Petition for a Writ of Certiorari — Lyle v. Atchison, Topeka & Santa Fe Railway Co.

Supreme Court brief1950

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PLEA Se het RCE «LIL RES

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Puyapir te Cr anor Cano

CHARLES Fi Mage CR

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser TERM, 1949.

No. 267

JACK F. LYLE,

Petitioner,

vs.

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY

COMPANY, a corporation, and GULF, COLORADO AND

SANTA FE RAILWAY COMPANY, 3 corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT AND BRIEF IN SUPPORT THEREOF.

J GEORGE F. BARRETT,

39 South LaSalle Street,

Chicago 3, Illinois,

Counsel for Petitioner.

MARION J. HANNIGAN,

JULIUS S. NEALE and

WALTER E. MOSS,

77 West Washington St.,

Chicago 2 Illinois,

Of Counsel.

Midwest Law Printing Co., 340 W. Huron St., Chicago

SUBJECT INDEX.

PAGE

) Petition for Writ of Certiorari |

Foreword 1

Decision and judgment of Court below...................... 2

Nature of case and summary statement of matter

INN diciibedetipncdshiniaiiie EAE Se 3

The pleadings 3

The facts ..... 7

Jurisdiction of this Court 19

Questions presented 19

Reasons relied on for allowance of the Writ....... 22

Prayer for Writ 30

Brief in Support 31

Opinion of Court below . 31

Statement of the Case 32

Specification of errors to be urged 32

SIE OEE CIIIINOIIIE Wisiasssssorsiericiincansicnonbeabhcenstananienni 34

Propositions of Law ..................... % 35-37

Argument :

(1) Respondents admit they are a highway of in-

terstate commerce. The applicability of the

Boiler Inspection Act is not affected by the

fact that the accident and injury to petitioner

occurred in the yards of respondents................ 38

(2) The Boiler Inspection Act is to be liberally

construed in the light of its prime purpose, the

protection of the employees and others by re-

quiring the use of safe equipment 44

(3) Locomotive Number 3939, involved here, had

not been withdrawn from service. At the time

of the accident and injury to petitioner it was

‘in use’’ and ‘‘in service’’ and the Boiler In-

spection Act is applicable ‘ . 4

(4) The Boiler Inspection Act, fairly interpreted,

must be held to protect all who need protec-

tion from dangerous results due to mainte-

nance or operation of Congressionally prohib-

ited defective appliances ................... 57

Summary or ARGUMENT.

ze:

Respondents admit that they are a highway of inter-

state commerce. The applicability of the Boiler

Inspection Act is not affected by the fact that the

accident and injury to petitioner occurred in the

yards of respondents 1-38-48

Petitioner brought his action under the Federal Em-

ployers’ Liability Act, alleging a violation of the

Federal Boiler Inspection Act, to recover damages

for injuries sustained on January 10, 1946, in the

yard of respondent, Gulf Company, at Gainesville,

Texas, where he had been employed as_ hostler

helper since November 1, 1945 38

After Locomotive Number 3939, owned by Atchison

Company but operated into the yards of Gulf Com-

pany by employees of Gulf Company, then oper-

ated by hostler but serviced by petitioner at sand

spout, water spout and oil spout, with sand, water

and oil and left by hostler over inspection pit

where petitioner finished his work but returned to

iii

put in place journal box lid hook and waste bucket

that were out of place, and on leaving top of tender

through engine cab, stepped into grease on top

step, fell and was injured 38-48

The breadth of the Safety Appliance Act is such that

it embraces all locomotives, cars and similar ve-

hicles in use on highway of interstate commerce,

irrespective of use at any particular time........ 40, 41, 42

The Interstate Commerce Commission has set the

standard of use and degree of safety by promulgat-

ing rule Number 153, that top of tender shall be

kept free from foreign matter which would render

footing insecure, such as grease, water, ice. Lilly

v. Grand Trunk R. Co., 317 U.S. 481...........000...... 42, 43, 44

Jury, instructed only on Boiler Inspection Act to

which respondents took no exception, could find

there was a violation of the Act by reason of grease

on step in question, the presence of which was un-

known to petitioner, and which may not be ex-

plained away .. 43, 44

II.

The Boiler Inspection Act is to be liberally construed

in the light of its prime purpose, the protection of

the employees and others by requiring the use of

safe equipment 44-46

The Boiler Inspection Act is remedial in character,

makes it unlawful to use locomotive unless its

boiler, tender, and all parts and appurtenances

thereof are safe to operate in the service to which

the same are put, that the same may be employed

in the active service of the carrier without unneces-

sary peril to life or limb 45

The Boiler Inspection Act, like the Safety Appliance

Acts, is to be liberally construed in the light of its

prime purpose, the protection of employees and

others, by requiring the use of safe equipment......

III.

Locomotive Number 3939 involved here, had not been

withdrawn from service. At the time of the acci-

dent and injury to petitioner it was ‘‘in use’’ and

“fin service’’ and the Boiler Inspection Act is ap-

plicable ‘ 46-47

The opinion of the United States Court of Appeals

for the Seventh Circuit is far reaching in that it

withdraws from the hostler helper and also the

hostler, when engaged in servicing of locomotives

in the yards of carriers, the benefit of the Safety

Appliance Acts, including the Boiler Inspection Act

which have heretofore been repeatedly held to ap-

ply to brakemen, inspectors and others and other

yard employees of the carrier

The hostler drove locomotive from spot to spot, while

petitioner serviced it with sand, water and oil. The

hostler drove it to inspection pit where it was par-

tially inspected by Matthew Jackson Hassell and

petitioner finished his work......

That this locomotive was ‘‘in use’’ and ‘‘in service’’

is conclusively demonstrated by Brady v. Terminal

R. R. Assn., 303 U.S. 10, which cites and distin-

guishes New York C. and St. L. R. R. Co. v. Kelly,

70 Fed. 2d 548, 551, and other cases relied upon by

United States Court of Appeals for Seventh Cir-

cuit .... ..48, 49, 50

Confesedly, Locomotive Number 3939 was under the |

control of the Act of Congress and ‘‘in use’’ and

‘in service’ while making its interstate journey

and it was equally so in respondents’ yard as it was

advanced from spot to spot by the hostler while be-

ing serviced and made ready for its next trip by

petitioner. Johnson v. Southern Pac. Co., 196 U.S.

1, 21, No. Car. R. R. Co. v. Zackary, 232 U.S. 248,

260 51, 52, 53, 54

Locomotive Number 3939 had just completed an in-

terstate run and was being made ready for another

interstate run. It was one of eight or ten locomo-

tives serviced by petitioner during an eight hour

shift. It was stopped only temporarily. The facts

here clearly distinguish it from eases cited by re-

spondents where cars have been sent to repair

shops or placed upon dead tracks used for repair

purposes. It was ‘‘in use’’ and ‘‘in service”’ at the

time of the accident and injury to petitioner....55, 56, 57

IV.

The Federal Boiler Inspection Act (45 USCA, Sec.

23), fairly interpreted, must be held to protect all

who need protection from dangerous results due to

maintenance or operation of Congressionally pro-

hibited defective appliances 57-61

There was evidence from which the jury could find

against respondents for a violation of the Federal

Boiler Inspection Act, and they did 57, 58

Presence of grease, existence of which was unknown

to petitioner, on the top step of the tender next to

locomotive cab, established by the evidence, con-

stituted a violation of the Federal Boiler Inspec-

tion Act. The jury determined that such breach

was at least ‘‘a contributory proximate cause’’ of

the accident resulting in injury to petitioner while

in the discharge of his duties as a hostler helper,

involving ‘‘unnecessary peril to life and limb” and

sufficient to permit jury to find that Federal Boiler

Inspection Act had been violated 59, 60

Case was properly submitted to jury under Federal

Boiler Inspection Act, and the issues having been

resolved in favor of petitioner, the judgment of the

trial court should have been affirmed 60

TABLE OF CASES.

Baltimore & Ohio v. Groeger, 266 U.S. 521, 69 L. ed.

419, 423, 424 28

Brady v. Terminal R. R. Assn., 303 U.S. 10, 13, 15...

22, 25, 28, 35, 36, 37, 40, 44, 45, 49, 50, 59

Carter v. Atlanta & St. A. B. R. Co., 338 U.S. ...., 94

L. ed. 183, 186, 187 ..... 35, 37, 42, 44, 60

Chicago G. W. R. R. Co. v. Schendel, 267 U.S. 287,

291 22, 36, 50, 51, 54

Coray v. Southern Pacific Co., 335 U.S. 520, 522, 523..

24, 25, 28, 37, 58

Davis v. Wolfe, 263 U.S. 239, 243......24, 25, 36, 37, 46, 58, 59

Delk v. St. Louis & San Francisco R. R. Co., 220

U.S. 580, 584, 586 50

Erie Railroad Co. v. Collins, 253 U.S. 77, 84, 85.......... 35, 41

Erie R. Co. v. Russell, 2 Cir., 183 Fed. 722, 724, Cert.

den. 220, U.S. 607 .. 28, 35, 36, 56

PA ee

vii

Erie Railroad Co. v. Szary, 253 U.S. 86, 89, 90......35, 41

Fort St. Union Depot Co. v. Hillen, 6 Cir., 119 Fed.

2d 307, 312, Cert. Den. 314 U.S. 642 27, 36, 55

Great Northern Railway Co. v. Otos, 239 U.S. 349,

351 36, 50, 56

Johnson v. Southern Pacific Co., 196 U.S. 1, 10, 21...

22, 28, 35, 36, 37, 41, 50, 51

Lilly v. Grand Trunk R. Co., 317 U.S. 481, 485, 486...

aes 25, 35, 36, 37, 44, 46, 59, 60

Louisville & N. R. Co. v. Botts, 8 Cir., 173 Fed. (2d)

164 35, 36, 41, 42

Louisville & Nashville R. R. Co. v. Layton, 243 U.S.

617, 621 25, 28, 35, 36, 37, 45, 58, 59

Minneapolis etc. Railway Co. v. Goneau, 269 U.S. 406,

409, 410 22, 28, 36, 51, 55

Moore v. C. & O. Ry. Co., 291 U.S. 205, 214......35, 40, 41

Myers v. Reading Co., 331 U.S. 477, 482, 483...........

24, 25, 36, 37, 46, 59

No. Car. R. R. Co. v. Zachary, 232 U. S. 248, 260 ..35, 37, 52

O’Donnell v. Elgin, Joliet & E. R. Co., 338 U.S. ......,

94 L. ed. 170, 172 ...... 35, 37 42, 44, 60

San Antonio Ry. Co. v. Wagner, 241 U.S. 476, 483.35, 41

Swinson v. Chicago, St. P. M. & O. Ry. Co., 294 U.S.

529, 531 36, 37, 45, 60

Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33......

35, 37, 41, 56

Tipton v. A. T. & S. F. Ry. Co., 298 U.S. 141.......... 35, 41

eee

Urie v. Thompson, 337 U.S. 163, 194, 195 37, 59

Wabash R. Co. v. United States, 7 Cir., 168 Fed. 1,

3, 35, 41

Statutes Crrep.

Federal Employers’ Liability Act, 45 U.S.C.A., See.

51 et seq. 38

Federal Boiler Inspection Act, 45 U.S.C., See. 23.38, 40, 45

eA Sige PA ng th

Lap phphait

IN THE

SUPREME COURT OF THE UNITED STATES

Ocrosger Term, 1949.

JACK F. LYLE,

Petitioner,

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY

COMPANY, a corporation, and GULF, COLORADO AND

SANTA FE RAILWAY COMPANY, a corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Comes now Jack F. Lyle, the above named petitioner,

and respectfully petitions this Honorable Court to grant

a Writ of Certiorari to review the decision and judgment

of the United States Court of Appeals for the Sev-

enth Circuit, entered on the 7th day of October, 1949,

in the case lately pending in the United States Court of

Appeals, for the Seventh Circuit, styled Jack F. Lyle,

Plaintiff and Appellee, v. The Atchison, Topeka and Santa

Fe Railway Company, a corporation, and Gulf, Colorado

and Santa Fe Railway Company, a corporation, defend.

ants and appellants, being Number 9801 of the cause on

the docket of the United States Court of Appeals for the

Seventh Circuit reversing the judgment of $15,000.00 and

costs of the District Court of the United States for the

Northern District of Illinois, Eastern Division, in said

cause, in favor of your petitioner and against the re.

spondents, entered on the verdict of a jury which had

found for petitioner and assessed his damages at the

sum of $15,000.00.

On the 2ist day of October, 1949, petitioner filed a

petition for rehearing in the United States Court of Ap

peals for the Seventh Cireuit (Tr. 187) which respondents

answered (Tr. 207). On the 3rd day of November, 1949,

petitioner’s petition for rehearing was denied (Tr. 215)

and said judgment of the United States Court of Appeals

thereupon became final.

Decision and Judgment of the Court Below.

The final decision and judgment of the United States

Court of Appeals for the Seventh Circuit is reported in

177 Fed. (2d) at page 221 and appears at pages 181-186

of the record filed herewith. In the District Court of the

United States for the Northern District of Illinois, the

defendants’ motions for judgment in accordance with the

motions for directed verdict, for judgment notwithstand-

ing the verdict, or for a new trial (Tr. 116, 162) filed on

October 1, 1948, after submission of briefs, were, on No-

vember 16, 1948, denied (Tr. 163) and respondents ap-

pealed (Tr. 164).

wT ww wT wes EES

Nature of Case and Summary Statement of the

Matter Involved.

On March 18, 1946, Petitioner, as plaintiff, brought an

action at law under the Federal Employers’ Liability

Act (Title 45 U.S. C.A. See. 51 et seg.) charging a viola-

tion of the Boiler Inspection Act (Title 45 U.S.C.A. See.

23) in the District Court of the United States for the

Northern District of Illinois, Eastern Division, against

respondents, the defendants, The Atchinson, Topeka and

Santa Fe Railway Company, a corporation, and Gulf,

Colorado and Santa Fe Railway Company, a corporation,

hereinafter referred to as Atchinson Company and Gulf

Company respectively, engaged in interstate commerce, to

recover damages for injuries sustained by him on Janu-

ary 10, 1946, in the yards of the respondent, Gulf Com-

pany at Gainsville, Texas, where petitioner had been

emplbyed since November 1, 1945, as a hostler helper.

The Pleadings.

Tle original complaint was filed on March 18, 1946

(Tr.2) and answers by both defendants on April 15, 1946

(Tr. 7, 8, 9 and 10). By stipulation filed on August 29,

1947. (Tr. 138, 14) paragraph V of Petitioner’s complaint

was amended as set forth in said stipulation, and sub-

paragraph 7 was added to paragraph VI of said com-

plaixt; by stipulation subsequently filed, it was agreed

thatthe answers of respondents to the original complaint

stani as to the complaint as amended (Tr. 12).

By paragraph III of the complaint as amended (Tr. 3)

it isalleged that at the time of the occurrence petitioner

was in the employ of the respondents and each of them

on their said line and system of railroad and suid re.

spondents and each of them were then engaging in the

business of interstate commerce and interstate transpor. |

tation as common carriers by railroad, and petitioner

was then employed by respondents and each of them

therein, and that the duties of his employment and the

performance thereof, either in whole or in part, were in

the furtherance of interstate commerce and directly,

closely and substantially effected such commerce.

Paragraph V of the petitioner’s complaint as amended

(Tr. 14) is as follows:

‘**That on or about November 1, 1945, the plaintiff

entered the employ of the defendants and each of

them as a hostler helper and on or about January

10, 1946, at the time of the occurrence hereinafter

alleged, he was engaging in the course and scope of

his employment as a hostler helper for the defend-

ants and each of them in the yards of the defendants

and each of them in Gainsville, Texas, and at said

time was working on and about the Atchinson, Topeka

and Santa Fe Railway Company’s Engine No, 3939,

which was standing over the inspection pit near the

round house in the aforesaid yard of the defendants

and each of them. That said engine had just com-

pleted an interstate run and was being made ready

for another interstate run. That plaintiff, in the

course of his employment, went to the top of the

water and fuel tank of said engine to remove a

journal lid hook and pail of journal waste and after

completing said work, the plaintiff proceeded to leave

the top of the water tank and to step on the steps

provided at the end of the tank between the engine

cab and the tender, and while he was descending said

steps and holding on to the grab iron, he was caused

to slip on oil and grease and foreign substance and

to strike his elbow and fall.’’

aS “<“ ph ee

a—aeETeanraawr wwe wei : | WwFeFe™s:= & Se CoO

By paragraph VI of petitioner’s complaint it was al-

leged that the occurrence and resulting injuries to peti-

tioner were directly and proximately caused by the viola-

tion by respondents and each of them of the Boiler In-

spection Act of the United States; of defendants’ failure

to observe the rules, customs and practices then and there

in force on said road and the rules, orders and regula-

tions of the Interstate Commerce Commission; and the

negligence and carelessness of respondents and each of

them in that respondents and each of them used and

permitted to be used on its line and system of railroad

a locomotive tender which was not in proper condition

and which was not safe to operate in the service to which

the same was put, and respondents and each of them em-

ployed the same in their active service which caused

unnecessary peril to the life and limb of petitioner (Tr.

4); that respondents and each of them, failed to keep the

top of the tender of the said engine behind the fuel

space clean as required by the rules of the Interstate

Commerce Commission; negligently failed to maintain

and provide for the petitioner, a reasonably safe place

to work (Tr. 4, 5); and by added sub-paragraph 7 to

paragraph VI of said complaint, that respondents negli-

gently caused and permitted oil and grease and foreign

substance to be and remain and accumulate on the steps,

ladder, grab iron, parts and appurtenances of its tender

and locomotive and negligently failed to make a timely

and adequate inspection thereof, and to give the petitioner

timely and adequate warning of the unsafe and hazardous

condition thereof (Tr. 14).

The answers of both respondents (Tr. 7, 9) admitted

jurisdiction of the United States District Court based

upon the Employers’ Liability Act of the United States.

The answers of both respondents admitted that they

were duly organized and existing railroad corporations

and that they were at all times mentioned, in the business

of owning, maintaining and operating a line and system

of railroad in interstate commerce and interstate trans-

portation, as common carriers by railroad (Tr. 3, 7, 10).

In other words the railroads of respondents were high-

ways of interstate commerce, and the locomotive here jn.

volved was in use upon a highway of interstate com.

merce.

By its answer to paragraph V of the complaint as

amended (Tr. 8), the respondent, Gulf Company, ad-

mitted the employment of petitioner as hostler helper;

and that he was at said time working on and about

Engine Number 3939, which was standing over the in-

spection pit near the round house in the yard of said

respondent; that said engine had just completed an in

terstate run and was being made ready for another run;

that petitioner in the course of his employment went

on the top of the water and fuel tank of said engine,

but denied the remainder of said paragraph (Tr. 8).

The respondent, Atchison Company, by its answer, de-

nied paragraph V of said complaint as amended, (Tr. 10).

On the trial it was stipulated (Tr. 144, 170) that the

locomotive in question was a locomotive owned by the

Atchison Company and that it had been operated into

this particular place in Gainsville by employees of the

Gulf Company.

At the close of the evidence (Tr. 170) counsel for

petitioner stated in open court ‘‘on the proposition of

negligence this cause of action is not proceeding on any

theory of negligence. For the purpose of the record at

Sis hy Pa Rit ca

this time, it is proceeding on the theory of violation

of the Boiler Inspection Act’’ (Tr. 170).

Counsel for petitioner further stated:

“This action at this particular stage proceeds on

two theories, so far as liability is concerned, we have

proven in my judgment, a violation of the Boiler

Inspection Act. In addition to that, we have shown

Negligence so far as there not being a light there,

when they knew one had been burned out for suf-

ficient length of time for them to know about it’’

(Tr. 170).

Counsel for petitioner further stated, ‘‘This case is

to be submitted by plaintiff’s instructions as to both de-

fendants based upon the violation of the so-called Boiler

Inspection Act’’ (Tr. 170).

“‘The Court: There will be no instructions on

general negligence counts. I intend to give instruc-

tions as to violation of the Boiler Inspection Act.’

(Tr. 171).

The instructions given by the Court below to the jury

were not included by respondents in the transcript of

record on appeal filed in the Court of Appeals. No ques-

tion on the instructions has been raised by either peti-

tioner or respondents.

The Facts.

Petitioner, Jack F. Lyle, who entered the employ of

respondent, Gulf Company, as a hostler helper, on No-

vember 1, 1945, was born on May 3lst, 1908. He had

farmed for several years, then worked on construction

work in Cook County, Texas, was in the United States

Army three years and seven months (Tr. 18). And after

his discharge from the Army, and on November Ist, 1945,

went to work for the respondent, Gulf Company, as a

hostler helper (Tr. 19). Prior to January 10, 1946, his

health had been good. He had never been injured in

any way, or confined to a hospital (Tr. 18). A day or

two before he went to work, he was examined for the

railroad company by a doctor at Gainsville, Texas. Prior

to that time, he had never worked for a railroad com.

pany. Prior to January 10, 1946, he received $72.00 every

two weeks (Tr. 19). He worked from 3:30 to 11:30 o’clock

at night, seven days a week (Tr. 19, 57). During a working

day he worked on as many as eight or ten engines (Tr,

20). In school, he only got about as far as the 6th grade

(Tr. 43); and other than laboring work, he had no ocen-

pation (Tr. 43).

Petitioner, concerning the work of the hostler helper,

(Tr. 19) said: ‘‘We had to put sand in the domes of the

engine. Then we had to put in oil and water. We had

to fill the lubricators, keep waste and a lot of things

like that on the engine’’ (Tr. 19, 48). The hostler, he

said, drove the engine. He is a yard engineer or a round

house engineer (Tr. 19, 48). The hostler acts in the

capacity of a railroad engineer, only he stays in the yard.

The hostler helper does not help the hostler nor does

the hostler help the hostler helper (Tr. 48).

On January 10, 1946, this particular locomotive, En-

gine Number 3939, which was owned by the respondent,

Atchison Company, but was being operated into this par-

ticular place in Gainesville by employees of the respond-

ent, Gulf Company (Tr. 44), came into Gainesville from a

run about 8:00 o’clock P.M. It was dark at that time.

A fine mist was falling and the ground was damp (Tr.

21). The exposed surface of the locomotive and tender

was wet (Tr. 21).

After the engineer and fireman had left the engine,

the hostler got up into the cab. Petitioner, Lyle, crawled

he el ee he ee eT ie

up on the front of the locomotive to the cat walk, holding

on to a long hand rail that ran across there, to put sand

in the sand dome. The hostler moved the locomotive to the

sand chute where petitioner Lyle filled the sand dome on

top of the locomotive (Tr. 21, 22).

It was dark. He had a flash light with him (Tr. 21, 22).

The top of the tender is flat. While putting sand in the

sand dome he was on the catwalk. That took five or ten

minutes (Tr. 22).

He had crawled over the top of the cab of the loco-

motive to the tender of the engine. The hostler, at that

time, was backing the locomotive south to the switch,

something like 150 to 200 feet where it stopped.

Petitioner, Lyle, then crawled down the back of the

tender on a form of ladder to the ground, where he threw

the switch (Tr. 23). After he threw the switch the

hostler backed on back further and petitioner threw the

switch and the locomotive came North again on the North

track to a service track (Tr. 24). As the locomotive came

on North again, petitioner caught the back end and

crawled up the back end of the tender on the same ladder

that he went down (Tr. 24).

From that switch to where you put the water in, op-

posite the water spout, was around 100 feet; while run-

ning the 100 feet he was climbing up on the top of the

tender and the locomotive stopped opposite the water

spout (Tr. 24). Putting in the water consumed around

fifteen minutes (Tr. 24).

The next move the locomotive made, after putting in

the water was about 25 feet to put the oil in (Tr. 25).

To put oil in the locomotive there is a top that you have

to undo and throw back and you have to take a long hook

and pull a big spout around and put a big thing down

into the hole that you slip up and down and make it any

distance you want to. Putting the oil in the tank took

around fifteen minutes (Tr. 25). He did not spill any

oil that he knew of. During that time this misting or

raining was continuing (Tr. 25).

After putting oil in the tank of the locomotive the

hostler had to go back to this switch again, and when

he got back to the switch again, petitioner had to crawl

down the back of the tender to the ground where he

threw the switch (Tr. 25, 26). The locomotive then backed

south further and then up through the switch again. As

the locomotive came forward, petitioner threw the switch

and caught the back end of the tender, After petitioner

had thrown the switch on the second occasion, the hostler

then pulled the locomotive up to the pit (Tr. 26). The

pit is the place where they generally pull inspection on

the train, and leave the train, or work on it whenever

they have work to do, so that they can get under it. If

they possibly can, all locomotives are left there after the

hostler and hostler helper finish (Tr. 26).

From the switch up to this pit track the locomotive

traveled something around a couple of hundred feet (Tr.

26). At that time petitioner rode on the back end of the

tender (Tr. 26). When the hostler drove the locomotive

onto the pit he had completed his work and went to the

roundhouse (Tr. 32), leaving petitioner alone (Tr. 32)

with other work to do which took around thirty min-

utes (Tr. 32).

Petitioner’s next job was to check the lubricators on

the right side of the engine to see if they were full of

oil. This he did on the ground (Tr. 26). They had a house

where they kept their oil about 150 feet kind of north-

west of the train. There he got oil for the lubricators

and waste for the engine (Tr. 27).

After petitioner had taken care of the lubricators and

started for the roundhouse, he happened to think about

seeing a waste bucket and a journal box lid hook carried

on the top of the tender that were out of place (Tr. 27).

He returned boarding the tender at the rear (Tr. 52),

after he had put the waste bucket and the journal box lid

hook where they belonged (Tr. 28) he started down from

the tender through the cab (Tr. 24, 28). There were no

lights and it was dark and still misting (Tr. 28). The

roof of the cab of this locomotive in front of the tender

extended around three or four inches over the front end

of the tender (Tr. 28).

A person gets down from the top of the tender to the

deck of the locomotive cab, a distance of about five feet

by means of two fan shaped iron steps attached to the

tender (Tr. 29). The steps from side to side would be

about four or five inches wide. They stick out four or

five inches from the front of the tender (Tr. 29). The

depth of this step was about five inches and the width

three or four; on either side of the steps there were

hand rails or grab irons, about 20 inches apart, attached

to the tender which extended from the top of the tender

and down on the side but not all the way (Tr. 30). There

was just room enough for a man to come down between

them (Tr. 30).

Petitioner, facing the back of the tender, started down

backwards to the engine, using the grab irons and because

the roof of the cab of the locomotive extended over the

tender, his body had to be bent forward (Tr. 31). Ex-

cept for the dials on the locomotive, which were lit up,

there was no light (Tr. 31). He wore an Army shoe with

leather soles (Tr. 31, 32).

He stepped with his right foot on the step nearest

him and his foot slipped off (Tr. 31). And he fell to the

floor of the cab, landing on his left elbow (Tr. 32). The

distance from the first step to the deck was three or four

feet. He was alone. After petitioner fell, and was able

to get up, he looked at the step and saw a quantity of

thick, heavy blackish looking grease upon it (Tr. 32, 33),

He also wiped grease from his shoe on waste he had in

his pocket, before he could get down. He was experi-

encing pain but finally got off the locomotive, went to the

wash house, where he ate his supper and stayed around

25 or 30 minutes (Tr. 33). His boss, Mr. Hassell, was

not there. He saw some of the boys and returned to his

work. His arm pained him so that he couldn’t catch

hold of anything (Tr. 34). But he serviced a few more

engines (Tr. 34).

On the morning of the 11th petitioner was sent to Dr.

Thayer by Mr. Lemmerman at the shop (Tr. 35). Dr.

Thayer rubbed a little alcohol on his elbow, put a patch

over it, and sent him to the Santa Fe Hospital at Temple,

Texas (Tr. 35, 36) where he saw Dr. Winston on the

12th. His arm hurt and he couldn’t use it. Dr. Winston

had X-rays made and the nurses put hot applications on

his arm. He was confined in the hospital. Four days

later, on the 16th, he was operated on by Dr. Max-

well. His arm was put in a cast and he remained in the

hospital until January 22nd, when he went home (Tr.

38). He went back to Temple, Texas, on February Ist,

1946, when they took off the cast and removed the stitches

(Tr. 39). He returned three more times to Temple,

Texas (Tr. 40) where he was given heat treatments

but he was still unable to straighten his arm without it

hurting (Tr. 41). There was limitation of motion.

On cross examination, petitioner again testified as to

how the accident happened (Tr. 53), and the manner of

his fall (Tr. 53, 54). He had to lay on the deck of the

cab for five minutes or so after his fall before he got

up, looked at the steps, and saw grease on the steps from

the dials on the locomotive (Tr. 55).

He didn’t remember the names of the boys at the wash

house (Tr. 55, 56) and he didn’t tell Hassell how the

accident happened (Tr. 56, 57). Quitting time was around

11:30 (Tr. 57). Dr. Thayer gave him first aid treat-

ment and sent him to the hospital at Temple. He did

not remember Dr. Covert (Tr. 58). His last trip to Tem-

ple, Texas was on March 8th, 1946 (Tr. 59).

He identified his signatures on defendant’s Exhibits

Number 1 and Number 2 (Tr. 60, 61); admitted he signed

Exhibit Number 2 in the presence of Mr. Wier, but did

not read it (Tr. 62); that he did not ask Mr. Wier to make

any corrections on the paper signed (Tr. 145); denied

that he came down the iron steps facing the engine say-

ing that it would be impossible (Tr. 63), and denied also

many other statements attributed to him by Mr. Wier

contained in respondents’ Exhibits Numbers 2 and 2A

(Tr. 62, 63, 64, 65). His education stopped at the sixth

grade (Tr. 43).

On redirect examination, petitioner said that the work

he was doing on that evening was part of the work that

was done before an engine goes out on the run; a fire

was burning in the box of the locomotive (Tr. 70). There

should have been a lighted electric light on the oil crane

with a large bulb that would have reflected down on the

tender, so that you could see what you were doing (Tr.

70).

When he went to work on November 1, 1945, the light

was out. They fixed it and it stayed two or three days

(Tr. 71). It went out again and it had not been fixed

thereafter. It was not lighted on the night he was in.

jured (Tr. 71).

When he receives an order from the foreman, if there

is oil on the locomotive it is his duty to clean it up (Tr.

71). On that night he did not get any order to clean

up any oil or grease (Tr. 71).

He knew Mr. Lemmerman (Tr. 71). He did not pre-

pare respondents’ Exhibit Number 1 and was not in the

office of the company at Gainsville on January 26, 1946.

Mr. Lemmerman did not come to his house, The claim

agent was out at his house on January 25th. He never

saw the document dated January 26th (Tr. 72). On re

cross examination, admitted he knew J. M. Fleenor and

that on the morning of January 11th, Mr. Fleenor filled

in a form of some kind. It was not respondents’ Exhibit

Number 1 (Tr. 73). It was not on the form respondents’

Exhibit Number 1 was on. Again, he admitted his sig-

nature. He was sure that the printing was on the form

at the time he signed it. He didn’t remember what the

typewriting was (Tr. 74); admitted he cleaned up oil

at times, but did not remember whether it was his duty

(Tr. 74).

On redirect examination (Tr. 144), he testified that

he was right handed, that he could write in the month

of January, 1946, that he went to Mr. Lemmerman’s

office on the morning of January 11th, and signed some

papers there; that he hadn’t been back there at any time

since; that he did not sign respondent’s Exhibit Number

1 on January 26, 1946 (Tr. 145).

ee ee ee Te ee we a ee ey ee ee ae

He did not tell the claim agent Wier that the hostler

lived at Marietta, Oklahoma, because he did not know.

The claim agent was at his house from 9:00 o’clock until

12:00 o’clock (Tr. 145). He did not tell the claim agent

that on the evening of the accident there was a journal

box lid lying on top of the tender (Tr. 146). On the eve-

ning he was hurt, he saw Mr. Hassell but did not talk to

him. He did not tell Mr. Lemmerman when he was in his

office on the day after the accident that he was coming

off the tender in the wrong direction (Tr. 146). He did

not tell Mr. Wier that he did net know the name of the

hostler who lived_in Marietta and he did not sign the

leave of absence form in Mr. Lemmerman’s office the day

after the accident, because several months later they

wanted him to sign one (Tr. 147).

Dr. Horace E. Turner (Tr. 75), called as a witness

for petitioner, testified that he examined petitioner on

November 14, 1947, (Tr. 77). One of the X-rays which he

had taken showed a side view of the patient’s left elbow

joint region; the lower end of the arm bone, the humerus

(Tr. 77), the radius, and also the olecranon, which is the

bone that comes from the top of the elbow joint down

to the little finger side of the hand and that region of

the elbow, the joint surfaces of the latter or ulna bone,

are not smooth and not normal. The X-ray also shows a

wire in this region of the ulna, which we call the ole-

eranon process of the ulna; that the fracture had healed

so that the fracture lines were obliterated (Tr. 78).

The doctor then testified in detail as to the insertion

and use of the wire to pull the fragments of the bone in

close apposition and hold them that way (Tr. 78, 79).

He couldn’t positively tell into how many pieces the bone

was fractured or broken, but suspected that there were

two fracture lines from his study of the X-ray, and what

he saw there could be explanatory of the restriction of

motion in the elbow (Tr. 79). There were two things:

first, the head of the radius is riding higher than is nor.

mal, indicating that the head of the radius had been

partially dislocated in the elbow joint. And the surface

portion of the ulna is roughened because the fracture

came through into that joint surface, and nature has

healed it .together, leaving some roughness of the joint

surface (Tr. 79).

The doctor then testified that according to his diag.

nosis of the condition of the left arm, there was a partial

limitation of motion in flexion of the left elbow joint

and that he had a subluxation of the radius associated

with a healed fracture of the olecranon (Tr. 80). And he

was of the opinion that the movement of his arm would

cause pain in the region of the elbow joint (Tr. 80). He

was of the opinion that the plaintiff would have a re-

duced efficiency in doing any type of laborious work that

required the use of his elbow (Tr. 81) and he was of the

opinion also that the conditions in the left arm that he

found were of a permanent nature. (Tr. 81) and in an-

swer to a hypothetical question stated that the condition

of ill being which he found had resulted from the fall

on the locomotive as described in the question (Tr. 82).

Matthew Jackson Hassell (Tr. 83) for defendant, testi-

fied that on January 10, 1946, he was employed as lead

machinist for the Gulf Company and worked from 3:30

in the afternoon until 11:30 at night (Tr. 83, 84) and he

had charge of the boiler makers, machinists, hostlers,

hostler helpers and laborers (Tr. 83). On the evening of

January 10th, the plaintiff was working under his super-

vision (Tr. 84). He saw him in the washroom when they

punched out about 11:30 and that plaintiff told him that

eM elise bit i

a aaiarenie

he had missed the step going down off the tank and

bumped his elbow (Tr. 85). On cross examination he said

that the conversation he had with the plaintiff was based

only upon his memory (Tr. 89).

On cross examination (Tr. 89) he testified that the step

petitioner fell on was not defective. It appears, however,

that the step he referred to was the bottom step. His

testimony with respect to the inspection of the locomotive

and with respect to the step (Tr. 89, 90) is as follows:

Mr. Hannigan: Q. You never saw this step did

yout A. Yes, sir. Q. When did you see it? A.

When I inspected it. Q. What steps am I referring

tot A. The bottom step on the front of the tank.

Q. And the bottom step on the front of the tank?

A. Yes, sir. Q. When did you inspect the engine?

A. In the neighborhood of sometime between seven

and eight o’clock. Q. That was before he (Lyle)

worked on it? A. He was working on it at the time

I was inspecting it. Q. Were you up on it? A. Yes,

sir.

Mr. Stuppi: If the Court please, I believe counsel

is going beyond the direct testimony.

The Court: Yes, he is going beyond the scope of

the direct.

He then testified that he gave a statement to Mr. Wier,

respondent’s general claim agent, around the 25th or

%th of January, 1946, in the Gainsville round house.

J. K. Weir (Tr. 91) for defendant testified that he

was general claim agent, had been employed by the

Gulf Company 27 years, and it was his duty to make in-

vestigations of accidents and settlement of claims growing

out of accidents, and that he investigated the accident in

which petitioner was involved on January 10, 1946 (Tr.

92). That he carried a portable typewriter and that he

spent approximately two hours with Mr. and Mrs. Lyle.

He remembered making corrections on the statement (Tr.

93).

On cross examination Wier testified that one of his

jobs was to settle claims (Tr. 95). And he told petitioner

that he was the claim adjuster and very likely told peti-

tioner that before he could adjust his claim he would

have to know something more about it (Tr. 95). At that

conference he did not discuss a settlement with him, be-

cause at that time he was not in any condition to know

how badly he was hurt (Tr. 95). But all the language

contained in the statement was his verbiage (Tr. 96), and

what the material points were was decided by him (Tr.

97) and he admitted that there were errors in the state.

ment (Tr. 99).

Dr. C. B. Thayer, by deposition (Tr. 100) testified

that he saw petitioner about 10:00 o’clock on the morning

of January 11, 1946 (Tr. 101); that petitioner told him

he had missed a step on the engine, and hit his elbow

on the side of the car and that he made a written report

to the hospital association. Petitioner’s elbow had the

appearance of injury (Tr. 101) and he sent him to the

hospital at Temple.

Dr. John R. Winston, by deposition (Tr. 105), testi-

fied that he was chief physician for the hospital asso-

ciation (Tr. 105). Petitioner’s history was taken by Dr.

Covert (Tr. 106); that petitioner had come under his ob-

servation during his stay at the hospital; at the time of

entering the hospital he had a swollen bruised discolored

left elbow and that the X-ray showed a fracture through

the olecranon process of the left ulna, with considerable

posterior displacement of the process, and that petitioner

was operated on for an open reduction of the fracture by

Dr. Maxwell Jr. on January 16 (Tr. 107). Patient re-

tarned home on January 22nd (Tr. 107), reported back

on February ist, again on February 11th, and the last

time on March 8, 1946 (Tr. 108).

Allison H. Lemmerman (Tr. 125) for defendant, testi-

fied that he was the general foreman of the mechanical

department for the Gulf Company, knew the petitioner

and identified his signature as witness on respondents’

Exhibit Number 1 (Tr. 126). On cross examination, he

said that he was merely questioning petitioner for his

own information; that in a way, Lyle told him a different

story than what was written down on Respondents’ Ex-

hibit Number 1 (Tr. 129) and said it was part of his

business to find out how it happened (Tr. 129) and that

he was familiar with the work of the hostler (Tr. 130).

Jurisdiction of This Court.

The judgment of the United States Court of Appeals

for the Seventh Circuit, to be reviewed, was entered on

the 7th day of October, 1949 (Tr. 118), and the order

denying petitioner’s Petition for Rehearing was entered

on the 3rd day of November, 1949 (Tr. 215), at which

time the judgment of the United States Court of Appeals,

Seventh Circuit, became final, and the jurisdiction of

this Court is invoked under Section 1254 (1) of title

28 of the United States code as enacted by the 80th Con-

gress, Second Session, effective on September 1, 1948.

Questions Presented.

The questions presented by petitioner’s petition herein,

for a Writ of Certiorari are:

1. Whether, in an action against defendants engaging

in the business of owning, maintaining and operating a

line and system of railroad in interstate commerce and in-

terstate transportation, as common carriers by railroad,

brought by plaintiff, employed by defendants as a hostler

helper, against defendants under the Federal Employers’

Liability Act, charging a violation of the Federal Boiler

Inspection Act, the plaintiff may recover damages from

defendants for the personal injuries sustained by him,

while engaged in the servicing of one of the locomotives

of defendants in the yards of defendants, resulting from

the failure of defendants to comply with the requirements

of the Federal Boiler Inspection Act.

2. Whether a plaintiff, employed by defendants as a

hostler helper, in an action under the Federal Employ-

ers’ Liability Act, charging a violation of Federal Boiler

Inspection Act to recover damages for personal injuries

sustained while servicing a locomotive standing over the

inspection pit near the round house in the yards of the

defendants, which locomotive, it is admitted, had just

completed an interstate run and was being made ready

for another interstate run, may recover damages for the

personal injuries sustained by him, resulting from the

failure of defendants to comply with the requirements

of the Federal Boiler Inspection Act.

3. Whether, under the Federal Boiler Inspection Act

45 U.S.C.A. Section 23, which provides:

“It shall be unlawful for any carrier to use or

permit to be used on its line, any locomotive unless

said locomotive, its boiler, tender, and all parts and

appurtenances thereof, are in proper condition and

safe to operate in the service to which the same are

put, that the same may be employed in the active

service of such carrier without unnecessary peril to

life or limb, and unless said locomotive, its boiler,

tender, and all parts and appurtenances thereof have

been inspected from time to time in accordance with

PELE Wea

nL aicae iat ark chlonn oe

2 lt ION TPS.

the provisions of Sections 28, 29, 30 and 32, and are

able to withstand such test or tests as may be pre-

scribed in the rules and regulations hereinafter pro-

vided for’’,

a locomotive, which has just completed an interstate run

and is being made ready for another such run, and which,

in the course of such preparation, has been taken over

by the hostler and petitioner, the hostler helper, in the

yards of respondents and moved by the hostler: first to

the sand chute where petitioner spent five or ten minutes

in filling the sand dome; then switched by the hostler back

and forth to a point near the water spout, where peti-

tioner spent around fifteen minutes putting water in the

tender; then moved by the hostler to the oil spout where

petitioner spent another fifteen minutes putting oil in the

fuel tank; then switched by the hostler to the inspection

pit near the round house where the hostler left and pe-

titioner spent around thirty minutes procuring oil from

a small storage house 150 feet away, checking and filling

the lubricators with oil and other duties, and then started

for the round house, but remembering returned to the

top of the tender from the rear, to put a journal box lid

hook and a waste bucket which he had overlooked in their

places, and then started to leave the tender through the

eab of the locomotive, slipped on grease on the top of

one of the iron steps, fell and was injured, is ‘‘in use’’

or being ‘‘used on its line’? so as to permit recovery

by petitioner for the injuries sustained by him through

the failure of the respondents to comply with the re-

quirements of the Federal Boiler Inspection Act.

4. Whether the hostler and hostler helper, engaged in

the yards of respondents in the servicing of a locomotive,

which had just completed an interstate run and was being

serviced with sand, water, oil and other incidentals and

being made ready for another interstate run, are ex.

cepted from the benefits congressionally provided by the

Boiler Inspection Act, 45 U.S.C.A., Section 23.

5. Whether in this action the decision of the United

States Court of Appeals for the Seventh Circuit is er.

roneous and in conflict with the applicable decisions of

this Court, in Brady v. Terminal R. R. Assn., 303 US.

10, 13; Johnson v. Southern Pacific Co., 196 U.S. 10, 21;

Minneapolis etc. Railway Co. v. Goneau, 269 US. 406,

409, 410; Chicago G. W. R. R. Co. v. Schendel, 267 US.

291 and other cases in this Court and in the United States

Courts of Appeal, in that defendants’ locomotive was

not in bad order and had not been withdrawn from serv-

ice. A comparison of these opinions of the Supreme

Court, particularly Brady v. Terminal R. R. Assn., 303

U.S. 10, 13, indicate that the United States Court of Ap-

peals for the Seventh Circuit was wholly at sea in re-

spect to any comprehensive understanding of the applica-

ble decisions of this Court as related to the issues here

involved.

Reasons Relied on for the Allowance of the Writ.

This action was brought under the Federal Employers’

Liability Act, charging a violation of the Boiler Inspec-

tion Act (45 U.S.C.A. Section 23). Jurisdiction under the

Federal Employers’ Liability Act, admitted by both de-

fendants (Tr. 7, 9), was denied, based on the Boiler In-

spection Act (Tr. 7, 9), Both defendants by admitting

paragraph II of plaintiff’s complaint (Tr. 2, 7, 10) admit

that they had been and were at times mentioned in plain-

tiff’s complaint, engaging in the business of owning,

maintaining and operating a line and system of railroad

in interstate commerce and interstate transportation, as

common carriers by railroad (Tr. 2, 7, 10). Defendant,

Gulf Company, by its answer (Tr. 8), admitted that plain-

tiff, at the time of the occurrence, was engaging in the

course and scope of his employment as a hostler helper

for the defendant in the yards of the defendant in Gaines-

ville, Texas, and was working on and about Engine Num-

ber 3939, which was then standing over the inspection pit

near the round house in the yard of the defendant, Gulf

Company; that said engine had just completed an inter-

state run and was being made ready for another run

(Tr. 8).

On the trial, it was stipulated that this locomotive Num-

ber 3939 was owned by the Atchison Company and had

been operated into this particular place in Gainesville

by employees of the Gulf Company (Tr. 170).

In the course of its preparation for another run in in-

terstate commerce this locomotive Number 3939 was

taken over by the hostler and the plaintiff, the hostler

helper, and operated (1) to the sand chute where the

plaintiff put sand in the dome; (2) to the water spout

where plaintiff put water in the tender; (3) to the oil

spout where plaintiff put oil in the fuel tank; (4) to the

inspection pit, where the hostler left and plaintiff checked

and put oil in the lubricators and attended to other du-

ties; and (5) started for the round house but remembered

that the journal box lid hook and the waste bucket were

not in their places and returned to the top of the tender

from the rear thereof, put these articles in their places

and started to leave the tender through the cab of the

locomotive, stepped on the grease on the steps and fell

and was injured.

‘‘Mr. Hannigan: * * * this case is to be submitted

by plaintiff’s instructions as to both defendants based

upon the violation of the so-called Boiler Inspection

Act. © * ° (Tr. 170)

‘‘The Court: * * * There will be no instruction on

general negligence counts. I intend to give instruc.

tions as to violation of the Boiler Inspection Act”

(Tr. 171).

No exception was taken or objection made to the in.

structions to the jury, and respondents did not include

them in the transcript of record on appeal to the United

States Court of Appeals.

There was a failure to comply with the Boiler Inspec.

tion Act, which imposed an absolute liability in favor of

the plaintiff as an employee of defendants which the jury,

under instructions to which the respondents have not

objected or excepted, found was the proximate cause of

the injury and by which respondents are bound. Davis

v. Wolf, 263 U.S. 239, 243; Myers v. Reading Co., 331

U. S. 574, 578, 579; Coray v. Southern Pacific Co., 335

U.S. 520, 522, 523.

Nevertheless, the United States Court of Appeals for

the Seventh Circuit, though the answer of the Gulf Com-

pany (Tr. 3, 7, 8), by admitting paragraph III of plain-

tiff’s complaint admits that it was at the time of the

occurrence engaging in the business of Interstate Com-

merce and interstate transportation as a common carrier

by railroad; that plaintiff was employed by it therein,

and that the duties of his employment and the perfor-

mance thereof was in the furtherance of interstate com-

merce and directly, closely and substantially affected such

commerce, by its opinion (Tr. 183) holds:

“Clearly the use of the engine in transportation

had for the time being been abandoned; its use in

commerce had come to an end. Its operator had

turned it over to the round house employees, the

hostler had taken charge and moved it to the in-

spection pit at the round house and there turned

PERRET LERL EDS thcntiy: Sa aetna EET S

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rap. ye ere

it over to the plaintiff whose duty it was to make

the service and to prepare the engine for further

use. If grease and oil or other foreign matter were

improperly on the locomotive it was his duty to

remove it if possible, and if not, to report it. It is

opposed to reality to say that under such circum-

stances the locomotive was in use so that the manda-

tory duty imposed by the Boiler Inspection Act then

applied. To service an engine while it is out of use,

to put it in readiness for use, is the antithesis of

using it. To apply the mandatory liability in favor

of one who puts an engine in readiness for use is to

enlarge and extend the intent of Congress in enact-

ing the legislation.’

Such ruling is erroneous and not in accord with the

applicable decisions of this Court, holding that this Act

favorably interpreted must be held to protect all who

need protection from dangerous results due to mainte-

nance or operation of Congressionally prohibited defec-

tive appliances. Coray v. Southern Pacific Co., 335 U.S.

520, 522; Brady v. Terminal R. Assn. 303 U.S. 10, 15,

16; Lilly v. Grand Trunk R. Co., 317 U.S. 481, 485, 486;

Davis v. Wolfe, 263 U.S. 239, 243; O’Domnell v. Elgin,

Joliet € E. R. Co., 338 US. ...., 94 L. ed. 170; and Carter

v. Atlanta d St. A. B. R. Co., 338 U.S. ...., 94 L. ed. 183.

II.

The Boiler Inspection Act fairly interpreted must be

held to protect all who need protection from dangerous

results due to the maintenance or operation of Congres-

sionally prohibited defective appliances. Coray v. South-

ern Pacific Co. 335 U.S. 520, 522; Myers v. Reading 331

U.S. 477, 482; Louisville @ N. R. Co. v. Layton 243

U.S. 617, 621.

But the United States Court of Appeals for the Seventh

Cireuit, in holding that Locomotive Number 3939 owned

by the defendant, Atchison Company, and operated by

defendant, Gulf Company, was not ‘‘in use’’ or *‘being

used on its line’ after it had completed an interestate

run and while it was being serviced for another such run,

has restricted the application of the Federal Boiler In.

spection Act so as to withdraw from the hostler helper

(and also the hostler) the protection, Congressionally

provided, afforded to them by the Federal Boiler Inspec.

tion Act when said employees are engaged in the servic.

ing of such locomotives in the yards of their employers,

Such holding is in conflict with the law and the evidence

and contravenes the applicable decisions of this Court.

ITI.

The decision of the United States Court of Appeals for

the Seventh Circuit, holding that locomotive Number

3939, owned by the Atchison Company but being used

and operated on the lines of the Gulf Company by en-

ployees of the latter company, which had just completed

an interstate run and was being made ready for another

interstate run by the hostler, who drove the locomotive

to the sand chute where the plaintiff filled the sand

dome, then to a spot near the water spout where the

plaintiff filled the water tank with water, then to a

place where the plaintiff filled the fuel tank with oil,

then to the inspection pit near the round house where

the hostler left it and the plaintiff completed the servic-

ing of it alone, procuring lubricating oil for the lubrica-

tors from the house where such supplies were kept and

waste for the journals and having finished his work,

started for the round house; then happening to think

of seeing a journal lid hook and a waste bucket on the

top of the tender that were out of place, returned, boarded

the tender from the rear, put the jeurnal lid hook and

the bucket where they belonged and, in the dark, started

down from the top ot the tender through the cab of the

—

locomotive, stepped in thick heavy grease on the iron

step, the existence of which was unknown to him and

which he had not seen, slipped and fell from the top of

the tender to deck of the locomotive and was injured,

was not ‘‘in use’’ or being ‘‘used on its line’’, is unten-

able and contravenes the applicable decisions of this

Court and the United States Courts of Appeal.

IV.

Locomotive Number 3939, owned by the Atchison Com-

pany and being used and operated on the line of the Gulf

Company by employees of the Gulf Company, had just

completed an interstate run and was being made ready

for another interstate run. No repairs had been made

on it. The work being done by petitioner in connection

with this locomotive was ‘‘that part of the work that is

done when an engine goes out on a run’”’ (Tr. 70). It was

not in the round house. It had been inspected and passed

by respondent’s lead machinist, Matthew Jackson Has-

sell (Tr. 83, 89, 90). It was not at any time withdrawn

from service. The servicing of it for another interstate

run had been completed. It was waiting and was, as a

matter of fact, at the time of the occurrence, in use in a

most real and familiar way. It was but one of some eight

or ten locomotives serviced by petitioner during a work-

ing day.

The decision of the United States Court of Appeals for

the Seventh Circuit in holding that this locomotive Num-

ber 3939, inspected, serviced and waiting to go out on an-

other interstate run, was not ‘‘in use’’ or being ‘‘used on

its line’’ is directly contradictory of the decisions of the

United States Courts of Apeals for the Second and Sixth

Circuits, in the cases of Fort St. Union Depot Co. v. Hillen,

6 Cir., 119 Fed. 2d, 307, 212, cert. denied, 314 U.S. 642,

and Erie R. Co, v. Russell, 2 Cir., 183 Fed. 722, 724, Cert,

denied 220 U.S. 607; and of the decisions of this Court in

Brady v. Terminal R. R. Assn., 303 U.S. 10, 13, 15; John-

son v. Southern Pac. Co., 196 U.S. 1, 21; Chicago G. W. R.

R. Co. v. Schendel, 267 U.S. 287, 291; Minneapolis ete,

Railway Co. v. Goneau, 269 U.S. 406, 409, 410, in all of

which cases, cars which had not been withdrawn from

use were held to be in use.

The Boiler Inspection Act was passed to promote the

safety of employees and is to be read and applied with

the Federal Employers’ Liability Act. Baltimore & Ohio

v. Groeger, 266 U.S. 521, 69 L. ed. 419, 424. The liability

of a railroad under the Safety Appliance Act for in-

juries inflicted as a result of the act’s violation follows

from the unlawful use of the prohibited equipment ‘‘not

from the position the employee may be in or the work

which he may be doing at the moment when he was in-

jured.’”’ Brady v. Terminal R.R. Assn., 303 U.S. 10, 16;

Louisville N. R. R. Co. v. Layton, 243 U.S. 617, 621; Coray

v. Southern Pac. Co., 335 U.S. 520, 523.

To hold as the United States Court of Appeals for

the Seventh Circuit has held in this case viz: that a

locomotive which had just completed an interstate run

and was being made ready for another interstate run

and was standing over the inspection pit near the round

house in the yards of the carrier after the work of serv-

icing it and the duties imposed on the employee with

respect to that work had been completed and the em-

ployee on leaving the top of the tender through the loco-

motive cab is caused to slip and fall and is injured as a

result of a violation of the Boiler Inspection Act, is not

‘“‘in use’’ or being ‘‘used on its line” is to withdraw

from such employee, viz.: the hostler helper, and also the

hostler, the benefits of the Boiler Inspection Act enacted

for their safety, and intended to embrace all locomotives,

ears and similar vehicles used on a railroad which is a

highway of interstate commerce, contrary to the provi-

sions of the act, and decisions of the United States Courts

of Appeal and of this Court.

VI.

The United States Court of Appeal for the Seventh

Cireuit, by its decision and judgment in this cause, de-

nied to petitioner in an action brought under the Federal

Employers’ Liability Act, charging a violation of the

Federal Boiler Inspection Act, a right specifically set

up and claimed by him under the Federal Boiler Inspec-

tion Act. This was not a case where a defective car had

reached a place of repair as in New York C. St. Ry.

Co. v. Kelly, 7 Cir., 70 Fed. 2d 548 or had been with-

drawn from service. Locomotive Number 3939 involved

here had not been withdrawn from use. The Act is

intended to embrace all locomotives. The character of

the use of this locomotive was not changed during the

servicing operation in the yards of the carrier. Congress

made no exception of the hostler helper or hostler em-

ployed in the servicing of a locomotive in the yards of a

carrier. It is respectfully submitted that denial to the pe-

titioner of the benefit of the verdict of the jury and

the judgment thereon in this case plainly calls for the

issuance by this Court of its Writ of Certiorari herein.

Prayer of Petitioner.

Wherefore, petitioner prays that a W1c oi Certiorari

be issued by this Court, directed to the United States

Court of Appeals for the Seventh Circuit, to the end

that the decision and judgment of the United States

Court of Appeals for the Seventh Circuit in this cause,

entitled ‘‘Jack F, Lyle, Plaintiff-Appellee, v. The Atch-

ison, Topeka and Santa Fe Railway Co. a corporation

and Gulf Colorado and Santa Fe Railway Co. a corpora.

tion, defendants-appellants, Number 9801,’’ be reviewed

by this Court as provided by law, and that upon such

review said decision and judgment be reversed and the

petitioner have such other relief as to this Court may

seem appropriate.

Dated January 26, 1950.

Jack F. Lyle, Petitioner.

Grorce F. Barrett,

39 S. LaSalle Street,

Chicago 3, Illinois,

Attorney for Petitioner.

Marron J. Hannican,

Jutius S. Neate and

Watter E. Moss,

77 W. Washington Street,

Chicago 2, Illinois,

Of Counsel.

jnduee ihe hsvinbcakcantine BpGte ee EE

satay

ES IER NREE. DE DELLE EAE LIGIER RS I eg

a oa AE shiahaniee Soe re ee ee

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroszr Tzrm, 1949.

No.

JACK F. LYLE,

Petitioner,

vs.

THE ATCHISON, “SPEKA AND SANTA FE RAILWAY

COMPANY, a «oration, and GULF, COLORADO AND

SANTA FE Bi.iL.WAY COMPANY, a corporation,

Respondents.

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

Opinion of the Court Below.

The opinion of the United States Court of Appeals for

the Seventh Circuit in said Cause Number 9801, en-

titled Jack F. Lyle, Plaintiff-Appellee, vs. The Atchison,

Topeka and Santa Fe Railway Company, a corporation,

and Gulf Colorado and Santa Fe Railway Company, a

corporation, Defendants-Appellants, which petitioner seeks

to have reviewed, is reported in 177 Fed. (2d) 221 and

appears on pages 181, to 185 inclusive of the record filed

herewith.

Statement of the Case.

The essential facts of the case are believed to be fully

stated in petitioner’s petition for Writ of Certiorari and

in the interest of brevity are not repeated here. Refer.

ence will be made to such facts on the points involved

in the course of the argument which follows. Reference

to certain facts not contained in the summary may be

referred to in the argument for the purpose of aiding the

court in visualizing the manifest and grievous errors of

the United States Court of Appeals for the Seventh

Circuit.

Specification of Errors to Be Urged.

The Circuit Court of Appeals for the Seventh Circuit

in its opinion in said cause erred:

1. In reversing the judgment obtained by petitioner

in the trial court entered on the verdict of the jury (Tr.

160) finding the respondents guilty and assessing the

petitioner’s damages in the sum of $15,000.00.

2. In finding that petitioner failed to make out a prima

facie case in the Trial Court and that the Trial Court

should have directed a verdict for the respondents and

in reversing the judgment obtained by petitioner in the

trial court with direction to the District Court to proceed

in accordance with the announcements contained in the

opinion of the Court.

3. In holding and deciding that locomotive Number

3939 involved in this case, owned by the defendant, Atchi-

son Company, but being used by the Gulf Company,

was not ‘‘in use’’ or being ‘‘used on its line’’ at the

time of the accident and injury to the petitioner so as

ee ee tee

ite ed aoe tate tear re een

G1 RE SD ps ane Ta gang aire

to bring it within the purview of the Federal Boiler

Inspection Act.

4. In holding and deciding that the use of said loco-

motive Number 3939, involved in this suit, in commerce

had come to an end, and that its use in transportation

had for the time being been abandoned, so that the man-

datory duty of the carrier imposed by the express pro-

vision of the Boiler Inspection Act did not exist at the

time of the accident and injury to the plaintiff com-

plained of in the complaint filed in this cause.

5. In holding and deciding with respect to locomotive

Number 3939 involved in this case, and the accident and

injury to the petitioner that ‘‘it is opposed to realty to

say that under such circumstances the locomotive was in

use so that the mandatory duty imposed by the Federal

Boiler Inspection Act then applied.’’

6. In holding and deciding, in effect, that the Federal

Boiler Inspection Act does not apply with respect to in-

juries sustained by employees in the course of their em-

ployment in the yards of a common carrier by railroad

engaged in interstate commerce and interstate transpor-

tation, when such employees of such interstate carrier

are engaged in the yards of such interstate carrier, in

the servicing of a locomotive which has just completed

an interstate run and is being checked, oiled where oil

is needed, and supplied with sand, water, fuel, waste for

the journals and other incidentals so as to make it ready

for another interstate run.

7. In holding and deciding that the Federal Bolier

Inspection Act does not apply to the hostler helper in

the yards of a common carrier by railroad engaged in

interestate commerce and interstate transportation, with

respect to a locomotive of such interstate carrier stand.

ing over the inspection pit in the yards of such carrier,

_ which has just completed an interstate run and is being

made ready for another interstate run and the hostler

helper in the course of his employment, goes to the top

of the tender of such locomotive to remove a journal lid

hook and a pail of journal waste and in leaving the top

of such tender through the cab of such locomotive is

caused to fall on oil and grease and foreign substance

on steps of such tender and is injured.

8. In holding and deciding that the Federal Boiler

Inspection Act does not apply with respect to the per-

sonal injuries incurred by a hostler helper employed

in the yards of a common carrier by railroad engaged in

interstate commerce and interstate transportation when

such hostler helper is engaged in the servicing of a lo-

comotive standing over the inspection pit in the yard

of such carrier, which has just completed an interstate

run and is being made ready for another interstate run

and such employee is injured in the course of his work

in servicing said locomotive so standing over the in-

spection pit in the yards of such common carrier by rail-

road.

Summary of Argument.

Summary of argument in this brief follows the subject

index preceding Petition for Writ of Certiorari.

Bg ge te ee ee

NORA RR ALN POEL eT La Yee

PROPOSITIONS OF LAW.

—_

Respondents admit that they are a highway of inter-

state commerce. The applicability of the Boiler Inspection

Act is not affected by the fact that the accident and in-

jury to petitioner occurred in the yards of respondents.

Brady v. Terminal R.R. Assn., 303 U.S. 10, 15

Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33

Tipton v. A. T. € 8. F. Ry., 298 US. 141

Johnson v. Southern Pac. Co., 196 U.S. 1, 21.

Erie R. Co. v. Russell, 2 Cir., 183 Fed. 722, 725,

Cert. den., 220 U.S. 607

Wabash R. Co. v. United States, 7 Cir. 168 Fed.

1, 3

Lilly v. Grand Trunk R. Co., 317 U.S. 481, 485

Lowusville € N. R. Co. v. Botts, 8 Cir. 173 Fed.

(2d) 164, 166, 167

No. Carolina R. R. Co. v. Zachary, 232 U.S. 248,

260

San Antonio Ry. Co. v. Wagner, 241 U.S. 476,

483

Moore v. C. € O. Ry. Co., 291 U.S. 205, 214

Erie Railroad Co. v. Szary, 253 U.S. 86, 89, 90

Erie Railroad Co. v. Collins, 253 U.S. 77, 84, 85

O’Donnell vy. Elgin, Joliet € E. R. Co., 388 U.S.

--» 94 L. ed. 170, 172.

Carter v. Atlanta & St. A. B. R. Co., 338 US. ....,

94 L. ed. 183, 186, 187

The Boiler Inspection Act is to be liberally construed in

the light of its prime purpose, the protection of the em.

ployees and others by requiring the use of safe equipment,

Tilly v. Grand Trunk R. Co., 317 U. S. 481, 485

Johnson vy. Southern Pac. Co., 196 U.S. 1, 17-19

Myers v. Reading Co., 331 U.S. 477, 482, 483

Brady v. Terminal R.R. Assn., 303 U.S. 10, 15

Swinson v. Chicago St. P. M. € O. Ry. Co., 294

U.S. 529, 531

Davis v. Wolfe, 263 U.S. 239, 243

Louisville & Nashville R. R. Co. v. Layton, 243

U.S. 617 621

Lowusville @ N. R. Co. v. Botts, 8 Cir. 173 Fed.

(2d) 164

IT.

Locomotive number 3939, involved here, had not been

withdrawn from use. At the time of the accident and in-

jury to plaintiff it was ‘‘in use’’ and ‘‘in service’’ and

the Boiler Inspection Act is applicable.

Brady vy. Terminal R.R. Assn., 303 U.S. 10, 13

Erie R. Co. v. Russell, 2 Cir. 183 Fed. 722, 724

Cert. den. 220 U.S. 607

Johnson v. Southern Pacific Co., 196 U.S. 1, 21, 22

Delk v. St. Louis & San Francisco R. Co., 22

U.S. 584, 586

Chicago G. W. R. Co. v. Schendel, 267 U.S. 287;

69 L. ed. 614

Minneapolis, etc., Ry. Co. v. Goneau, 269 US.

406, 410, 70 L. ed. 335, 339

Fort Street Union Depot Co. v. Hillen, 6 Cir.

119 Fed. (2d) 207, 212, Cert. den. 314 U.S. 642

Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33

North Carolina R.R. Co. v. Zachary, 232 U.S.

248

Great Nor. Ry. Co. v. Otos, 239 U.S. 349, 351

IV.

The Boiler Inspection Act, fairly interpreted, must be

held to protect all who need protection from dangerous

results due to maintenance or operation of Congression-

ally prohibited defective appliances.

Coray v. Southern Pac. Co., 335 U.S. 520, 522

Brady v. Terminal R. R. Assn., 303 U.S. 10, 15, 16

Louisville & N. R. Co. v. Layton 243 U.S. 617,

621

Swinson v. Chicago, St. P. M. € O. Ry. Co., 294

U.S. 529, 531

Davis v. Wolfe, 263, U.S. 239, 243

Johnson v. Southern Pac. Co., 196, U.S. 1, 17-19

Tilly v. Grand Trunk R. Co., 317 U.S. 481, 485,

486

Myers v. Reading, 331 U.S. 477, 482

Urie v. Thompson, 337 U.S. 163, 194, 195

O’Donnell v. Elgin, Joliet d E. R. Co., 338 U.S.

oe , 94 L. ed. 170, 172

Carter v. Atlanta d St. A. B. R. Co., 338 U.S. ....,

94 L. ed. 183, 186, 187, 188

Respondents admit that they are a highway of inter.

state commerce. The applicability of the Boiler Inspec.

tion Act is not affected by the fact that the accident and

injury to petitioner occurred in the yards of respondents,

Petitioner, Jack F. Lyle, as plaintiff, brought an action

at law in the District Court of the United States for

the Northern District of Illinois, Eastern Division, under

the Federal Employers’ Liability Act (Title 45 U.S.A

See. 51 et Seq.) charging a violation of the Boiler In.

spection Act (Title 45 U.S.C.A. Sec. 23) against re

spondents, The Atchison, Topeka and Santa Fe Railway

Company, a corporation, and Gulf Colorado and Santa

Fe Railway Company, a corporation, hereinafter referred

to as Atchison Company and Gulf Company, to recover

damages for injuries sustained by him on January 10th,

1946, in the yard of respondent, Gulf Company, where the

was employed as a hostler helper,

Petitioner entered the employ of respondent Gulf Com-

pany on November 1, 1945. It was his duty as a hostler

helper, while the hostler drove, to put sand in the dome

of the engine, to put in oil and water, to fill the lubri-

cators, keep waste and a lot of things like that on the

engine (Tr. 19, 48). From the time he went to work on

November 1, 1945, to the time of his injury, on January

10, 1946, he worked from 3:30 in the afternoon, until

11:30 o’clock at night, seven days a week (Tr. 19) and

during a working day, he worked on as many as eight

or ten engines (Tr. 20).

Respondents admitted Paragraph II of petitioner’s

complaint (Tr. 7, 10) which alleged (Tr. 2).

“That the defendants and each of them are duly

organized and existing as railroad corporations, and

that at all the times herein mentioned have been

and now are engaged in the business of maintaining

and operating a line and system of railroad in inter-

state commerce and interstate transportation as com-

mon e¢arriers by railroad.’’

The Gulf Company, by its answer to paragraph III of

petitioner’s complaint, (Tr. 7) admitted the employment

of petitioner and that it was then engaging in the busi-

ness of interstate commerce and interstate transportation

as a common carrier by railroad and that the duties of

the employment of petitioner and the performance there-

of, either in whole or in part, was in the furtherance of

interstate commerce, and directly, closely and substan-

tially affected such commerce. The Atchison Company, by

its Answer to Paragraph III admitted it was then en-

gaged in the business of interstate commerce and trans-

portation as a common carrier by railroad, but was with-

out information sufficient to form a belief that the duties

of petitioner’s employment and the performance thereof

in whole or in part were in the furtherance of inter-

state commerce and directly, closely and substantially

affected such commerce (Tr. 10). On the trial it was stip-

ulated (Tr. 144, 170) that locomotive Number 3939 in-

volved here was owned by the respondent, Atchison Com-

pany and had been operated into this particular place in

Gainsville by employees of the respondent, Gulf Company.

By its answer to Paragraph V, of petitioner’s com-

Plaint, the respondent, Gulf Company, admitted that loco-

motive Number 3939 of the Atchison Company which

at the time of the occurrence was standing over the

inspection pit in the yard of said respondent, had just

completed an interstate run and was being made ready

for another interstate run (Tr. 8, 14). The respondent,

Atchison Company, denied this paragraph of petitioner’s

complaint (Tr. 10).

By the Boiler Inspection Act (45 U.S.C.A. Section 23)

it is provided:

“It shall be unlawful for any carrier to use or

permit to be used on its line any locomotive unless

said locomotive, its boiler, tender and all parts and

appurtenances thereof are in proper condition and

safe to operate in the service to which the same

are put, that the same may be employed in active

service by such carrier without unnecessary peril to

life or limb ° * °,”

In' Brady v. Terminal R.R. Assn., 303 U.S. 10, Brady,

a car inspector, injured while inspecting a string of cars

at Granite City, Illinois, sued the Wabash under the pro-

visions of the Safety Appliance Act which provided:

“Tt shall be unlawful for any common carrier

subject to the provisions of this Act, to have or

permit to be hauled or used on its line, any car sub-

ject to the provisions of this Act not equipped with

appliances provided in the Act * * *,”

The Court, page 15, said:

““The breadth of the statutory requirements is

shown by the fact that it embraces all locomotives,

cars and similar vehicles used on any railway that

is a highway for interstate commerce, and is not con-

fined exclusively to vehicles engaged in such com-

merce. ’’

It is beyond dispute that the Safety Appliance Acts,

which would include the Boiler Inspection Act, apply to

cars and to locomotives in use on a highway of interstate

commerce regardless of the type of commerce and ir-

BRED OTTER STUER BD es oC i Ip 1

ERMA Oe 1S deans

SF IRE S APOEIT H e

respective of the use made of any particular car or of

any locomotive at any particular time. Texas & Pacific

Ry. Co. v. Rigsby, 241 U.S. 33, 41; Moore v. C. & O. Rail-

way Co., 291 ©.S. 205, 214; Tipton v. A. T. € 8. F. Ry.

Co., 298 U.S. 141; Wabash R. Co. v. United States, 7 Cir.

168 Fed. 1, 3; Erie Railroad Co. v. Szary, 253 U.S. 86, 89,

90; Erie Railroad v. Collins, 253 U.S. 77, 84, 85; San An-

tonio Ry. Co. v. Wagner, 241 U.S. 476, 483.

See also Johnson v. Southern Pacific Co., 196 U.S. 1,

where plaintiff was injured as a result of failure of de-

fendant to equip its cars engaged in interstate commerce

with automatic couplers, where the Court on the question

of whether or not the car in question was engaged in

interstate commerce, at page 22 said:

**Confessedly, this dining car was under the con-

trol of Congress while in the act of making its inter-

state journey, and in our judgment was equally so

when waiting for the train to be made up for the

next trip. It was being regularly used in the move-

ment of interstate traffic and so within the law.’’

And note the language in Erie Co. v. Russell, 183 Fed.

722, (Cert. den. 220 U.S. 607) where the Court held that

the fact that the accident occurred during switching oper-

ations and not during its regular western or eastern

movement of the freight train does not affect the opera-

tion of the statute, and, at page 725, said:

“‘Certainly if the car came into Port Jervis in the

afternoon in an interstate run, and moved out of Port

Jervis the next morning on another interstate run,

the character of its use was not changed during the

switching operations at night.’’

A recent case holding that the Boiler Inspection Act

applies to a locomotive in the railroad yards as well as to

one out on the main line is Lowisville & N. R. Co. v. Botts,

8 Cir. 173 Fed. (2d) 164 where the plaintiff Botts lost a

leg when he slipped off a footboard of a moving switch

engine in defendant’s Radnor yards outside of Nash.

ville, Tenn. See also O’Donnell v. Elgin, Joliet & E. R

Co., 338 U.S. ....., 94 L. ed. 170, 172, aud Carter v. Atlanta

@ St. A. B. R. Co., 338 U.S......., 94 L. ed. 183, 186, both

involving violations of the Federal Employers’ Liability

Act and Safety Appliance Acts in switching operations

in yards of defendants, the violation of the Appliance

Act supplying the wrongful act necessary to ground lia-

bility under the Federal Employers’ Liability Act.

Apposite also as to the facts in this case, and to the

applicability of the Boiler Inspection Act at the time of

the accident and injury to petitioner is Lilly v. Grand

Trunk R. Co., 317 U.S. 481, where the plaintiff, a brake.

man, brought an action in an Illinois State Court under

the Federal Employers’ Liability Act and the Boiler

Inspection Act for injuries scstained on February 6th,

1937, in the course of his employment as a brakeman in

interstate commerce. There the plaintiff fell from the

top of a locomotive tender while pulling a water spout,

which was at the side of the track over the tender’s man-

hole by means of a rod and hook, preparatory to filling

the tender’s tank with water. There the Court at page

486 said:

“The use of a tender, upon whose top an employee

must go in the course of his duties, which is covered

with ice seems to us to involve ‘unnecessary peril to

life or limb’—enough so as to permit a jury to find

that the Boiler Inspection Act has been violated.

Fortunately, we are not left wholly to our own re-

sources in construing the Act in the light of its

humanitarian purpose. The Interstate Commerce

Commission has set the standard here by promulgat-

ing a rule (No. 153) that the “Top of tender behind

fuel space shall be kept clean, and means provided

to carry off waste water. From the phrasing of

Rule 153 we think it aimed at requiring the top of

the tender to be kept free of foreign matter which

would render footing insecure, for example, coal,

dust, debris, grease, waste, water, and ice. While

the locomotive inspection rules are generally de-

voted to details of construction and specification

of materials, at least one other rule deals with the

condition of surfaces upon which employees must

stand. In using the word ‘‘clean,’’ the Commission

must have meant something more tham mere manner

of construction or mechanical operation, because

‘“‘elean’’ does not naturally lend itself to such a lim-

ited connotation. That something more is the con-

tinuing duty of promoting the safety of employees by

removing from the top of the tender all extraneous

substances which might make standing there hazard-

ous.’

“‘From various cases denying recovery under the

Act, respondent attempts to extract a general rule

that the Act covers only defects in construction or

mechanical operation and affords no protection

against the presence of dangerous objects or foreign

matter. But there is no warrant in the language of

the Act for construing it so narrowly, or for denying

the Commission power to remedy shortcomings, other

than purely mechancial defects, which may make

operation unsafe. The Act without limitation speaks

of equipment ‘in proper condition and safe to oper-

ate * * * without unnecessary peril to life or limb.’

Conditions other than mechanical imperfections can

plainly render equipment unsafe to operate without

unnecessary peril to life or limb. Whatever else may

be said about the cases relied upon by respondent,

they are sufficiently distinguishable in that they either

did not involve or did not consider Rule 153 or any

comparable regulation.’’

The Court there found that the jury had a right to

find a violation of the Boiler Inspection Act by reason

of the presence of ice on the top of the tender.

In this case, the jury was instructed only on the Boiler

Inspection Act (Tr. 171). There were no instructions on

general negligence (Tr. 171). Respondents took no ex.

ception to the charge to the jury and the jury found

a violation of the Act by reason of the grease on the

top step at the front end of the tender of which peti.

tioner had no knowledge and by reason of which he fell

to the floor of the engine cab and was injured. Locomo.

tive No. 3939 was in use upon a railroad which was a

highway of interstate commerce. This locomotive had

just completed an interstate run and was being made

ready for another interstate run. Negligence is not the

basis of liability under the Act. Instead the Act im.

posed upon the carrier an absolute and continuing duty

to maintain the locomotive and all its parts and appur-

tenances thereof in proper condition and safe to operate.

* * * without unnecessary peril to life or limb. Brady

v. Terminal R. Assn., 303 U.S. 10; Lilly v. Grand Trunk

R. Co., 317 U.S. 481, 486. See also Carter v. Atlanta é

St. A. B. R. Co., 338 US. ......, 94 L. ed. 183, 187, and

O’Donnell v. Elgin, Joliet € E. R. Co., 338 U. S. ......, 94

L. ed. 170 172.

Il.

The Boiler Inspection Act is to be liberally construed

in the light of its prime purpose, the protection of the

employees and others by requiring the use of safe equip.

ment.

In this case, after the locomotive had been moved

to the inspection pit and petitioner had completed his

work he recalled seeing a bucket for journal waste and

a journal box lid hook carried on top of the tender that

were out of place (Tr. 27). He returned, boarding the

tender at the rear (Tr. 52), and after he had put the

waste bucket and the journal box lid hook where they

belonged (Tr. 28) he started down from the tender

through the cab of the locomotive (Tr. 24, 28). There

were no lights and it was dark and still misting (Tr.

28). He stepped with his right foot on the top step near-

est him, and his foot slipped off (Tr. 31). And he fell

to the floor of the cab landing on his left elbow and

was injured.

The Boiler Inspection Act (45 U.S.C.A. Sec. 23) makes

it unlawful for any carrier to use or permit to be used

on its line any locomotive unless said locomotive, its

boiler, tender and all parts and appurtenances thereof,

are in proper condition and safe to operate in the serv-

ice to which they are put, that the same may be em-

ployed in the active service of such carrier without un-

necessary peril to life or limb.

The language of the Safety Appliance Acts and the

Boiler Inspection Act make it clear that the liability

in damages to employees for failure to comply with the

law springs from its being made unlawful to use a loco-

motive unless its boiler, tender and all parts and ap-

purtenances thereof are safe to operate in the service

to which the same are put, that the same may be em-

ployed in the active service of the carrier without un-

necessary peril to life or limb. This effect can be given

to the acts and their wise and humane purpose can be

accomplished only by holding that carriers are liable to

employees in damages whenever the failure to obey these

safety appliance laws is the proximate cause of the in-

jury to them when engaged in the discharge of duty. It

is conceded that petitioner, Lyle, up to the time that

he stepped on this step covered with grease and fell

and was injured was engaged in the discharge of his

duties as a hostler helper. The jury found that the pe-

titioner’s case came within the interpretation of the stat.

ute and the judgment entered on the verdict of the jury

should be affirmed. Louisville d Nashville R. Co. v. Lay.

ton, 243 U.S. 617, 621.

The statute has been liberally construed ‘‘so as to give

a right of recovery for every injury the proximate cause

of which was a failure to comply with the requirement

of the Act.”? Swinson v. Chicago St. P. M. & O. Ry.

Co., 294 U.S. 529, 531; Brady v. Terminal R. R. Assn.,

303 U.S. 10, 15.

The Boiler Inspection Act insofar as it aims to pro-

tect the lives and limbs of men is remedial in its character

and should be so construed as to prevent the mischief

and advance the remedy. See Johnson v. Southern Pac.

Co., 196 U.S. 1, 17, 18.

The Boiler Inspection Act, like the Safety Appliance

Act, is to be liberally construed in the light of its

prime purpose, the protection of employees and others

by requiring the use of safe equipment. Tilly v. Grand

Trunk R. Co., 317 U. S. 481, 485. See also Myers ».

Reading Co., 331 U.S. 477; Davis v. Wolfe, 263 U. S. 239,

243.

Il.

Locomotive Number 3939, involved here, had not been

withdrawn from service. At the time of the accident and

injury to petitioner it was ‘‘in use’’ and ‘‘in service’’ and

the Boiler Inspection Act is applicable.

To this proposition the Court of Appeals for the Sev-

enth Circuit (Tr. 183, 184) has erroneously given a

negative answer that is far reaching. It withdraws from

the hostler, as well as the hostler helper, while engaged

in servicing locomotives in the yards of a carrier, the

benefit of the Safety Appliance Acts, including the Boiler

Inspection Act, which this Court and other United States

Courts of Appeal, as we have pointed out, have repeat-

edly held, applied to brakemen, inspectors and others in-

jured in the yards of a carrier engaging in interstate

commerce.

Petitioner on the shift from 3:30 to 11:30 P. M., was

the hostler helper in the yards of respondent, Gulf Com-

pany, at Gainesville, Texas, where locomotives, engaging

in interstate commerce, were taken as they returned from

interstate runs to be serviced and go out again on other

interstate runs. Petitioner reported for work at 3:30

P.M. on January 10, 1946, and worked until 11:30 and

during the course of a day’s work, he would service eight

or ten locomotives (Tr. 20). During the several stages

of a servicing operation as the locomotive advanced from

post to post, the hostler drove and the hostler helper per-

formed the several tasks that were allotted to him. The

locomotive was switched first to the sand chute, then to the

water spout, then on to the oil spout and finally to the

inspection pit where the hostler left and the hostler

helper finished whatever else was to be done about a

locomotive before it went out on a run.

Locomotive Number 3939 came into the yard around

8 o’clock and the hostler and petitioner took over (Tr.

Zi). With the hostler in the cab, petitioner crawled up

over the front of the locomotive to the cat walk and the

hostler drove the locomotive to the sand chute where peti-

tioner spent five or ten minutes filling the sand dome

(Tr. 22); petitioner then threw the switches and the

hostler drove the locomotive to the service track (Tr.

24); then on to the water spout where petitioner, up on

top of the tender, put in the water; that took another

fifteen minutes. The hostler then drove the locomotive,

this time only 25 feet, to the oil spout where with the

hostler in the cab the petitioner on the tender, petitioner

spent around fifteen minutes putting in oil (Tr. 25).

Again there were switching operations back and forth,

petitioner throwing the switches and the hostler driving

until the hostler pulled the locomotive up to the pit

where it was partially inspected—the bottom step, but

not the top step, on the front end of the tender where

petitioner fell, by petitioner’s forearm, Matthew Jackson

Hassell, between 7 and 8 o’clock (Tr. 90), not overlooking

that it was not until around 8:00 when this locomotive

came in (Tr. 20) and that the inspector’s work should

come after the others have finished.

After the hostler left and while the locomotive re-

mained over the inspection pit, petitioner got oil for

the lubricators and waste for the engine from a little

house 150 feet away (Tr. 26, 27), checked the lubricators,

started for the round house, but then remembered the

journal box lid hook and the waste bucket that were not

in their places and returned, climbing on the tender from

the rear, he took care of the waste bucket and the journal

box lid hook and started off the tender through the cab,

where he had not been before on that night, stepped in

the grease on the top step, fell and was injured. Peti-

tioner serviced eight or ten locomotives during each

working day—not locomotives in the round house but

locomotives ‘‘in use’? as they returned from interstate

runs. He was not a repair man and he did not make

repairs. Each and every locomotive with which petitioner

as hostler helper had anything to do was ‘‘in use”

and in frequent motion until it arrived over the in-

spection pit where petitioner finished his work before the

locomotive started on another run. The fire in the fire

box of the locomotive was burning at the time of the

occurrence (Tr. 31, 70). The dials were lit up (Tr. 31)

and the servicing which petitioner did was the work which

was done before an engine goes out on a run (Tr. 70).

On that locomotive number 3939 nothing more remained

to be done but petitioner, after his injury, and before

he left for home, did service a few more locomotives

(Tr. 34).

To arrive at its conclusion that this locomotive Num-

ber 3939 was not ‘‘in use’’ or ‘‘in service,’’ the Court

of Appeals for the Seventh Circuit relies upon New York

C. é St. L. Ry. Co., v. Kelly, 7 Cir. 70 Fed. (2d) 548,

551, Cert. den. 293 U.S. 595, but neither that case nor

any or either of the other cases cited by the Court of

Appeals, in light of Brady v. Terminal R.R. Assn., 303

U.S. 10, is apposite here. In the Kelly case the car in-

volved was a defective car and was so marked. It had

been undergoing repairs on a repair track for three days

and the Court in its opinion said:

“‘After a defective car reaches the place of re-

pair, the Safety Appliance Act is unapplicable, be-

cause such car has been withdrawn from service and

is not in use under the provisions of the Act.’’

The answer to the Kelly case and the case which dis-

tinguishes it and is controlling here is Brady v. Terminal

R. R. Assn., 303 U.S. 10. In the Brady case the plaintiff

there, like the petitioner here, was employed in the rail-

road yards. He was a car inspector, and was employed

by the Wabash Railroad in its yard at Granite City,

Illinois, and was injured while inspecting a car which

was one of a string of cars brought by the defendant

from St. Louis to Granite City and placed upon the

track of the Wabash known as ‘‘receiving”’ or ‘‘inbound’’

track. The purpose of the inspection was to determine

whether the cars were to be accepted by the Wabash and

the first question was whether or not a car can be said

to have been ‘‘in use’’ by the defendant at the time in

question. The ‘‘use movement or hauling of defective

car’’ within the meaning of the statute, had not ended

when the plaintiff sustained his injuries. The car had

been brought into the yard at Granite City and placed

upon a receiving track temporarily, pending the contin.

ance of transportation. If not found defective, it would

proceed to its destination. If found defective it would be

subject to removal for repairs. It was not a case where

a defective car had reached the place of repair. The de.

fective car there had not been withdrawn from use. Loco-

motive Number 3939 involved in this case, was not in bad

order and had not been withdrawn from use or service,

Between seven and eight o’clock that night it had been

inspected by the respondent Gulf Company’s lead ma-

chinist, Matthew Jackson Hassell (Tr. 83, 89, 90) who

had charge of the hostler and hostler helper. It was not

in need of repairs. There was fire burning in the fire

box and the work performed was the work done before an

engine goes out on a run (Tr. 70). The dials in the loco-

motive cab were on and illuminated (Tr. 31, 53).

In Brady v. Terminal R. R. Assn. with respect to the

ear inspector the Court distinguished New York C. é

St. L. R. R. Co. v. Kelly, 70 Fed. (2d) 548, 551 and B. é

O. R. Co. v. Hooven, 297 Fed. 919, 921, 923, both relied

upon by the Court of Appeals for the Seventh Circuit,

and, specifically holding that these cases were not appo-

site with respect to the car inspector and the work being

done by him, at page 13 of the opinion, said:

“The first question is whether the car can be said

to have been in use by the respondent at the time

in question. The statute gives no ground for hold-

ing that it was the intent of Congress that in a sitn-

hia ol tL sane mene meat ee CELE RH HS oa

ST dine ato

ation such as is here presented neither the Wabash

nor the Terminal Association should be subject to

the statutory duty. The ‘use, movement or hauling

of the defective car,’ within the meaning of the stat-

ute, had not ended when petitioner sustained his in-

juries. Chicago, Great Western R. Co. v. Schendel,

267 U.S. 287, 297, 292. The car had been brought

into the yard at Granite City and placed on a re-

ceiving track temporarily pending the continuance of

transportation. If not found to be defective, it would

proceed to destination; if found defective, it would

be subject to removal for repairs.

‘It is not a case where a defective car has reached

a place of repair. See Baltimore & Ohio R. Co. v.

Hooven, 297 Fed. 919, 921, 923; New York C. & St. L.

R. Co. v. Kelly, 70 F. (2d) 548, 551. The ear in this

instance had not been withdrawn from use. John-

son v. Southern Pacific Co., 196 U. S. 1, 21, 22;

Delk v. St. Lowis & San Francisco R. Co., 220 U.S.

580, 584-586; Great Northern Railway Co. v. Otos,

239 U.S. 349, 351; Chicago Great Western R. Co.

v. Schendel, supra. The Minneapolis etc. Ry. Co. v.

Goneau, 269 U.S. 406. In view of that use, either the

Terminal Association or the Wabash was subject to

the obligation imposed by the statute.’

In Johnson v. Southern Pac. Co., 196 U. S., 1 Johnson

was acting as head brakeman on a freight train, of the

Southern Pacific Company which was making its regular

trip between San Francisco, California, and Ogden, Utah.

Upon reaching the town of Promontory, Utah, Johnson

was directed to uncouple the engine from the train and

couple it to a dining car belonging to the company which

was standing on a side track, for the purpose of turning

the car around preparatory to its being picked up and

put on the next west-bound passenger train. The engine

and dining car were not equipped with automatic couplers

and it was necessary for Johnson and he was ordered to

go between the engine and the dining car to accomplish

the coupling. In doing so, Johnson’s hand was caught

between the engine bumper and the dining car bumper

and crushed, which necessitated amputation of the hand

above the wrist. On the trial the Court instructed the

jury to find for the defendant and the Circuit Court of

Appeals for the Eighth Circuit affirmed.

The locomotive was not equipped with automatic coup-

lers and did not comply with the Safety Appliance Act.

The Circuit Court of Appeals had held that the dining

car was empty and had not been actually entered upon

its trip. It was not used in moving interstate traffic and

hence it was not within the Act.

But our Supreme Court, page 21, said:

“‘The dining car had been used for several years

to furnish meals to passengers between San Fran-

cisco and Odgen and for no other purpose. On the

day of the accident the eastbound train was so late

that it was found that the car could not reach Ogden

in time to return on the next westbound train, accord-

ing to intention, and it was therefore dropped off

at Promontory to be picked up by that train as it

came along that evening.’’

“‘The presumption is that it was stocked for the

return, and as it was not a new car, or a car just

from the repair shop, on its way to its field of labor,

it was not ‘an empty’ as that term is sometimes used.

Besides, whether cars are empty or loaded, the dan-

ger to employees is practically the same, and we

agree with the observation of District Judge Shiras

in Voelker v. Railway Company, 116 Fed. Rep. 867,

that ‘‘it cannot be true that on the eastern trip the

provisions of the act of Congress would be binding

upon the company because the cars were loaded but

would not be binding upon the return trip, because

the cars are empty.’ ”’

“Counsel urges that the character of the dining

car at the time and place of injury was local only

and could not be changed until the car was actually

engaged in interstate movement or being put into

a train for such use and Coe v. Errol, 116 U.S. 517,

is cited as supporting the contention.

“‘Confessedly this dining car was under the control

of Congress while in the act of making its interstate

journey and im our judgment, it was equally so when

waiting for the train to be made up for the nert

trip. It was being regularly used in the movement

of interstate traffic and so within the law.’’ (Italics

ours.)

Another case which involved the Safety Appliance Act,

and the death by accident of the fireman who had serviced

and prepared a locomotive for use but which had not yet

started on its journey is North Carolina R. R. Co. v.

Zachary, 232 U.S. 248. In that case suit was brought in

the Superior Court of Gilford County, North Carolina,

to recover damages for the negligent killing of Burgess,

a locomotive fireman in the employ of the Southern Rail-

road, lessees of the defendant. The plaintiff’s intestate

was employed at the Selma Switch Yards in discharge

of his duties as a fireman on engine Number 862, and

about 8:00 o’clock P.M. on April 29, 1909, after inspect-

ing, oiling, firing and preparing the engine for starting

on a trip from Selma to Spencer, N. C. attempted to cross

certain tracks that intervened between the engine and

his boarding house, which was located a short distance

away. His view was obstructed by another engine, No.

716, which had its blower on, and was making a loud

noise, so that plaintiff’s intestate could not hear a third

engine—Number 1551 used in the yards which was run-

ning backward at a reckless and dangerous rate of speed,

without headlight and without an adequate and competent

crew. Plaintiff’s intestate stepped from the track in the

rear of engine Number 716 and was about to step on the

main line in an attempt to cross it and was struck and

killed by the shifting engine. The state Court held that

the action was brought under the statute of North Caro.

lina, that the Federal Act did not apply. There was a

judgment for the plaintiff. The Supreme Court of North

Carolina overruled the contention of defendant that the

Federal Employers’ Liability Act applied and also held

that the action was properly brought under state lav,

A Writ of Certiorari to the North Caroline Supreme

Court was allowed. Our Supreme Court in its opinion,

p. 259, held that the evidence tended to show that train f

Number 72 of the Southern Railway had come to Selma,

N. C. from Pinners Point, Va., and other places, and

that a shifting crew was ‘‘working’’ this train so as to

take two cars from it and put them in the train that was

to include these and other cars to be hauled from Selma

to Spencer, N.C. by Engine Number 862, and that de.

ceased was employed on this trip as a fireman, for the F

trip that was about to begin and had already prepared }

his engine for the purpose. The Court further analyzing f

the evidence, held that the locomotive and ears involved

were engaged in interstate commerce, and at page 260

said:

“It is argued that so far as appears, deceased é

had not previously participated in any movement |

of interstate freight, and that through cars had not

yet been attached to his engine, his employment in

interstate commerce was still in futuro. It seems to

us, however, that his acts in inspecting, oiling, firing

and preparing his engine for the trip to Selma were

acts performed as a part of interstate commerce, and

the circumstances that the interstate freight cars

had not yet been coupled up is legally insignificant.”

(Italics ours.)

Again it is said that because the deceased had left his

engine and was going to his boarding house, he was on

a personal errand and not upon the carrier’s business,

but deceased was shortly to depart upon his run, having

just prepared his engine for the purpose and that he was

not going beyond the limits of the railroad yard when

he was struck. There is nothing to indicate that his

brief visit to the boarding house was at all out of the

ordinary or was inconsistent with his duty to his em-

ployer. It seems to us clear that the man was still ‘on

duty’”” and employed in commerce, notwithstanding his

absence from the locomotive engine.

In Chicago G. W. R. Co. v. Schendel, 267 U.S. 287, one

Ring was fatally injured while in the defendant’s service

and while engaging in interstate commerce. Breach of

the Safety Appliance Statute was alleged. It was there

contended that the car had come to rest on the side track

and had ceased to be ‘‘used’’ within the meaning of the

statute. At page 291 of the opinion, the Court said:

“Under the circumstances disclosed, we think it

clear that the use movement or hauling of the defec-

tive car within the meaning of the statute had not

ended at the time of the accident. To cut this car

out of the train, so that the latter might proceed to

destination was the thing in view and an essential

part of the undertaking in connection with which

the injuries arose.’’

In Minneapolis Etc. Ry. Co. v. Goneau, 269 U.S. 406,

409, the action was under the Employers’ Liability Act

and the Safety Applicance Act. The argument there was

that the Safety Appliance Act did not apply, that the

defective car being motionless at the time of the accident,

was not then in use, but the Court would not sustain the

contention of the defendant. At page 410 of the opinion,

the Court said:

“‘Nor can it be said that Gonean was engaged in

doing repair work. He was not a repair man, but a

brakeman, and was not repairing the carrier iron, but

was attempting to move it into place to support the

coupler, so that the coupling could be made, and the

train proceed. In short, he was engaged in the work

of coupling cars, that is, as was said by the Supreme

Court of Minnesota, a ‘coupling operation’ ’’.

In Fort Street Union Depot Co. v. Hillen, 6 Cir. 119

Fed. (2d) 307, Cert. den. 314 U.S. 642, an action was

brought under the Federal Employers’ Liability Act by

the plaintiff to recover damages for the death of her hus-

band who was injured while working as a switchman in

the defendant’s railroad yards at the Fort Street Union

Depot in Detroit. A violation of the Federal Safety Ap.

pliance Act was alleged. It was contended that the Wa.

bash car involved in the occurrence was not “‘in use”

within the meaning of the Safety Appliance Act. The

Court at page 312 said:

*‘The Wabash club car had not been withdrawn

from service and was ‘in use’ within the meaning of

the statute, even though motionless.’’ i

In Erie R. Co. v. Russell, 2 Cir., 183 Fed. 722, 724, Cert. Ff

den. 220 U. S. 607, the first question in the case was |

whether or not the acts of the defendant constituted a

violation of the Federal Safety Appliance Act. The first

phase of this question was whether the ear with the defec |

tive coupler was, at the time of the accident, ‘‘in use”

within the meaning of the amended act. To show that the _

car was in use, within the meaning of the Statute, the

Court at page 224, said:

“It is pointed out that the car was not beinz

hauled at the time of the accident, but was standing |

upon a switch track for the insertion of the knuckle ‘

in the coupling apparatus, and it is contended that

it was not being used within the contemplation of the

statute. We think, upon the authority of Johnson v.

Southern Pacific Co., 196 U.S. 1, that this contention

is not well founded. The car with the defective

coupler was not withdrawn from use. Although billed

to the repair shop, it was not sent there, nor was it

sent to any place used especially for making repairs.

The insertion of the knuckle was a simple matter.

The car was stopped only temporarily and it was

intended to couple it to the cars as soon as repaired.

These facts seem clearly to distinguish this case from

eases cited in the defendant’s brief, where accidents

occurred when cars have been sent to repair shops

or placed upon dead tracks used for repair pur-

poses.”’

To the same effect is Texas and Pac. Ry. Co. v. Rigsby,

241 U.S. 33, 43 and Great Northern Railway Co. v. Otos,

239 U.S. 349, 351.

Petitioner worked from 3:30 in the afternoon to 11:30

at night. During that period, he serviced eight or ten

‘ocomotives all of which were ‘‘in use’. There are 24

hours in a day and petitioner worked but one shift from

3:30 to 11:30 P.M. If the same number of locomotives

moved on the other shifts, there were 24 or 25 loco-

motives at least, coming into that yard each 24 hours,

each of which ‘‘had just completed an interstate run,

and was being serviced and made ready for another

_ interstate run’’. The Boiler Inspection Act and the Safety

Appliance Acts are to be liberally construed. Neither the

car inspector nor the hostler are congressionally excluded

from the benefits of the Safety Appliance Statutes. If it

is liberal construction to contend that each of these loco-

motives, as it completed an interstate run and was being

made ready for another interstate run where it was de-

layed only long enough to put sand in the sand dome, fuel

oil and water in the tender and check the lubricators, were

—_—

out of service during that period, then without any logical

reason therefor, it deprives the hostler and the hostler

helper of the benefits of these acts which were intended

for them, as much as for any other employee at any other

time or place under the conditions arising in connection

with the service being rendered by the hostler and the

petitioner here, who was the hostler helper.

IV.

The Boiler Inspection Act, fairly interpreted, must bk

held to protect all who need protection from dangerous

results due to maintenance or operation of congressionally

prohibited defective appliances.

The jury returned a verdict for the plaintiff upon

which a judgment was entered. There was evidence from

which the jury could find against the respondents for a

violation of the Federal Boiler Inspection Act.

‘The language of the Acts and the authorities we |

have cited make it entirely clear that liability in dam. |

ages to employees for failure to comply with the law ;

springs from its being made unlawful to use cars not |

equipped as required—not from the position the em- |

ployee may be in or the work which he may be doing |

at the moment when he is injured. This effect can ;

be given to the acts and their wise and humane |

purpose can be accomplished only by holding, as we |

do, that carriers are liable to employees in damages |

whenever the failure to obey the Safety Appliance

laws is the proximate cause of injury to them, when

engaged in the discharge of duty.’’

Louisville & Nashville R. R. Co. v. Layton, 243 |

U.S. 617, 621; Davis v. Wolf, 263 U.S. 239, 263.

Apposite also is the language of the Court in Coray ¥.

Southern Pac. Co., 335 U.S. 520, where an action was

brought under the Federal Safety Appliance Act and the

Federal Employers’ Liability Act to recover damages

for the death of Frank Lucus, an employee of the respond-

ent railroad. The Supreme Court of Utah held that the

object of the Safety Appliance Act “‘insofar as brakes

might be concerned” is not to protect the employees from

standing, but from moving trains; but the Court at page

522 said:

“We do not view the Act’s purpose so narrowly. It

commands railroads not to run trains with defective

brakes. An abrupt or unexpected stop due to bad

brakes might be equally dangerous to employers and

others as a failure to stop a train because of bad

brakes. And this Act, fairly interpreted, must be

held to protect all who need protection from danger-

ous results due to maintenance or operation of con-

gressionally prohibited defective appliances. Fair-

port, P. d E. R. Co. v. Meredith, 292 U.S. 589, 597.

Liability of a railroad under the Safety Appliance

Act for injuries inflicted as a result of the Act’s

violation follows from the unlawful use of prohibited

defective equipment ‘not from the position the em-

ployee may be in or the work which he may be doing

at the moment when he is injured.’ Brady v. Ter-

minal R. Assn., 303 U.S. 10, 16; Louisville & N. R.

Co. v. Layton, 243 U.S. 617, 621. In this case where

undisputed evidence established that the train sud-

denly stopped because of defective air-brake appli-

ances, petitioner was entitled to recover if this de-

fective equipment was the sole or a contributory

proximate cause of the decedent employee’s death.

Davis v. Wolfe, 263 U.S. 239, 243; Spokane # I. FE. R.

Co. v. Campbell, 241 U.S. 497, 509, 510.’’ (Empha-

sis ours.)

In Brady v. Terminal R. Assn., 303 U.S. 10, heretofore

cited, the Court, pp. 15, 16, held that an inspector was not

to be denied the benefit of the Safety Appliance Act be-

cause his work was that of inspection for the purpose

of discovering defects. The Court cited Louisville and

Nashville R. Co. v. Layton, 243 U.S. 617, 621, heretofore

cited, holding that the liability ‘“‘springs from its being

made unlawful to use cars not equipped as required—

not from the position tie employee may be in, or the

work which he may be doing at the moment he is in.

jured provided defective equipment is the proximate

cause of the injury.’’

It is submitted that these cases apply and are applicable

in every respect, with respect to the work of petitioner,

a hostler helper, when he stepped into thick grease on

the top step of the tender next to the cab (Tr. 31, 32,

33) and slipped and fell from the top of the tender to the

deck of the cab of Locomotive Number 3939 and was in-

jured.

Also in point is Tilly v. Grand Trunk R. Co., 317

U.S. 476, 486, heretofore cited; Myers v. Reading, 331

U.S. 477 482. Helpful also, is Urie v. Thompson, 371

U.S. 163, 195 and of like import is Swinson vy. Chicago

St. P. M. & O. Ry. Co., 294 U.S. 529 where the Court,

with respect to the Safety Appliance Act, at page 531, f

said:

“‘That an employee can recover, if the failure to |

comply with the requirements of the Act is a proxi-

mate cause of the accident, resulting in injury to

him while in the discharge of his duty, although not

engaged in an operation in which the safety appli-

ances are specifically designed to furnish him pro-

tection.’’

Grease on the steps of the tender leading down from

the top of the tender to the deck of the locomotive cab, |

where petitioner had to go in the course of his duties,

the presence of which was unknown to petitioner, involved

“‘unnecessary peril to life and limb’? enough so as to

permit a jury to find that the Boiler Inspection Act had

been violated. Lilly v. Grand Trunk R. Co., 317 U.S. 481,

485; O’Donnell v. Elgin, Joliet & E. R. Co., 338 U.S. ors

94 L. ed. 170, 172, and Carter v. Atlanta & St. A. B. R.

Co., 338 U.S. ...., 94 L. ed. 183, 187.

There was an evidentiary basis therefore, for the ver-

dict and judgment in favor of petitioner.

The case was properly submitted to the jury under the

Boiler Inspection Act; and the issues having been de-

termined in favor of petitioner, the judgment of the

trial court in that behalf should have been affirmed by

the United States Court of Appeals.

Petitioner, therefore, prays that this Court issue its

Writ of Certiorari herein and that the final judgment of

the United States Court of Appeals for the Seventh Cir-

cuit rendered herein, be reversed.

Respectfully submitted,

Gzorce F. Barrett,

39 South LaSalle Street,

Chicago 13, Illinois,

Counsel for Petitioner.

Marton J. Hawnican,

Juuus S. Neate and

Water E. Moss,

77 W. Washington St.

Chicago 2, Illinois,

of Counsel.

—_——

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