted under the Federal Employers’ Liability Act

(45 U. S. C. A., Sections 51-59) by the respondent

against the petitioner to recover damages for injuries

suffered by the respondent on January 19th, 1945 be-

cause the petitioner negligently supervised the opera-

OA AIL IIE A OP

2

tion of certain work and failed to furnish respondent

with a safe place within which to do his work, and

because the petitioner negligently failed to supply re-

spondent with sufficient help for the work then being

done, all of which resulted in the falling of a heavy

spreader underneath a coal hopper car with the con-

sequent result that the respondent suffered devastat-

ing injuries.

Respondent’s Contention.

Petitioner’s application is opposed because the de-

cision herein, 167 F. 2d 54, and the judgment en-

tered thereon by the Cireuit Court of Appeals for the

Second Circuit, is wot in conflict with applicable deci:

sions of this Court or the decisions of the various

Circuit Courts of Appeals. Moreover, Points I and

II contained in petitioner’s brief in effect argue that

the jury verdict in the instant case was against the

weight of the evidence. Such an argument before

this Court is definitely untenable as is indicated by

this Court’s decision in United States v. Socony

Vacuum Oil Co., 60 S. Ct. 811, 310 U. 8. 150, 84 L. Ed.

1129, wherein Mr. Justice Douglas remarked at page

856 :

‘*Certainly, denial of a motion for a new trial on

the grounds that the verdict was against the

weight of the evidence would not be subject to

review.”’

Rehearing was denied by this Court 60 S. Ct. 1091,

310 U. S. 658, 84 L. Ed. 1421.

— oe

The Facts.

The respondent, a 41 year old car man, employed

hy and in the petitioner’s Lorain, Ohio, car shops for

a four year period of time prior to the accident, re-

sided with his wife and three children in Lorain, Ohio

(fols. 88, 89, 176).

On January 19th, 1945, at 7:30 A. M., respondent

reported for work at the foreman’s office, at which

time and place Mr. Beaver, another car man, and

respondent, assigned by the petitioner as a two man

erew received a written work order calling for in-

stallation of eight new doors on a specified coal hopper

located or spotted on a track in the petitioner’s yard

(fols. 89, 91-94, 118-122, Exhibit 11, p. 264).

An examination of Exhibits 1-7 (pp. 244-255) re-

veals that the coal hopper in question was comprised

of four hopper compartments and when fully equipped

earried four sets of doors, two doors to each set

riveted on to a door spreader or cross-bar as part of

its underearriage. When so equipped these coal

hopper doors would, by means of latches and tumbler

locks connected to said doors (fol. 108), swing open

and shut as the oceasion called for when unloading

or loading coal. Each door weighed 96 pounds and

each spreader weighed 190 pounds (fols. 142, 143).

Invariably the petitioner would cause one or more of

its ears, in for repair, to be located or spotted on any

given track before car men reported for work so

that a ear man’s written work order would also indi-

eate the car and track where he was scheduled to work

(fol. 96).

Respondent testified that when it was necessary to

patch old doors or replace less than complete sets of

doors it was the custom and practice in the peti-

eae —

tinner’s Lorain yard for burner crews to burn off the

impaired doors or parts thereof and leave the door

spreaders attached to and suspended from the remain-

ing good or unimpaired doors underneath the cars,

whereupon two car men acting as a team would to-

gether replace the single doors and then key them or

tentatively line them up with the suspended spreaders

after which a rivet crew would permanently rivet them

together. He further testified that when all eight

doors of a car hopper had to be replaced with new

ones, it was the custom and practice in petitioner’s

Lorain yard for a burner crew to completely burn

down the doors and spreaders, salvaging the spreaders

however, whereupon another crew would clean up the

debris from under the coal hopper, and carry the

salvaged spreaders to a door bench located in another

part of the yard. There, respondent testified, the door

bench crew would permanently rivet the new doors to

the salvaged spreaders after which a crane or tractor

crew would cart the attached doors and spreaders back

to the spotted coal hopper and deposit them across the

rails and under the hoppers. Then the car man crew

consisting of three men, not two men, would with the

aid of a large hydraulic jack, hang the complete units

in their required places on the undercarriage pins of

the coal hopper (fols. 97-139, Exhibits 7, 8, 9, 10,

pp. 256-263).

All of the respondent’s testimony relating to the

prevailing custom and practice in the petitioner's

Lorain yard at the time of the accident was corrobo-

rated by Mrs. Skidmore, employed by the petitioner

as a car man’s helper at that time and for two years

prior thereto (fols. 405-414).

John Wilson, respondent’s foreman also corrobo-

rated respondent’s testimony on custom and practice

— :

(fols. 627, 642-648). Wilson further testified that if

all four doors on one side of the car were burned off,

replaced with new doors, and then the four doors on

the other side of the car were similarly burned off and

replaced with new doors, then the spreaders would, all

during this operation, remain suspended on the old

and new doors respectively without ever dropping to

the ground. He, however, did not believe that to be a

good practice because as he expressed himself, ‘‘ You

will lose too much time that way” (fols. 646-649).

Edgar Beaver, the other car man who was working

with the respondent as a team at the time of the acci-

dent, also corroborated respondent’s testimony on the

prevailing custom and practice in petitioner’s Lorain

yard (fols. 672-677).

When Beaver and respondent started working on

the spotted coal hopper car at 7:30 that morning they

noticed that all eight of the old doors and the four

connecting spreaders had been burned down. The

debris was lying underneath the coal hopper and the

salvaged four spreaders were separated and detached

from the eight doors. Subsequently that day eight

new doors, not attached to the spreaders, were brought

to Beaver and respondent where the coal hopper was

spotted (fols. 113, 138, 685-689).

On that day and for a continued period of at least

one month prior thereto the entire yard was covered

with snow and hard ice, notwithstanding the fact that

the petitioner employed a couple of hundred men in

that yard daily (fols. 122-125, 194, 195, 617, 654, 655).

Neither before nor during the work progress of

Beaver and respondent that day did any of petitioner’s

employees clear up the hard ice condition where

Beaver and the respondent were working (fol. 124).

6

When the eight new doors were delivered to Beaver

and the respondent they proceeded to hang them and

the spreaders separately although respondent had

never installed or seen any one install doors and

spreaders in that manner (fols. 131-134). At about

3:15 P. M., while attempting to install the last spreader

(fols. 143-146), respondent testified :

‘*Q. In other words, just before the accident the

last unit you and Beaver were trying to get on

was this 190 pound spreader; is that correct? A,

That is correct.

Q. Now, will you tell us from that point on,

where you were, how you worked and just what

happened, Mr. Skidmore? <A. Well, Mr. Beaver

was on one side of the car and I was on the other,

and we had to get down on our knees. I was down

on my knees on the hard, slick, slippery ice, and

had the bar stuck through the holes through the

door for to bring our spreader up to have it ready

to hook it on.

Q. In other words, the idea was to get the

spreader high enough you had to use a pull to get

it up and then use the bar to stick through a hole

in the door and get it through a hole of the

spreader? <A. That is correct.

Q. And then put in a temporary bolt? A. Yes,

sir.

Q. All right, go on from there. You say you

were down on your knees? <A. I was down on my

knees on the hard, slick, slippery ice. When I

lifted this door spreader up here my knees went

down like that (indicating) and that jerked me

down forward, and I felt a terrific snap back in

the area of my spine down low (indicating).”

POINT I.

Petitioner was negligent in directing respondent to

perform such laborious work in an area continuously

covered with snow and hard ice over a long period of

time.

Both sides agree that on the day of the accident

complained of and for a continued one month period

of time prior thereto, the petitioner’s entire yard, in-

cluding the place where respondent was assigned to

work that day, was completely covered with snow and

hard ice notwithstanding the fact that all during this

period of time the petitioner employed a couple of

hundred men in that yard daily (fols. 122-125, 194,

195, 617, 654, 655).

Respondent further testified, and his testimony was

in no wise contradicted, that neither before nor dur-

ing the work progress of Beaver and himself that day

did any of petitioner’s employees clear up the hard

ice condition where Beaver and the respondent were

working that day (fol. 124).

That the petitioner directed the work to be done

in the dangerous area complained of is evidenced by

its written work order calling for installation of eight

new doors on a specified coal hopper located or spotted

on a track in the petitioner’s yard which was com-

pletely covered with snow and hard ice (fols. 92, 118,

120). The respondent further testified:

‘*Q. Then would it be the custom at the yard,

and was it carried out during the years that you

were a car man, to spot or locate a car at a par-

ticular place in the yard where you were to go to

work? <A. Well, they would spot them there in

inianeiaiiail ——

the yard just any place where they were doing

the work, you know.

Q. That is what I mean. They would spot them

for you before you would come to work? <A. That

is right.

Q. Then when you got your written order it

would eall for doing work on a certain car

located on a certain track? <A. That is right”

(fol. 96).

It is therefore abundantly clear that respondent

had absolutely nothing to do with the spotting or

locating of the coal hopper in question on the track

in the area where the work was specifically called for.

Regarding the petitioner’s contention contained in

the first point of petitioner’s brief, one is moved to

ponder what interpretation the petitioner places on

the 1939 amendments to the Federal Employers’ Lia-

bility Act. Concededly, the petitioner owed respond-

ent the duty to furnish him with a safe place to work.

It must also be coneeded that by the 1939 amendments

respondent did not assume the risks of his employ-

ment.

Does it not suffice, at least to the extent of creating

a jury question, that the petitioner, notwithstanding

the fact that it employed more than two hundred men

daily in the Lorain Yard at the time of the accident,

directed by written order that the work in question

be done in an area completely covered by snow and

hard ice?

Would the petitioner have this learned Court be-

lieve that the jury should not be allowed to deliberate

on this most vital issue? Does the petitioner sincerely

believe that under these circumstances and the condi-

tions existing at the time of the injury, it actually

provided respondent with a safe place to work?

_ =

If the petitioner had a mind to be guided by the

Congressional amendments of 1939, or if at least in

some slight degree it considered the safety of its em-

ployees it would in this case have caused that area of

hard ice to be dissolved or chopped up and removed,

before assigning respondent to perform such danger-

ous and laborious work at the place where the coal

hopper in question had been spotted or located.

That an icy condition existing two days prior to an

accident presented a jury question as to negligence

was fairly recently decided. Under such circum-

stances what interpretation can this Court place on

a similar iey condition existing for more than one

month continouously prior to the accident?

In Rashaw v. Central Vermont Ry., Inc., 133 F. 2d

953 (decided February 3, 1948, C. C. A., 2nd Cir.),

Chase, Cireuit Judge, ably held at pages 254 and 255:

““* * * we shall treat his fall for the purposes

of this appeal as one from the bridge.

There was no substantial dispute as to the con-

dition of the bridge. The ties on which the rails

rested were very slippery because of ice which

was thick enough to make them rounded on the

top. * * * There was undisputed evidence that

the bridge had been in about the same icy condi-

tion two days before the accident when the con-

ductor walked over it with the assistant superin-

tendent of the northern division of the railroad.

* * * *

The case as thus made presented a jury ques-

tion as to the negligence of at least the defendant

railroad in allowing the bridge to remain in its

icy condition when the plaintiff’s intestate was

required to cross it to do his work.’’ (Italies the

writer’s. )

10

Another case dealing with similar facts recently

decided, is Ramsouer v. Midland Valley R. Co., 135

F. 2d 101 (C. C. A., Eighth Cir., decided April 7,

1943), where Gardner, Circuit Judge, cogently com-

mented on pages 105 and 106:

‘“* * * There had been freezing weather, alter-

nating with milder temperatures, for about a

week, with some precipitation in the nature of

sleet and snow. The sleet and snow had not re-

cently fallen. * * *

Viewing the evidence in the light most favor-

able to plaintiff, we think it presented a genuine

issue of fact from which a jury might reasonably

decide that Ramsouer’s injuries resulted in whole

or in part from the negligence of the defendant

(1) in that it failed to maintain this switch track

in a reasonably safe condition, or place it in such

condition by removing the ice and snow at least

from the curve therein prior to attempting the

switching operation; * * *.’’ (Italies the

writer’s. )

See also Raudenbush v. Baltimore & O. R. Co., 160

FP. 2d 363 (C. C. A., Third Cir.), decided February

19, 1947, where the Court aptly remarked on page

367 :

‘The place of work here was a switch yard. It

is a place of moving cars and locomotives and no

reason exists why, within the confines of such

yard, the employer should not be required to

exercise a reasonable degree of care to pre-

vent an accumulation of snow or ice in such

quantity and location as would constitute a

menace to the safety of the employces in the per-

formance of their various duties. * * *’’ (Italics

the writer’s.)

—

11

Under the rulings of the various Circuit. Courts of

Appeals, it would conclusively appear that no con-

ceivable reason existed which would entitle the peti-

tioner in this action to assume it had the right to

direct its employees to perform laborious work in

areas completely and continuously covered by snow

and hard ice for more than one month prior to the

accident as was proven in this case.

See also Lilly v. Grand Trunk Western R. Co., 63

S. Ct. 347, 317 U. S. 481, 87 L. Ed. 411, where

Mr. Justice Murphy delivering the opinion of the

Court clearly enunciated on page 351:

“The use of a tender, upon whose top an em-

ployee must go in the course of his duties, which

is covered with ice seems to us to involve ‘unneces-

sary peril to life or limb’—enough so as to per-

mit a jury to find that the Boiler Inspection Act

has been violated.’’ (Italics the writer’s.)

Foreseeability, it is believed, is the crux of this case.

Could the petitioner have foreseen that under all of

the prevailing conditions on January 19th, 1945 such

an accident could have occurred ?

The most recent cases decided by the Supreme Court

of the United States and the various Circuit Courts

of Appeals indicate that the Trial Court in this action

did not err in submitting to the jury for its ultimate

determination the factual issues here involved.

In Lillie v. Thompson, 68 S. Ct. 140, decided on

November 24th, 1947, the petitioner a 22 year old

female telegraph operator was employed by the

respondent’s railroad to work alone between the hours

of 11:30 P. M. and 7:30 A. M. in a one .oom frame

building situated in an isolated part of the railroad’s

12

yard. The petitioner’s duties were to receive and

deliver messages to men operating trains in the yard.

About 1:30 A. M. on the night of her injury, peti-

tioner responded to a knock thinking that some of

the respondent’s trainmen were seeking admission.

She opened the door and before she could close it a

man not in the respondent’s employ entered and beat

her with a large piece of iron, seriously and perma-

nently injuring her.

The petitioner sued for damages under the Federal

Employers’ Liability Act and her contention was that

she was injured as a result of the respondent’s negli-

gence in sending her to work in a place he knew to be

unsafe without taking reasonable measures to pro-

tect her.

The District Court dismissed the complaint for

failure to state a cause of action and entered sun-

mary judgment for the respondent. The Circuit

Court of Appeals affirmed without opinion (6 Cir,

162 F. 2d 716). The Supreme Court in a per curiam

opinion appropriately held, on page 142:

‘“*We are of the opinion that the allegations in

the complaint, if supported by evidence, will war-

rant submission to a jury. * * * That the fore-

seeable danger was from intention or criminal

misconduct is irrelevant; respondent nonetheless

had a duty to make reasonable provision against

it. Breach of that duty would be negligence,

and we cannot say as a matter of law that peti-

tioner’s injury did not result at least in part from

such negligence.”’

See also Ellis v. Union Pacific R. Co., 329 U.S.

649; Lavender v. Kurn, 327 U.S. 645; Blair v. B. &

_— :

13

0. R. Co., 323 U. S. 600; Tennant v. Peoria & P. U.

Ry. Co., 321 U. 8. 29; Bailey v. Central Vermont Ry.,

319 U. S. 350; Tiller v. Atlantic Coast Line R. Co.,

318 U. S. 54; and the second Tiller case, 323 U. S.

574; Jesionowski v. Boston & Maine Railroad, 67 8.

Ct. 401; Boston & M. R. R. v. Meech, 156 F. 2d 109

(Cc. C. A. 1), cert. denied 329 U. 8. 763; Boston & M.

R. R. v. Kyle, 156 F. 2d 112 (C. C. A. 1); Fleming,

et al. v. Husted, 164 F. 2d 65 (C. C. A. 8).

In that connection this Court is respectfully re-

ferred to the case of Keith v. Wheeling & L. E. Ry.

(o., 160 F. 2d 654, wherein Hicks, Cireuit Judge,

after elaborating on the opinions contained in the

most recent cases passed upon by the United States

Supreme Court, dealing with this question, says the

following on page 658:

“We do not review the facts of these cases but

it is plain from their examination that the author-

ity of courts by direction of a verdict, to with-

draw from the consideration of a jury matter

bearing upon the question of the defendant’s

negligence and its proximate relation to the in-

jury is now very restricted indeed.” (Italies the

writer’s. )

Under all of the circumstances in this case there-

fore the jury certainly had a right to pass on so in-

tegral a question when determining that petitioner’s

negligence brought about this accident in whole or

in part.

The eases cited in petitioner’s brief relating to this

subject, more particularly contained in its first point,

are clearly distinguishable from the facts involved

in the instant case and the writer therefore presumes

to make some comment on said cited cases.

14

In Missouri Pac. R. Co. v. Aeby, 48 S. Ct. 177,

275 U. S. 426, 72 L. Ed. 351, appearing on pages 9

and 10 of the petitioner’s brief, the Court in reciting

the facts there involved said, among other things, on

page 179:

‘** * * When it rained, there accumulated in

this and other depressions on the platform pnd-

dles of water, which gradually disappeared. By

the time of the accident, the depression in front

of the steps had become somewhat larger and

deeper, by reason of rains and constant use. Its

surface was rough. No ice had formed there after

respondent came. The platform was dry the

evening before the accident.’’ (Italics the

writer’s. )

It is therefore apparent that the facts themselves

are clearly distinguishable in that the ice formation

in that case existed for only a matter of a few hours

prior to the accident, whereas in the instant case it

continued over a period of more than one month, with

which fact the parties to this action are in complete

accord.

Moreover, immediately following the quoted por-

tion appearing on pages 9 and 10 of petitioner’s brief,

relating to the Missouri case, Mr. Justice Butler, writ-

ing for the Court, aptly remarked on page 179:

‘** * * The obligation in respect of station plat-

forms and the like owed by carriers to their pas-

sengers or to others coming upon their premises

for the transaction of business is greater than

that due their employees accustomed to work

thereon. The reason is that the latter, familiar

with the situation, are deemed voluntarily to take

_—_ sarees

15

the risk of known conditions and dangers.”

(Italics the writer’s.)

The Missouri ease was decided on January 3rd, 1928,

some eleven years prior to the abolishment of the

assumption of risk defense. (See Title 45 U.S. C. A.,

Section 54.) No longer are federal employees, under

the Federal Employers’ Liability Act, deemed volun-

tarily to assume the risk of known conditions and

dangers. That the Courts so interpret in this day

and age the holding in the Missouri case is clearly

apparent from an examination of the opinion in

Handy v. Reading Co., 66 F. Supp. 246, where the

Court held, on page 249:

“To sustain its motion for judgment non

obstante veredicto, defendant relies upon the

cases of Missouri Pac. R. v. Acby, 1928, 275 U. 8.

426, 48 S. Ct. 177, 72 L. Ed. 351, * * *.

Furthermore, it will be seen that the cases re-

lied upon by the defendant were decided before

the Amendment of 1939, withdrawing assumption

of risk as a defense in Federal Employers’ Lia-

bility cases. The decision of the Supreme Court

in the Tiller case, supra, indicates that the deci-

sion in the Aeby case was responsible in part for

the Amendment of 1939.”’

In Tiller v. Atlantic Coast Line R. Co., 63 8. Ct.

444, 318 U. S. 54, 87 L. Ed. 610, Mr. Justice Black

ably remarked on pages 446 and 447:

«“* * * We hold that every vestige of the doc-

trine of assumption of risk was obliterated from

the law by the 1939 amendment, and that Con-

gress, by abolishing the defense of assumption of

risk in that statute, did not mean to leave open

the identical defense for the master by changing

eaten a

16

its name to ‘non-negligence’. As this Court said

in facing the hazy margin between negligence and

assumption of risk as involved in the Safety

Appliance Act of 1893, 45 U. S. C. A., Section 1

et seq., ‘Unless great care be taken, the servant’s

rights will be sacrificed by simply charging him

with assumption of the risk under another name;’

and no such result can be permitted here.’’

The case of MeGivern v. Northern Pacific Railway

Co., 132 F. 2d 213 (8th Cir.) cited on page 10 of

petitioner’s brief, is clearly distinguishable and_be-

comes most evident upon examination of certain of the

quoted facts and holdings therein enunciated by

Gardner, Circuit Judge, on page 217, wherein he

states:

‘“* * * The steps on this switch engine were,

when the crew began to use them, free of snow.

The accumulation of snow and ice during the

progress of the work was a natural and normal

consequence due to the recently fallen snow in the

yards. There were no inherent imperfections in

these steps rendering them less fit for the use

for which they were intended. * * * The condi-

tion of these foot boards was continually changing

because of the snow being carried on to them by

the workmen and packed down. * * *

* * * Under the prevailing conditions which

were perfectly obvious snow on the foot boards

could not have been avoided. It was a natural

and necessary result of existing climatie condi-

tions.’’ (Italics the writer’s.)

How in all sincerity can facts such as are contained

in the McGivern case be compared with the facts in

the instant case where the snow and hard ice condition

existed for more than a month?

_

17

The case of American Bridge Co. v. Bainum, 146

Fed. 367 (3rd Cir.) also appearing on page 10 of

petitioner’s brief, is not a Federal Employers’ Lia-

bility case, and is in no wise in point with the facts

herein involved.

The Wichita Falls & S. R. Co. v. Wade, Court of

Civil Appeals of Texas, 57 S. W. 2d, 332, also ap-

pearing on page 10 of petitioner’s brief, was decided

on December 24, 1932 prior to the abolishment of the

assumption of risk defense and the decision therein

was clearly based on a defense of assumption of risk

for there the Court held, on page 337:

“* * * we believe that the defense of assumed

risk was conclusively established, independently

of the issue of defendant’s negligence.”’

The cases of Atchison, T. & S. F. Ry. Co. v. Ford,

171 Okla. 516, 43 Pae. 2d, 459 and Clark v. Howard,

88 Fed. 199 (8th Cir.) both cited on page 11 of

petitioner’s brief, were similarly cases decided prior

to 1939 when the defense of assumption of risk still

prevailed for the benefit of railroads.

POINT II.

The manner in which the work was being done on

the day of the accident was not of respondent’s own

choice.

As to the condition in which Beaver and the re-

spondent found the spotted coal hopper the morning

of the accident, Beaver, petitioner’s witness, testified

(fol. 669) :

**Q. And the job as you did it that day, as you

ones a

now say, that car had all the doors burned off?

A. Yes, but we were putting in single doors and

spreaders separate.”’

In the same vein, Wilson, petitioner’s witness, also

testified (fol. 643):

‘*@. There is no question in your mind but that

all the doors, the old doors, the eight doors, were

burned off? A. That is right, they were burned

off.”’

Respondent on that score testified (fol. 113):

“*Q. Now, when you came to work on the morn-

ing of the accident how did you find the car that

you received working orders on? What condi-

tion was it in? A. It had all been burned down

clean; all the doors, spreaders, everything,

dropped underneath the car.

Q. And was the spreader, were the spreaders

that you say were under the cars, were they

there without doors attached? <A. Yes, sir.’

These facts coupled with the assignment called for

in the work order of the day, Exhibit 11 (p. 264),

lead to the inescapable conclusion that the petitioner

directed the work on said coal hopper be done by

Beaver and respondent in the manner specifically

employed. If the petitioner desired that the work

be done in any other manner, it would have had an-

other crew clean up the debris; cart the old spreaders

to the work or door bench where still another crew

would rivet the four salvaged spreaders on to eight

new doors; whereupon a third crew would by means

of a crane or tractor haul back the attached doors

and spreaders to the spotted coal hopper and deposit

them across the rails and under the hopper. Then

the car-man crew consisting of three and sometimes

19

four men, with the aid of a large hydraulic jack

would hang the complete units under the coal hopper.

At one point in his testimony, Beaver, petitioner’s

witness, testified that the method employed on that

day by him and respondent was a customary one

when he said (fols. 652-654) :

“Q. Now, you heard Mr. Skidmore describe

the manner in which you were putting up the

spreaders on that day in question? A. I did.

Q. Would you say that that was the ordinary

custom and practice and that you had followed

it yourself for a long time? A. I had put them

up that way myself, yes.

Q. Do you recall ever working with Mr. Skid-

more on that particular job before? A. No. I

ean’t say that I did.

* * * *

Q. Have you observed other men in the yard

working in two’s putting up spreaders the same

way? <A. Yes, I have seen lots of them do it

that way.

Q. You have seen lots of them do it that way?

A. Yes.”’

Wilson, another witness for petitioner, corrobo-

rated this testimony when he said (fol. 621):

**Q. —will you say that the work was done that

day in the usual and customary manner? A.

That is right.’’

It conclusively appears therefore that the method

employed that day by Beaver and the respondent was

one of the customary methods practiced in petitioner’s

yard although respondent had never personally in-

stalled or seen any one install doors and spreaders

20

in that manner in the petitioner’s yard (fols. 132,

133). The only plausible deduction therefore is that

Wilson, the petitioner’s foreman, with full knowledge

of the fact that the undercarriage of the coal hopper

had been completely burned down, ordered, and di-

rected that the work be done in the manner it actually

was being done by Beaver and respondent at the time

of the accident.

True it is, that this practice called for only two

men to hang the doors and spreaders. Petitioner

approved that unsafe method of doing the work be-

cause it saved time, a factor most essential to the

petitioner for as its witness, foreman Wilson, testi-

fied (fol. 648):

**A. Well, that wouldn’t be good practice, be-

cause that work has to be done before the men

get over there. You will lose too much time that

way.

Q. You will lose time? A. That is right.”’

That a safer method of doing the work, calling

either for a three or four car-man crew rather than a

two man crew was sometimes followed by the peti-

tioner is not only deducible from respondent’s testi-

mony heretofore referred to, but from that of peti-

tioner’s witness, Beaver, who testified (fols. 669, 670,

675, 676):

**Q. All right. Now, wasn’t it the practice, sir,

the company practice there, that when you had

to put in—when the car was burned off all around

so that the doors were burned off and the spreader

was burned down, that you would use three and

four men for the job of installation? A. Well,

if it was a full unit both doors and spreaders,

they used three sometimes, and I have saw four.

—

21

Q. And the job as you did it that day, as you

now say, that car had all the doors burned: off?

A. Yes, but we were putting in single doors and

spreaders separate.

* * * ~

Q. But the car was burned off all around? A.

Yes. :

Q. And where you put in all new doors in a

car that has been burned all the way down, now

you have to put in a unit, don’t you, of doors and

spreaders, because the doors have been burned

away and the spreaders have been burned away?

A. If they are all burned down.

Q. Now, they have a work bench where spread-

ers are riveted on to doors haven’t they? <A. Yes.

Q. And when they do that the whole unit is

brought over by a tractor or a crane? A. Yes.

Q. And swung under as far as you can get it

under the car? A. That is right.

Q. Then the whole unit is jacked up by a jack

which does the lifting instead of your back

muscles; isn’t that so? A. That is right.

Q. And the man comes along and just works

the jack, and that lifts the weight up into place?

A. Yes.

Q. And the pins are put in? A. Right.

Q. That is the practice that obtained out there?

A. Yes.

Q. And you saw it done that way? A. Yes,

sir.”’

It is therefore clearly apparent that the petitioner

employed two separate methods of doing that type of

work in its yard, but elected to use the unsafe method

to save time, wages and manpower.

22

Our courts have uniformly held that although rail-

roads adopt and follow certain customs and practices

of doing different types of work in their yards, when

it is once proven that such customs and practices are

dangerous in nature, sufficient negligence is established

to warrant jury verdicts against them for injuries

sustained as a result thereof.

In Fletcher v. Baltimore & Potomac Railway, 168

U. S. 135, 18 S. Ct. 35, there existed a custom and

practice on the defendant’s railroad that employees

of the railroad were allowed the privilege of bringing

back with them for their own individual use for fire-

wood, sticks of refuse timber left over from their work

after repairing the defendant’s roads, such as solid

pieces of bridge timber, cross-ties, ete. It was the

constant habit of the men, over a number of years, to

throw off these pieces of firewood while the train was

in motion at such points on the road as were nearest

their homes, where the wood was picked up and car-

ried off by some of the members of their families or

other persons waiting there for it. The only caution

given the men on the part of the servants or agents

of the railroad was that they should be careful not to

hurt anyone in throwing the wood off. The foreman

of the gang was the man who usually gave such in-

structions.

In that case, as the train passed the plaintiff, an

employee of the defendant, another workman on board —

threw from the car on which he was standing, a stick

of bridge timber about six inches square and about

six feet long. It struck the ground and rebounded,

striking the plaintiff, and permanently injuring him.

_—

23

Mr. Justice Peckham, who delivered the opinion of

the Court, cogently commented, at page 142:

«* * * Tf, however, it had been proven in that

ease that it was the custom on the part of the

porters on that car to throw these bundles off

while the train was in motion, and that this cus-

tom was known to the officers of the company,

and was permitted by them, with the simple in-

junction that the porters should take care, and

not hurt anybody, and if the jury found that the

act was one dangerous in its nature, we think

there is no doubt that the defendant would be

liable for the injuries resulting from any one of

such acts.”? (Italies the writer’s.)

In Palum v. Lehigh Valley R. Co., a most recent

ease decided by the Cireuit Court of Appeals, Second

Circuit, 165 F. 2d 3, decided January 7th, 1948, deal-

ing with customs and practices of railroads, Augustus

N. Hand, Cireuit Judge, aptly remarked on page 5:

“It would certainly have been safer to send a

fireman over the route who was familiar with it

and there was evidence indicating that this safer

method, if not invariably practiced, was generally

employed. In such circumstances we think it was

required by the recent decisions of the Supreme

Court to leave to the jury the question of whether

that safer method should not have been chosen.”

(Italics the writer’s.)

In Boston & M. R. R. v. Meech, 156 F. 2d 109,

Woodbury, Circuit Judge, appropriately held, on page

111:

“Tt may be that the locomotive was being

operated in the way usual and customary for the

maneuver which resulted in the death of the de-

24

cedent, but nevertheless the fact remains that it

could have been operated more carefully. Another

man could have been assigned to ride with the

hostler to keep a lookout from the fireman’s side

of the cab or from the rear of the tender for

workmen in the vicinity of the engine house, who

might be presumed to be busy and hence inat-

tentive at times to their own safety, * * *.”

(Italics the writer’s.)

A writ of certiorari to the United States Supreme

Court in that action was denied on October 28, 1946,

as reported in 67 S. Ct. 124.

Interesting is this language because of the fact that

in that case the Court properly reasoned that another

man could have been assigned on the job in question.

The same situation exists here for had the defendant

ordered this job done with a three or four man crew on

secure ground, this accident would never have oe-

curred.

Further, on the question of using safer methods as

distinguished from practices usual and customary

amongst railroads, this Court’s attention is called to

the case of Boston & M. R. R. v. Kyle, 156 F. 2d 112,

where in a per curiam opinion, the Court held:

“Tn affirming the judgment below it will suffice

to say that there is ample testimony in the record

to indicate, first, that although the plaintiff was

experienced in the kind of work he was doing

when he was hurt, he was at that time working

under the direction and subject to the orders of

his fellow machinist, and, second, that although

the latter directed that their work be done in the

usual or customary way, there was a safer way

in which it could have been done * * * and that,

if this safer method of procedure had been fol-

—~SEO

—

25

lowed, the injury which befell the plaintiff would

not have occurred.”’ (Italics the writer’s.)

It is therefore apparent that the establishment of

a custom and practice on any given railroad as to the

manner of doing a certain type of work, does not in

and of itself exempt the railroad from liability.

Juries at all times are permitted sufficient leeway to

deliberate as to whether or not the established cus-

toms and practices are dangerous ones, or, in the

alternative, whether safer methods could not have

been employed under the circumstances. Respond-

ent contends therefore that the jury in the instant

ease was properly allowed to pass on this question

and, as is evidenced by its verdict, actually did find

that the petitioner’s practice of using a two car-man

crew on this assignment was a dangerous one and

that it was safer to use its other practice of assigning

a three car-man crew and using its other parapher-

nalia, such as work and door benches including their

crews, crane and/or tractor equipment and maneuvers

including its crew, ete.

For the reasons incorporated and outlined herein

it beeomes unnecessary to comment upon the cases

cited in the second point of petitioner’s brief since

those cases do not apply and are distinguishable from

the facts in the instant case. In addition the cases of

Cartwright v. Atchison T. & S. F. Ry. Co., 228 Fed.

872 and Unadilla Valley R. Co. v. Caldine, 278 U. 8S.

139, 49 8. Ct. 91, 73 L. Ed. 224, were decided prior

to the abolishment of the assumption of risk defense.

an

26

POINT Ill.

The refusal of the Trial Judge to direct the jury to

bring in a written verdict did not constitute reversible

error.

Immediately prior to summation of both counsel,

petitioner’s attorney submitted to the Court Exhibit

C for Identification as the proposed form of a written

verdict by the jury. In denying said request the

Court remarked:

“The Court: I return your request. It is

really nothing more than will be covered by my

charge to the jury. As to having a written ver-

dict, I see no necessity for it at the present time.”

to which procedure petitioner’s counsel excepted (Ex-

hibit C, p. 295, fols. 697-699).

On page 14 of his brief, petitioner’s counsel claims

that as a result of the Trial Court’s ruling on this

request,

“The defendant has been prejudiced by the

Court’s refusal.’’

This contention is clearly fallacious.

It is conceded that if the Court thereafter failed to

include in its charge, the general contents of said ex-

hibit and petitioner’s counsel timely took exception

thereto, thereby affording the Trial Court an oppor-

tunity to eure such omission, then reversible error

would have been committed upon the Court’s refusa!

to amplify its charge or direct the written verdict

requested.

27

An examination of the record, however, reveals

beyond any question of doubt that all the matter con-

tained in Exhibit C was fully covered in the Court’s

charge, all of which petitioner’s counsel fully appre-

ciated, for when the Court upon completion of its

charge specifically inquired whether petitioner’s coun-

sel took any exceptions or desired any requests, Mr.

Combs remarked :

“Mr. Combs: I have none, your honor’? (fols.

723, 700-724).

Petitioner’s counsel in a criticizing vein further

argues, on page 14 of his brief, that:

“The Cireuit Court held that under Rule 49—

Federal Rules of Civil Procedure—the Trial

Judge has full, uncontrolled discretion in the mat-

ter and that, therefore, the Cireuit Court cannot

hold that the Trial Judge erred when, as here, for

any reason or for no reason whatever, he refused

to demand a special verdict.”’

Hughes on Federal Practice, interpreting said rule,

states:

“See, 24303. Special Verdict Discretionary.

Under the rule the court is not required to sub-

mit a special verdict in any case. The rule

merely authorizes the court to submit a cause on

special verdict, the language of the rule being

‘may’ thus leaving it within the discretion of the

court. whether or not a cause should be so sub-

mitted.”’

Concededly therefore the Trial Judge may make

one of two rulings in this type of case, namely, to de-

cide whether to accept at the jury’s hands a general

or a special written verdict. For defeated counsel to

—

whimper immediately that this discretionary power

has been abused merely because the Trial Court

directed that a general verdict be returned and to per-

mit such counsel to accuse an Appellate Court of

having erred in not reversing for this reason, is

similarly fallacious.

True, much has been written by some Appellate

Courts on the desirability and preference of special

jury verdicts over general jury verdicts to the end

that Appellate Courts could more easily detect error

creeping into jury deliberations.

With full realization that the following argument

is being submitted to the highest Appellate Court of

this great and revered land, the writer is moved to

inquire if our worthy and learned Federal Trial

Judges, bearing their most difficult tasks during the

tenure of a civil jury trial, as in the instant case, are

in no wise to be considered? Are they not sufficiently

competent and adequately equipped to be entrusted

with the discretionary power actually afforded them

under said rule to properly determine in any given

ease whether their juries shall hand down in one in-

stance a general verdict and in another a special

verdict? Are our much respected Federal Trial

Judges not in the best position, having questioned

and carefully observed the individual jurors during

the course of a civil jury trial, to intelligently deter-

mine the type of verdict the particular jury shall

deliberate on as being fair to all litigants concerned?

The writer sincerely reasons that the rule in ques-

tion was so promulgated by this very learned and

respected Court with some such thoughts in mind

and therefore fails completely to follow the untenable

argument of the petitioner’s counsel in his contention

28

_— aire

29

that the trial judge abused his discretionary powers

in this instance.

That the Cireuit Court of Appeals below, by its

ynanimous affirmance, similarly rejects petitioner’s

contention, is most evident from an examination of

the following excerpts included in the opinions of

Circuit Judges Frank and L. Hand. Judge Frank

states, 167 F. 2d 54, at pages 55 and 56:

«“* * * Since the judge properly charged with re-

spect to a deduction for contributory negligence,

pursuant to the Act, we must assume that the jury

made such a deduction. * * *.

Defendant argues that the judge erred in deny-

ing its request for a special verdict. We cannot

agree.”

Again on pages 66 and 67:

«* * * the federal district judge, under the

Rule, has full, uncontrolled discretion in the

metter: * * *.

Accordingly, we cannot hold that a district

judge errs when, as here, for any reason or no

reason whatever, he refuses to demand a special

wie, => *"

L. Hand, Cireuit Judge, remarks on page 70:

“T coneur in holding that there was evidence

to support the verdict, and that it was not an

error to refuse to take a special verdict along with

a general verdict.”’

In W. B. Grimes Dry-Goods Co. v. Malcolm, et al.,

17S. Ct. 158, 164 U. S. 483, Mr. Justice Harlan aptly

remarked on page 160:

‘‘The submission of special questions to the jury

30

is, under the statute, in the discretion of the court,

It was so held in Railway Co. v. Pankhurst, 36

Ark. 371, 378. Independently of the statute of

Arkansas, this court has held that ‘the personal

conduct and administration of the judge in the

discharge of his separate functions was neither

practice, pleading, nor a form or mode of pro-

ceeding’, within the meaning of the practice act

of June 1, 1872 (17 Stat. 197), now section 914

of the Revised Statutes, and that ‘the statute was

not intended to fetter the judge in the personal

discharge of his accustomed duties, or to trench

upon the common-law powers with which in that

respect he is clothed.’ Association v. Barry, 131

U. S. 100, 119, 9 Sup. Ct. 755, 761.”’

See also, Erie R. Co. v. Downs, 250 Fed. 415, decided

by the Cireuit Court of Appeals, Second Circuit, prior

to the abolishment of the assumption of risk defense

in the Federal Employers’ Liability actions, where

Rogers, Circuit Judge, cogently commented at page

420:

‘‘There was no special question submitted as to

whether the accident happened as a result of one |

of the risks which defendant claimed that the

plaintiff assumed. If the plaintiff had assumed

the risk, that fact constituted an absolute defense.

The defendant claims that by not including the

question as to whether plaintiff had assumed the

risk in the number of questions upon which the

court required a special finding it in effect with-

drew from the consideration of the jury that ques-

tion. Counsel for defendant expressly requested

the submission of a special question on assumed

risks. The court said: ‘I decline to send that as

a special question to the jury’. Counsel took an

exception. The court then said: ‘That they will

take care of in their general verdict’. We are

_ oe

31

not prepared to say that this constituted re-

versible error, as the jury had been fully

instructed on that subject, and must have under-

stood perfectly that, if plaintiff assumed the risk,

he could not recover.”’ (Italics the writer’s.)

In McAuliffe v. New York Central & H. R. R. R.

(o., 172 App. Div. 597, 158 N. Y. 8, 922 (2d Dept.),

the Court remarked at pages 926 and 927:

‘‘Defendant’s counsel asked the trial court to

direct the jury to find specially ‘what proportion

of the plaintiff’s negligence contributed to the

accident, in case they should find that the plain-

tiff’s negligence was not the sole cause of the

injury’. This the court denied, to which defend-

ant excepted. The federal statute, by which con-

tributory negligence lessens the damages, is

borrowed from the early negligence rule in

Illinois, and the existing Georgia practice now

embodied in Georgia statutes (Thornton, Fed.

Emp. Liability (3d Ed.) See. 78); also from the

admiralty rule of apportionment (60 Cong.

Record, p. 4536, quoted by Thornton, p. 169).

* * x *

At the date of this trial (February 15-24, 1915)

juries did not generally return special verdicts

under this statute. * * *

* * * Vet, according to the trial practice as

understood and followed a year ago, both in the

federal and state tribunals, we cannot say that

the court committed reversible error in refusing

counsel’s request.”’

In support of petitioner’s contention that the Cir-.

euit Court erred in declaring that the trial judge had

full, uncontrolled discretion in this matter and that

therefore it could not hold the trial judge erred

when he refused to demand a special verdict, counsel

—

for petitioner cites, on pages 14 and 15 of his brief,

six separate Federal Court decisions none of which,

it is respectfully argued, apply to the proposition of

law here involved.

32

The ease of Charles D. Newton v. Consolidated Gas

Company of New York, 259 U. 8. 101, 66 L. Ed. 845,

involved Equity Rule 68 (33 Sup. Ct. XX XVIII)

which provided as quoted by this Court on pages 104,

105:

*“‘The District Court may * * * appoint a master

pro hac vice in any particular case. The com-

pensation to be allowed to every master shall be

fixed by the District Court, in its discretion, hav-

ing regard to all the circumstances thereof, and

the compensation shall be charged upon and

borne by such of the parties in the cause as the

court shall direct.”’

In that case the District Court allowed a duly ap-

pointed Special Master for 282 days work, fees

amounting to $118,000. This Court in reducing said

amount to $49,250 cogently commented, page 105:

“‘Diseretion within intendment of the rule is

a judicial one. It does not extend to arbitrary

and unreasonable action; and our review is limited

to the question of its improvident exercise.”’

The cases of Central Trust Co. of New York v.

United States Light and Heating Co., et al., 233 Fed.

420 and City of New Orleans v. Malone, 12 F. 2d 11,

dealt with the same proposition, namely, the fixing of

fees by a Federal District Judge.

The case of A. Howard Myers, et al. v. Bethlehem

Ship Building Corporation, 303 U. 8S. 41, 82 L. Ed.

— wae

33

638, stands for the principle that since the District

Court had no jurisdiction of a shipbuilding company’s

suit to enjoin the National Labor Relations Board

from holding hearings on a complaint filed by the

Board against the company, the Cireuit Court of

Appeals should have reversed the District Court’s

decree granting a preliminary injunction.

Central Trust Co. v. Chicago, Rock Island, etc.,

(‘o., 218 Fed. 336, 134 C. C. A. 144, involved the de-

nial by a Federal District Judge of a petition for

leave to intervene in a foreclosure suit where the

Appellate Court held, on page 339:

“The general rule is that the denial of a peti-

tion to intervene is discretionary and therefore

not appealable. The discretion, however, must

be exercised in accordance with recognized judi-

cial standards.”’

United States v. Haupt, et al., 136 F. 2d 661, was

a criminal lawsuit involving many questions, one of

which dealt with the Trial Court’s refusal to sever

on motion of some of the defendants whereupon the

Appellate Court held, on page 672:

“The crux of the attack upon the alleged un-

fairness of the trial revolves in the main around

the court’s denial of defendants’ motion for sever-

ance. It is earnestly insisted that it was im-

possible under the circumstances for the indi-

vidual defendants in a joint trial to obtain a fair

and impartial hearing. * * * The main argument

as to the alleged unfairness of a joint trial has

to do with the prejudicial effect of certain evi-

dence offered by the government.”’