# Opposition Brief — Baltimore & Ohio Railroad v. Skidmore > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1720%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1948 - **Citation:** 335 U.S. 816 ## Text 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? *" 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.”’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1720%3A2. Public record. Not legal advice.