Opposition Brief — Lyle v. Atchison, Topeka & Santa Fe Railway Co.

TABLE OF CONTENTS.

A Summary Statement of the Case

Reason Relied on for Disallowance of Writ

Argument

Petitioner’s Cases Distinguished

Conclusion

TABLE oF AUTHORITIES.

Cases.

Baltimore & O. R. R. v. Hooven, 297 Fed. 919 (6th

Cir. 1924) 8, 13, 18, 25

Brady v. Termina! R. R. Ass’n, 303 U. S. 10 (1938) 25

Brady v. Wabash Ry., 329 Mo. 1123, 49 S. W. 2d 24

(cert. denied 287 U. S. 619) (1932)

Chicago, G. W. R. R. v. Schendel, 267 U. S. 287 (1925) 27

Chicago & N. W. Ry. v. United States, 168 Fed. 236,

238 (8th Cir. 1909)

Compton v. Southern Pac. Co., 70 Cal. App. 2d 267,

161 P. 2d 40 (1945)

Ehalt v. McCarthy, 104 Utah 110, 138 P. 2d 639, 644

(1943)

Erie R. R. v. Russell, 183 Fed. 722 (2d Cir. 1910) .... 28

Flack vy, Atchison, T. & S. F. Ry., 285 Mo. 28, 224 S. W.

415 (cert. denied 256 U. S. 90) (1920)

Fort Street Union Depot v. Hillen, 119 F. 2d 307 (6th

Cir. 1941)

ii

Great Northern Ry. v. Otos, 239 U. S. 349 (1915) .. 9%

Harlan v. Wabash Ry., 335 Mo. 414, 73 S. W. 2d 749

Johnson v. Southern Pacific Co., 196 U. S. 1 ( 1904) .. 9%

Kaminski v. Chicago, M. St. P. & P. R. R., 180 Minn.

519, 231 N. W. 189 (cert. denied 282 U. S. 872)

(1930)

Lilly v. Grand Trunk R. R., 317 U. S. 481 (1943) .... %

Louisville & N. Ry. v. Botts, 173 F. 2d 164 (8th Cir.

McCalmont v. Pennsylvania R. R., 283 Fed. 736 (6th

Cir. 1922) (cert. denied 260 U. S. 751)

Minneapolis &. Ry. v. Goneau, 269 U. S. 406 (1926) .. 27

New York, C. & St. L. R. R. v. Kelly, 70 F. 2d 548

(7th Cir, 1934) (cert. denied 293 U. S. 595) ... .8, 17, 25

North Carolina R. R. v. Zachary, 232 U. S. 248 (1914) 2%

O’Donnell v. Elgin, Joliet & E. Ry., ........ U. S.

94 L. Ed. 170 (1949)

Sherry v. Baltimore & O. R. R., 30 F. 2d 487 (6th Cir.

1929) (cert. denied 280 U. S. 555)

Texas & Pacific Ry. v. Rigsby, 241 U. S. 33 (1916) .. 2%

STaTuTEs.

Federal Boiler Inspection Act, 45 U. S. C. A. §23.. 7

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

a WN. Ca dan waC ek Wek oe KEK OLD eee 9, 23

Federal Safety Appliance Act, 45 U. 8. C. A. § letseq. 12

IN THE

Supreme Court of the United States

Octosrr Term, 1949.

No. 567.

JACK F. LYLE,

Petitioner,

vs.

THE ATCHISON, TOPEKA AND SANTA FE RAIL-

| WAY COMPANY, a corporation, anp GULF, COLO-

RADO AND SANTA FE RAILWAY COMPANY, a cor-

PORATION,

Respondents.

BRIEF OF RESPONDENTS IN OPPCSITION TO THE

PETITION FOR WRIT OF CERTIORARI AND IN

OPPOSITION TO THE BRIEF SUPPORTING SAID

PETITION.

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

The only question to be considered is whether an ap-

propriate ground exists for the issuance of a writ of cer-

tiorari. Petitioner has failed to show that the court be-

low rendered a decision in conflict with another court of

appeals on the same matter; or decided a federal question

in a way probably in conflict with applicable decisions of

2

this Court; or so far departed from the accepted an

usual course of judicial proceedings as to call for an er.

ercise of this Court’s power of supervision. Rule 38(4) (b),

Counsel seemingly have failed to perceive the elemep.

tary distinction between an extended argument on th

merits and an argument on the issue of whether certioray

should or should not be granted. They have included many

facts which have no bearing on the limited question her

involved. In addition, many of their purported statement:

of fact are not supported by the record. For these reasons

we feel that a restatement of the case, confined to accurat

facts material to a consideration of the petition, might

be helpful to the Court and take the liberty of restating it

as follows:

A SUMMARY STATEMENT OF THE CASE.

The petitioner was employed at Gainesville, Texas, as

a hostler’s helper by the respondent Gulf, Colorado and

Santa Fe Railway Company (Tr. 18). A ‘*hostler’s

helper” is not really a hostler’s helper. That is to say,

a hostler drives locomotives in railroad yards and round-

houses. He is a yard engineer (Tr. 48). A hostler’s

helper supplies locomotives with sand, water, and fuel oil,

fills the lubricating valves, supplies waste for the engine

(Tr. 19), and cleans up any oil or grease on top of the

tender or elsewhere on the locomotive (Tr. 48). He ‘‘serv-

ices’? the locomotives (Tr. 34), but does not participate

in any way in their movement. Neither man helps the

other in the performance of his duties, so that the designa-

tion “hostler’s helper’’ is a misnomer (Tr. 48).

When a locomotive pulls a train into Gainesville, the

road engineer and fireman are through with the engine.

They go home (Tr. 20). A hostler then takes over the loco-

motive and moves it to the roundhouse or elsewhere in

the yards.

January 10, 1946, Engine 3939, which is owned by the

respondent Atchison Company but operated into Gaines-

ville by employees of the respondent Gulf Company (Stip-

ulation, Tr. 44), completed a run about 8 o’clock P. M.

The engineer and fireman left the engine and the hostler

got up in the cab and moved the locomotive (which had

been detached from the train) to the sand chute near the

roundhouse, where petitioner filled the sand dome (Tr. 21).

The engine was then moved to the service track opposite

the water spout, where petitioner filled the tank with

water (Tr. 24). The engine was then moved up abovt 25

feet where petitioner placed oil in its tank (Tr. 25). The

hostler then moved the engine to the inspection pit, also

near the roundhouse, where it was stopped (Tr. 26).

4

The hostler left the locomotive after this movement, anj

thenceforth the petitioner was the only person on or about

the engine. At this place at the pit, petitioner, on the

ground, checked the lubricators on the engine. He found

it necessary to go to an oil house nearby to get some oil

for the lubricators and waste for the engine (Tr. 26, 27),

After he had taken care of the lubricators, petitioner

started into the roundhouse and happened to think abou

having noticed, while he was on top of the tender of th

locomotive servicing the oil and water, a bucket and 4

journal-box-lid hook that were out of place on top of the

tender. He climbed back on to the tender, placed th

bucket and hook in their places, and then started dow

through the cab (Tr. 28).

A person descends from the top of a tender to the dec

of a locomotive cab—a distance of about five feet—by

means of two fan-shaped iron steps (Tr. 29), roughly about

the size of a man’s foot (Tr. 52). On either side of thes

steps is a hand rail or grab iron for a person to use in

ascending or descending (Tr. 30). It was while descend-

ing these steps that plaintiff in some manner fell and hit

his left elbow either against the end of the tender or

against the deck of the locomotive cab, resulting in a

fracture of the olecranon process of the left ulna.

As we have seen, at the time of the accident, the engin

had been abandoned at the inspection pit so that the peti-

tioner could complete his work thereon. He was the only

person on or about the locomotive at the time, and the

true facts surrounding the injury are known apparently

only by him.

The complaint as originally filed alleged the occurrence

as follows: That petitioner ‘‘went to the top of the water

and fuel tank of said engine to remove a journal lid hook

and pail a [sic] journal waste and after completing said

work, proceeded to leave the top of the water tank and

to step on the steps provided at the end of the tank be-

tween 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 due to oil and grease which he had

accumulated on his shoes while on top of the water and

fuel tank, and he was caused to strike his elbow and fall

to the deck of the cab of the engine’’ (Tr. 4) [Emphasis

supplied].

Subsequent to the filing of the complaint, the petitioner’s

deposition was taken for discovery purposes (Tr. 67), at

which time petitioner swore that he had carried a flash-

light to the top of the tender with him and had inspected

the top of the tender and found it all oily (Tr. 67); that

the oil was formed all over, but the biggest puddle was

around where ‘‘they’’ [he, himself] put it in there (Tr. 68).

He testified on his deposition that he had put the oil in

the locomotive and that it was one of his duties to clean up

excess oil like that (Tr. 68). In regard to the steps, pett-

tioner testified on deposition that he did not notice thetr

condition with respect to oil or grease (Tr. 69).

After the deposition had been taken, petitioner, fearing

the outcome of his suit since his own negligence had been

thus established, amended his complaint. In lieu of the

original allegation regarding the occurrence, the amend-

ment alleged that as petitioner 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 ten-

der, he was caused to slip on oil and grease and to strike

his elbow and fall (Tr. 14).

On the trial, petitioner, the only occurrence witness, tes-

tified that as he started to get down from the top of the

tender, holding on to the grab irons with both hands, his

right foot slipped off the step (Tr. 30, 31). He testified

that he fell to the floor of the cab and landed on his left

elbow (Tr. 32); that after he had fallen he looked at the

step and saw some thick, heavy, blackish-looking grease

on the bright wetal step; that the step was nearly covered

with grease a half-inch thick (Tr. 32-3). He gave this

unequivocal testimony after having sworn under oath that

he did not notice the condition of the step with respect to

oil or grease (Tr. 69).

Further, at the trial petitioner testified, as he had on

deposition, that it was his duty:as a hostler’s helper to

clean up any oil, grease or foreign substance on or about

the locomotive. This duty was not limited to cleaning up

oil or grease only if reported by the foreman, as counsel

suggest (Pet. Br., p. 14). See Tr. 49, 68, 142, also opinion

of court below.

Kight distinct acts of negligence were charged in the

complaint, but they were all abandoned at the trial, and

at the completion of all the testimony counsel for peti-

tioner announced that he was submitting his case solely on

the issue of violation of the Boiler Inspection Act (Tr. f

170) in that respondents had permitted grease, oil, or

foreign substance to be and remain upon the step. Allof |

the court’s instructions were based solely on the alleged |

Boiler Inspection Act violation, and no instructions per- |

taining to negligence were given (Tr. 171). Petitioner §

took no exception to the omission of negligence charges. |

Respondents, at the conclusion of all the evidence on the |

trial, made timely motions for directed verdict and r- |

newed their earlier motions to strike from the complaint |

the allegations pertaining to violation of the Boiler In

spection Act on the ground that the Act was not applicable

to this cause for the reason that at the time of the alleged

occurrence the locomotive in question was not in use (Tr.

155, 156, 158).

Those motions were denied (Tr. 159).

REASON RELIED ON FOR DISALLOWANCE OF

WRIT.

The only thing which was decided by the Court of Ap-

peals was that a locomotive, withdrawn from use so that

it may be serviced and placed in condition for further

use, is not subject during that period of withdrawal to the

penalties of the Boiler Inspection Act, since it is not dur-

ing such withdrawal im use on the line and employed in

active service, as those terms are used in the Act.

As we shall proceed to demonstrate, this uncomplicated

proposition of law is so well established by the authorities

that there exists no perceptible reason for a review of the

decision below.

THE LAW.

The Borer Inspection Act, 45 U. S. C. A. 23, provides

that:

“It shall be unlawful for any carrier to use or per-

mit to be used on its line any locomotive unless said

locomotive, its boiler, tender, and all parts and ap-

purtenances 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, * * *.’? [Emphasis supplied.]

SUMMARY OF ARGUMENT.

At the trial, the petitioner withdrew his allegations of

ordinary negligence—having introduced insufficient proof

to support them—and submitted his case solely on the al-

leged violation of the Boiler Inspection Act.

Since at the time of the accident, the locomotive had been

withdrawn from service so that it could be supplied, ‘‘serv-

iced,’’? and made ready for another run, it was not in use

or employed in the active service, as those two terms are

used in the Boiler Inspection Act. Therefore, the provi-

sions of the Boiler Inspection Act are not applicable, and

there was no violation of that Act. New York, C. & St. L.

R. R. v. Kelly, 70 F. 2d 548 (7th Cir. 1934), cert. denied 293

U. S. 595; Sherry v. Baltimore & O. R. R., 30 F. 2d 487

(6th Cir. 1929), cert. denied 280 U. S. 555; Baltimore € 0. |

R. R. v. Hooven, 297 Fed. 919 (6th Cir. 1924); McCalmont |

v. Pennsylvania R. R., 283 Fed. 736 (6th Cir. 1922), cert. |

denied 260 U.S. 751; Chicago & N. W. Ry. v. United States, é

168 Fed. 236, 238 (8th Cir. 1909); Compton v. Southern |

Pac. Co., 70 Cal. App. 2d 267, 161 P. 2d 40 (1945); Kamin. |

ski v. Chicago, M. St. P. @ P. R. R., 180 Minn. 519, 231 |

N. W. 189, cert, denied 282 U. S. 872 (1930) ; Harlan v. Wa- }

bash Ry., 335 Mo. 414, 73 S. W. 2d 749 (1934); Brady v. ;

Wabash Ry., 329 Mo. 1123, 49 S. W. 2d 24, cert. denied 287 |

U. S. 619 (1932); Flack v. Atchison, T. & S. F. Ry., 8 }

Mo. 28, 224 S. W. 415, cert. denied 256 U. S. 90 (1920).

Congress studiously limited the application of the ab- }

solute requirements of the Boiler Inspection Act to locomo- }

tives actually in use in the active service of the carrier. It

did not declare unlawful the ownership or loan of a loco-

motive which is not in proper condition.

9

Since there is an unqualified duty to maintain locomo-

tives in use in a condition which is not unsafe for those who

are required to use them in active service, Congress log-

ically contemplated that a locomotive could only be placed

in such a condition of safety by taking it out of use and

effecting proper repairs and services. Chicago & N. W. Ry.

v. United States, 168 Fed. 236 (8th Cir. 1909).

During the time that a locomotive is withdrawn from use

for servicing or repairs, a carrier’s duty is limited to one

of ordinary care under the general provisions of the Fed-

eral Employers’ Liability Act. Compton v. Southern Pac.

Co., 70 Cal. App. 2d 267, 161 P. 2d 40 (1945); Brady v.

Wabash Ry., 329 Mo. 1123, 49 S. W. 2d 24, 29, cert. denied

287 U. S. 619 (1932); Harlan v. Wabash Ry., 335 Mo. 414,

73 S. W. 2d 749, 758 (1934); Ehalt v. McCarthy, 104 Utah

110, 1388 P. 2d 639, 644 (1943).

The ruling of the court below is correct, and petitioner

has advanced no valid reason for the allowance of a writ of

certiorari. Rule 38(4)(b).

ARGUMENT.

The Locomotive Was Not in Use in Active Service. There.

fore, the Boiler Inspection Act Is Not Applicable.

Since petitioner relied entirely for recovery upon a

violation of the Boiler Inspection Act, we contend that the

Court of Appeals was correct in reversing a verdict and

judgment for petitioner, because at the time of the alleged

occurrence Engine 3939 was not in use in active service.

In other words, there was no violation of the Act.

As we have indicated, prior to the accident the engine

crew had left the engine in the yards at Gainesville, upon

completion of its run (Tr. 20). Servicing was necessary

before the engine could make another trip, and a hostler

moved the engine to the service track and inspection pit, f

all near the roundhouse, for such servicing (Tr. 21). It f

was petitioner’s duty to undertake the servicing of this |

locomotive. His duties as hostler’s helper required him

to put sand, oil, and water in the engine, to fill up the |

lubricator, to clean up any excess oil or grease on or about }

the locomotive, and to do anything else that the engine |

needed (Tr. 48-49). He serviced the engine while it was

at the roundhouse (Tr. 22, et seq.). The hostler who moves }

or drives the engine usually or normally leaves the engine |

after it has been moved to the roundhouse for servicing, }

and in this case the hostler in fact had left the engine (Tr.

49). There was no reason for the engine to be moved or

for the hostler to return to the engine until after peti-

tioner would have completed his work (Tr. 50). The

engine was not coupled to any cars or other engines; it was

standing all by itself and was not moving (Tr. 49).

11

At the time of the occurrence, no one except the peti-

tioner was on or about the engine (Tr. 49). While under-

going this servicing, the engine admittedly was being made

ready for another run. However, from all that appears,

no other run was ever made. Assuming that it did make

another run, there is no showing whether that run was

made the next day, the next week, or the next month. Ob-

viously, it was out of service and could not have been put

back into use until all of the necessary servicing had been

completed, for as everybody knows an engine cannot run

without fuel, water, and other supplies.

As aptly stated by the court below, 177 F. 2d 221, 223

(Tr. 184):

‘c# * * It is opposed to reality to say that under

such circumstances the locomotive was in use so that

the mandatory 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 antith-

esis 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 enacting the legislation.

‘‘This conclusion * * * is in line with the decisions

of other courts, both state and national, interpreting

the provisions of this statute. * * *

“# * * it seems clear to us that there is but one

answer to the question presented and that is that the

locomotive in question was not in use within the mean-

ing of the Boiler Inspection Act at the time of the

injury. Consequently plaintiff failed to make out a

prima facie case.’’

On these facts there can be no denial that at the time of

the occurrence, Engine 3939 had been taken out of service

and moved to the roundhouse to be serviced and readied for

another run. The engine necessarily was not ‘‘in use,’’

and therefore the Boiler Inspection Act is not applicable.

The Act does not declare unlawful the ownership or the

12

borrowing of a locomotive which is not in proper conditio

and safe to operate. The prohibition is against the employ.

ment in the active service of such a locomotive.

Neither does the Act apply to locomotives when ten.

porarily withdrawn from active use, even though they ar

intended to be again and shortly put in such active ye

Flack v. Atchison, T. & S. F. Ry., 285 Mo. 28, 224 § w

415 (cert. denied 256 U. S. 90) (1920), was a suit under th

Federal Employers’ Liability Act for the death of a boiler

foreman while inspecting and attempting to repair a lov.

motive boiler. There was a verdict and judgment for

plaintiff, which was reversed by the Supreme Court of

Missouri. At the time of the accident the engine was in

defendant’s roundhouse. Even though the Boiler Inspe. f

tion Act was not brought into the case until after argu.

ment in the Missouri Supreme Court, the court waived the

tardy appearance of this suggestion, and overruled it be. §

cause, as the court said (p. 423):

“‘At the time of the accident here in suit, the engine

in question was not being used in ‘moving interstate

or foreign traffic,’ nor was it ‘in the active service of

such carrier in moving traffic’ within the intent and

purpose of that act, as we construe it. The engine was |

undeniably being prepared for use in interstate traffic,

and the deceased met his death while engaged in that

preparation. The work then being done was necessary

in order to avoid a violation of the provisions of the

act whose penalties [plaintiff] now invokes.”’

The Sarery Appuiance Acr (45 U. S. C. A. 1, et seq) |

has a prohibition similar to that contained in the Boiler

Inspection Act. It provides that it shall be unlawful for

a common carrier ‘‘to haul or permit to be hauled or used

on its line any car subject to the provisions of this Act

not equipped with’’ appliances provided for therein. The

duty imposed upon railroads by that Act, like the duty

13

under the Boiler Inspection Act, is an absolute, unqualified

one. The courts, Federal and State, have interpreted the

two acts similarly.

The leading case on the nonapplicability of the Boiler

Inspection and Safety Appliance Acts to locomotives and

cars temporarily withdrawn from use for repairs or

servicing is Baltimore ¢ O. R. R. v. Hooven, 297 Fed. 919

(6th Cir. 1924). There, as the court itself stated in the

opinion, a locomotive had been temporarily withdrawn

from service and was undergoing minor repairs in a round-

house ‘‘in preparation for early return to service.’’ The

purpose of the withdrawal was so that the engine could

undergo its regular monthly inspection and so that certain

running repairs could be made. As was the custom as to

engines brought into the roundhouse, this locomotive was

sprayed with oil for the purpose of conditioning it and pro-

tecting it from rust. The oil had not been removed, and

as a consequence, Hooven, a machinist, descending after

making minor adjustments on top of the boiler, slipped in

stepping from the end of a steel running board, where the

oil had been left, and fell from the engine. As stated by

the court (p. 920): ‘‘At the time of the accident the engine

was about ready for service, and was called to go out on the

road shortly thereafter.’’ Plaintiff had judgment below,

which was reversed on appeal, the Circuit Court of Ap-

peals stating the question to be: ‘‘Is it the intent of the

Act to have the absolute liability imposed by it attached

to the vehicle during such time as it is withdrawn tem-

porarily from actual service, and after it has reached the

place of repair and is undergoing conditioning and repair

for the purpose for which it is intended and for the use to

which it is assigned?’’ Said the court (p. 922):

““* * © In actions under the Safety Appliance Act

the statutory criterion is whether the car is ‘in use’

‘on its line,’ within the true purpose and scope of the

14

act. ° * * When we regard the reasons upon which

the broad extent of the act has been upheld and its

constitutionality sustained, it is difficult to see where.

in the safety of a highway of interstate commerce may

be endangered by a locomotive withdrawn from serv.

ice and at rest in a stall of the railroad’s roundhouse

undergoing repairs, even though such withdrawal be

but temporary.

““* * * the act of repairing an appliance which be.

comes defective in use * * * [is an act] in compliance

with and not in violation of law, and is not in our judg.

ment [an act] which the law intends to penalize. The

process of conditioning an engine and preserving it

from deterioration through rust by spraying it with

oil appears to be * * * the usual and necessary treat-

ment of the engine during monthly inspection, con-

tributing to the safety of the apparatus while in actual

use. If during such treatment the safety appliances

are rendered temporarily insecure by the presence of

oil upon them, it does not seem to us to present a

condition that comes within the purview of the act,

when as in this case the engine is completely with.

drawn from all relationship to the highways of inter.

state commerce, and from all connection with the move.

ment of trains thereon.

“** * * it becomes the clear duty of the carrier in

conformity with [the purpose of the Safety Appliance

Act] to exercise a high degree of diligence in discover. |

ing and repairing defects in its safety appliances and

in withdrawing the car from commercial use while they

exist. Such diligence seems also to be imposed on the

carrier by the Boiler Inspection Act. * * * Can it be

said that it is the intention of the Safety Appliance

Act to penalize such diligence by extending the abso- |

lute liability of the carrier through the period of re-

placement and repair, and reaching even a case where

the insecure condition of the appliance which failed

was the natural and temporary result of the recondi-

tioning process? We think such contention untenable,

unless supported by specific direction of the statute.

“eee

15

‘It will be observed that it is within the contempla-

tion of the statute that safety appliances will become

defective, and that such defects will necessitate with-

drawal from service of the defective car while repairs

are being made, and for that purpose the penalty of

the statute is for the time being lifted.”’

The court concluded (p. 924) that the Act was not ap-

plicable, it having found no cases from which any holding

may be inferred to the effect that equipment at rest and

not in relation to movement of other ears is subject to the

penalties of the Act. Said the court (p. 924):

“** * * The plaintiff based his right to recover for

ms his injury solely upon the absclute liability claimed

to be imposed upon the defendant by the Safety Ap-

pliance Act, and it was on this theory that it was

submitted to the jury by the trial court. * * * This

being so, the District Judge erred in denying the de-

fendant’s motion for a directed verdict. * * *”’

To the same effect is the opinion in McCalmont v. Penn-

sylvamia R. R., 283 Fed. 736 (6th Cir. 1922) (cert. denied

260 U. S. 751). There, the Circuit Court of Appeals said

(p. 739) :

‘“** * In the present case no hauling was in progress

or in immediate contemplation. The car was wholly

out of present use. The original putting on of the

chain and the further adjustment of the chain were

in the nature of temporary repairs which would per-

mit the car to be taken to the shop. * * * Fully remem-

bering that the benefits of the act are not confined to

those who were actually trying to couple at the mo-

ment of the injury, still it does not follow that they

extend to one who is merely putting the couplings in

condition for a use which, though it may come soon,

is distinctly of the future and not of the present.’’

Sherry v. Baltimore & O. R. R., 30 F. 2d 487 (6th Cir.

1929) (cert. denied 280 U. S. 555), was another action

16

under the Safety Appliance Act. The plaintiff was a car

inspector whose duty it was to inspect bad order cars, to

make such repairs as could be made on the ground, or to

order the car to the repair shops for that purpose. One

car had been placed upon a ladder track in the general

yard, cut from the train, and reported to plaintiff as hay.

ing a defective brake. In order to determine whether the

brake was operative, having previously discovered that the

car had a badly bent brake staff, plaint'ff mounted to the

top of the car and attempted to apply the brake. The

brake staff broke and threw plaintiff to the ground. At

the trial, a verdict was returned for the defendant on the

ground that the car was not in use or being hauled, and,

therefore, the provisions of the Safety Appliance Act were

not applicable. That judgment was affirmed. Said the fF

court (p. 488):

““e'* * The remedy is statutory, and liability, where |

the statute attaches, is absolute and independent of |

negligence. :

‘«* * * The absolute liability above referred to is im- |

plied from these statutory provisions, and it is to be |

noted that the inhibited act on the part of the railroad

company in each is ‘the hauling or permitting to be

hauled or used’ on its line any car with the required

equipment, in defective condition. This constitutes }

the ‘violation of the act’ we have above referred to |

in statement of the general principles deduced from |

precedent. It has accordingly been held by this court

that the act has no application to equipment with

drawn from service and undergoing minor repairs

preparatory to early return to service. B. € O. R.Co. }

v. Hooven (C. C. A.) 297 F. 919. Cf. McCalmont v. |

Pennsylvania R. Co. (C. C. A.) 283 F. 736.

“In the instant case the defective car was not being é

hauled or used by the defendant, except in that it was

stored temporarily upon one of the ladder tracks. It |

had been withdrawn from use for the very purpose of

undergoing repair. No movement was immediately

17

contemplated, and no action of setting the brakes was

necessary, save as incident to inspection and re-

aoe, ***

“* * * The defectively equipped car not having been

in use within the meaning of the Safety Appliance

Act, at the time of injury to the plaintiff, the verdict

was properly directed for the defendant, and the

judgment rendered thereon is affirmed.’’ [Emphasis

supplied. }

New York, C. & St. L. R. R. vy. Kelly, 70 F. 24 548 (7th

Cir. 1934) (cert. denied 293 U.S. 595). Plaintiff was a field

brakeman in a yard crew who sustained a personal injury

due to the absence of a grabiron at the top of the side

ladder of a freight car. The ear from which he fell was

on the repair track for repairs. The vital question was

whether or not a freight car removed from the service to

the extent it is taken out of actual service and put on the

repair tracks for specified repairs is ‘‘in use’’ within the

meaning of the Safety Appliance Act. The Cireuit Court

of Appeals was of the opinion that it is not, and reversed

a judgment for plaintiff. Said the court (p. 550) :

‘After a defective car reaches the place of repair,

the Safety Appliance Act is inapplicable because such

car has been withdrawn from service and is not ‘in

use’ under the provisions of the act, nor does mere

shifting of cars within the place of repair put the car

‘in use’ within the meaning of the statute. [Citing

cases, ]’’

Further from the opinion (p. 551):

‘Had the car in question been en route to the repair

place, a different situation would have been presented,

but after it reached the repair place, was out of serv-

ice, the carrier was entirely within its rights in taking

off the handhold or any other of the safety appliances

necessary to effect the repairs, without violating the

Safety Appliance Act.

“Since it is so clear that the car was not in use,

it was erroneous to submit the case to the jury;***”

18

Kaminski v. Chicago, M. St. P. & P. R. R., 180 Minn, 519,

231 N. W. 189 (cert. denied 282 U. 8. 872) (1930). Plaintift

a rear brakeman ( switchman), was injured in a heavy re.

pair yard—a yard to which freight cars needing extensive

repairs are taken, and which is used only for making re.

pairs. Plaintiff attended to the making of couplings of a

cut of cars. When the couplings were completed he was

standing on the right-hand side of the rear car and gave a

signal to go ahead. As the cars began to move, he put

his left foot in the stirrup and grasped a grabiron, which

came off, causing him to fall to the ground. Since the

grabiron was to be removed, the nuts had been burned

off and the grabiron simply rested on the ends of the bolt

with nothing to hold it in position. Plaintiff had a verdict

and judgment below, but this was reversed by the Supreme

Court of Minnesota. The court relied upon Baltimore ¢ fF

O. R. R. v. Hooven and Sherry v. Baltimore & O. RR, &

supra, and reached the conclusion that ‘‘where a bad order |

car has been withdrawn from service and taken to and

placed in a repair yard where it is being repaired, subse-

quent movements of the car made in the course of the work 3

and for the purpose of facilitating it are not within the ©

operation of the Safety Appliance Act.”’ 2

Harlan v. Wabash Ry., 335 Mo. 414, 73 S. W. 2d 74 ©

(1934). This was a suit under the Boiler Inspection Act. ©

The engine in question had come in from the west, and |

was put on the ‘‘go out’? track for the purpose of hauling ©

a train east at about the middle of the afternoon. The °

plaintiff and his superior, a machinist, were to repair the

locomotive stoker. Since they could not open the stoker

in the yards, the afternoon run was cancelled and the

engine was taken to the roundhouse. Thereafter, plain- ©

tiff and his superior went to this engine in the roundhouse, ©

and it was here that plaintiff stepped into an open trap-

door in the locomotive cab and sustained his injury.

19

The case turned on the question of whether the engine,

called for a run, was in use at the time of the occurrence,

and in this connection the Supreme Court of Missouri had

this to say (p. 753):

“Nor can plaintiff recover under the Boiler Inspec-

tion Act for the reason that the engine in question on

which plaintiff was working when injured was not at

the time in use or moving in interstate commerce, as

we held in Brady v. Wabash Ry. Co., 329 Mo. 1123, 49

S. W. (2d) 24, 29. * * * This act, like the Safety Ap-

pliance Act (45 USCA §1 et seq.), while applicable

only to interstate commerce, is narrower in its scope

and application than is the Federal Employers’ Lia-

bility Act. * * * The Boiler Inspection Act, like the

Safety Appliance Act, does not rest on negligence, but

is absolute in its requirements and is restricted to

locomotive engines when in use in moving interstate

traffic. It is only when in such use that the engine and

appliances are required to be ‘in proper condition and

safe to operate in the service to which the same are

put.’ We pointed out in the Brady Case that the

a Safety Appliance Act, and the same is true of the

‘ Boiler Inspection Act, does not apply to cars or engines

when withdrawn from active use in interstate com-

merce for temporary repairs, though intended to be

again and shortly put in such active use; citing Balti-

more & Ohio Ry. Co. v. Hooven (C. C. A.), 297 F. 919,

922, as holding that the absolute liability of a railroad

for defective appliances does not ‘follow its instru-

mentalities of transportation beyond their actual pres-

ent use or hauling, or, more specifically,’ it is not ‘the

intent of the act to have the absolute liability imposed

by it attach to the vehicle during such time as it is

withdrawn temporarily from actual service and after

it has reached the place of repair and is undergoing

conditioning and repair for the purpose for which it

is intended and for the use to which it is assigned.’

The opinion then adds: ‘So we think such liability

would not attach to the instrumentalities of transporta-

tion before their acceptance and actual present use or

“ho wea 447 Par atcha heise BS. Fg Yeh ue mt

20

hauling in such commerce. In the case mentio

it was held that the defendant’s liability under the

Safety Appliance Act did not follow and cover ap

engine temporarily withdrawn from service for minor

repairs, though in preparation for early return to

service.’ We also quoted from the Hooven Case ag

follows: ‘The test of liability under the Safety Appli.

ance Act must not be confused with the test of lia.

bility under the Federal Employers’ Liability Act,***

In actions under the Employers’ Liability Act the

statutory test is whether the employee of the inter.

state carrier is himself at the time engaged in inter.

state commerce; he is deemed to be so employed if he

is working upon an ‘instrumentality of interstate-com.

merce’; and a car or engine is sometimes deemed to

continue to be such instrumentality, even though it is

not at the precise time active therein. In actions

under the Safety Appliance Act the statutory criterion

is whether the car is ‘in use’ ‘on its line,’ within the

true purpose and scope of the act. The two tests aré

not synonymous.

“It follows from these rulings that under the facts

shown here the engine in question was not in actual

use in moving interstate commerce at the time of the

plaintiff’s injury, but was so far withdrawn from such

active use as to make the provisions of the Boiler In.

spection Act inapplicable.”’

Brady v. Wabash Ry., 329 Mo. 1123, 49 S. W. 2d 24, cert.

denied 287 U. S. 619 (1932), is quoted from at length in

the Harlan case, just cited. A string of cars had been |

placed on an interchange track by another railroad, there |

to be inspected and either accepted or rejected by the

Wabash (by whom Brady was employed). Brady’s duties

were to inspect these cars for safety-appliance defects,

and he was injured by reason of a loose grabiron during

his inspection of one of them. He based his action solely

on the Safety Appliance Act. Since the Wabash, whieh

had not yet accepted ihe car, was not using it on its line,

recovery under the Act was denied.

21

Compton v. Southern Pac. Co., 70 Cal. App. 2d 267, 161

P. 2d 40 (1945). Plaintiff, a roundhouse machinist, was

working on a defective locomotive then in the roundhouse.

Plaintiff sustained injury by steam which escaped from a

defective check valve into the pump on which he was work-

ing, and sought to recover under the Boiler Inspection

Act. The accident occurred at about 7:15 A. M., at which

time the engine had been called for service at 8 A. M.;

the locomotive had a fire in the firebox and steam up in the

boiler. The trial court permitted the jury to decide whether

at the time of the accident the locomotive was ‘‘in use’’ on

defendant’s line within the meaning of the Boiler Inspec-

tion Act. On appeal, this was held to be error, and a judg-

ment for defendant was directed on the ground that as

a matter of law the Act had no application, since at the

time of the accident the locomotive was not in use on de-

fendant’s line within the meaning of the Boiler Inspection

Act. After reviewing the cases cited herein by us, the court

said (p. 45):

“The several federal statutes imposing absolute

liability on railway carriers for injuries caused by de-

fective equipment all seem to have been drawn care-

fully to exclude such absolute liability while the car or

engine is removed from actual service, even tempo-

rarily, for repairs. * * *

“It will be noted that in not one of the absolute

liability sections, except Sec. 4 [providing that it shall

be unlawful for an interstate railroad carrier ‘to use

any car in interstate commerce’ not provided with

grab irons] does the statute apply to cars or engines

simply engaged in interstate commerce. In each sec-

tion, except Sec. 4, some further limitation appears.

In some of the sections it is required, in addition,

that the equipment be used in ‘moving interstate

traffic.” Others use language more comparable to that

used in [the Boiler Inspection Act]. But with the

exception of Sec. 4, each of the sections in Chapter 1

22

of Title 45 U. S. C. A. clearly and without ambiguity

indicates that it is to apply only when the car is in

use on the line or in moving traffic. This, by neces.

sary implication, excludes such sections when the

equipment is removed from the line and placed in a

roundhouse for temporary or more serious repairs,”

In the case at bar, one of petitioner’s duties was to

render the locomotive in a condition which would comply

with the provisions of the Boiler Inspection Act when it

was again placed in use. He is claiming a remedy under

the Boiler Inspection Act for the existence of a defect

which it was his duty to correct so that the locomotive

might conform to the standards imposed by that act.

This dilemma might have been the result of a strict ap.

plication of the Boiler Inspection Act had Congress not

studiously avoided it by limiting its application to locomo.

tives im use and in the active service of such carrier. Sine

there is an unqualified duty to maintain locomotives in ux

in a condition which is not unsafe for those who are re.

quired to use them in active service, Congress logically :

contemplated that a locomotive could only be placed in ©

such a condition of safety by taking it out of use and effect. ”

ing proper repairs and services.

In Chicago ¢ N. W. Ry. v. United States, 168 Fed. 2%, |

238 (8th Cir. 1909), it is said:

“‘The object of the safety appliance statutes was

manifestly to require interstate carriers to maintain

their rolling stock in a certain condition of safety. It §

could not have been the intention of Congress to im-

pose this duty upon carriers, and at the same time

deprive them of the only practical method of meeting :

its requirements. Rolling stock must necessarily be.

come defective, within the terms of these statutes, both

by use and by accident * * * The only practical

method of railroading requires that such vehicles, §

23

when out of repair, shall be taken to the shops; and

if they are wholly excluded from commercial use them-

selves, and from other vehicles which are commer-

cially employed, they do not fall within any of the

classes covered by the safety appliance acts. A car-

rier may move one or more cars by themselves to re-

pair shops, for the purpose of having them placed

in a condition to conform to the safety appliance acts,

without being guilty of a violation of those acts while

thus engaged in an honest effort to meet their require-

ments.”’

During the time that equipment is withdrawn from use

for servicing or repairs, a carrier’s duty is limited to one

of ordinary care under the general provisions of the Fed-

eral Employers’ Liability Act.

Attention is invited to the interesting comments made by

the Supreme Court of Utah in Ehalt v. McCarthy, 104 Utah

110, 138 P. 2d 639, 644 (1943) :

‘““* * * we do not believe that it was within the con-

templation of the Boiler Inspection Act to include an

engine whose dangerous condition was itself due only

to the failure of those charged with operating the en-

gine to so attend to the very fundamental duty of

supplying the water needed to run the engine.”’

and at page 645:

“* * * The carrier has the duty to supervise and

inspect and to see that such equipment is not permitted

to be used on its line in active service until the poten-

tial danger is removed.”

and again at page 646:

“* * * A danger created by the non-attention or

neglect incident to operation which does not produce an

engine defective in itself constitutes the basis for an

action, not under the Boiler Inspection Act, but under

other sections of Title 45.* * * The danger being one

incidental to operation rather than one which becomes

24

an attribute of an engine so as to make it unnecessarily

perilous to life and limb, as meant by the Boiler Ip.

spection Act, the action would have to be brought under

the Federal Employers’ Liability Mee

It is clear that the Boiler Inspection Act has no applica.

tion to the case now under consideration by this Court, and

since petitioner waived all charges of ordinary negligence,

we submit that the Court of Appeals was correct in holding

that the trial court should have directed a verdict for the

respondents.

PETITIONER’S CASES DISTINGUISHED.

Counsel for petitioner have not even attempted to dis-

tinguish any of the cases relied on by the Court of Ap-

peals in support of its decision. Those cases clearly are

not distinguishable from the one presently at bar. Fur-

thermore, none of the decisions relied on by petitioner

supports his position. He has resorted to twisted inter-

pretations of numerous decisions which have no rele-

vancy here, in an obvious attempt to mislead.

The following are the cases relied on by petitioner, and

the reasons why they are not in point:

Brady v. Terminal R. R. Assn., 303 U. 8. 10 (1938). This

Court’s statement of facts at page 13 distinguishes that

case from this one, for there we learn that ‘‘the car had

been brought into the yard at Granite City, and placed on

a receiving track temporarily pending the continuance of

transportation. If not found 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.”’ (Emphasis added.) The

Supreme Court distinguished this case, for the reasons

stated, from two of the cases on which we rely: Baltimore

€ 0. R. R. v. Hooven, 297 Fed. 919; and New York, C. &

St. L. Ry. v. KE elly, 70 F. 2d 548. We submit that the Brady

case, far from bolstering petitioner’s position, is author-

ity for the correct ruling of the court below in the case at

bar.

Johnson v. Southern Pacific Co., 196 U. S. 1 (1904). Ob-

viously, this case is not in point, for the dining car had not

been withdrawn from service for repairs or servicing. The

coupler involved in this suit under the Safety Appliance

26

Act failed to couple automatically during a Switching op.

eration.

Louisville € N. Ry. v. Botts, 173 F. 2d 164 (8th Cir. 1949)

The first sentence of the opinion eliminates this case from

consideration, for there we find that the plaintiff, a swite).

man, was injured when he slipped off a footboard of a mor.

ing switch engine as he was attempting to mount it. The

accident occurred in the midst of a switching movement

(fourth full paragraph, p. 166] in which the defective gy.

gine was being used.

O'Donnell v. Elgin, Joliet & E. MG: Sin U. 8. 28

L. Ed. 170 (1949). This case also is not apposite, because

in it the switchman was injured while engaged in a switeh.

ing operation. The car or cars involved had not been with.

drawn from service. The holding of the Supreme Court i:

this case was that the plaintiff was entitled to a peremptory

instruction that to equip a car with a coupler which broke

in the switching operation was a violation of the Act. The

Court certainly did not hold, as petitioner contends, that

the mere ownership or loan of a defective locomotive or

car which is not in use violates the Safety Appliance or

Boiler Inspection Act.

Lilly v. Grand Trunk R. R., 317 U. S. 481 (1943). Here |

again the plaintiff, a brakeman, was injured when he fell

from the top of a locomotive tender while he was pulling a

water spout over the tender’s manhole. The opinion of the

Supreme Court does not clearly so indicate, but by refer-

ence to the opinion below, 312 IIL. App. 73, 76, 37 N. E. %

888, it will be seen that the locomotive was engaged in

switching operations; that the engine crew was aboard and

operating the engine. That was not a case where the loco-

motive had been withdrawn from use for servicing, and

abandoned while that work was in progress,

North Carolina R. R. y. Zachary, 232 U. S. 248 (1914).

27

Counsel state, at page 53 of their brief, that this case in-

volved the Safety Appliance Act. That is not so. Our

copy of 232 U. S. indicates that the question involved was

whether plaintiff ’s right to recover was based on the Fellow

Servant Act of North Carolina or on the Federal Em-

ployers’ Liability Act; i. e., whether at the time of the acci-

dent the employee, who stepped in front of a moving switch

engine, was engaged in state or interstate commerce. Since

both respondents in this Lyle case have admitted the inter-

state commerce allegations of the complaint, and that phase

of the matter is not at issue, we have no idea why counsel

cited this case at least three times in their brief.

Chicago, G. W. R. R. v. Schendel, 267 U. S. 287 (1925).

While the train, upon which decedent was working, was on

the main line a drawbar pulled out of a car. Thereupon

the crew chained that car to the one immediately ahead.

The whole train was then pulled on to a siding with the

intention of detaching the damaged car and leaving it there.

The decision has no bearing, because it was while in the

act of detaching the crippled car from the train that the

decedent was injured.

Minneapolis &c. Ry. v. Goneau, 269 U. S. 406 (1926). The

accident in this case, like the one in Schendel just referred

to, happened when a brakeman, in an endeavor to couple a

train where it had parted between two cars while en route,

due to a defect in one of the automatic couplings, went be-

tween the ends of the cars, lost his balance, and fell from

a bridge on which the cars had stopped.

Fort Street Union Depot v. Hillen, 119 F. 2a 307 (6th

Cir. 1941). The defective club car involved in this suit was

one of a number of cars which had composed a Wabash

passenger train which had arrived in the station prior to

the accident, and was standing on a track in the yards next

the one on which plaintiff was riding when he sustained

his injury. There is no indication that the club car was

28

undergoing either repairs or servicing, and the case js hot

in point.

Erie R. R. vy. Russell, 183 Fed. 722 (2d Cir. 1910). Her

the defective car was standing on a track in the SWiteh

yard. The forepart of the opinion, which counsel quote at

page 57 of their own brief, shows why the case is not ix

point:

“‘The car with the defective coupler was not with.

drawn 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.’’

Texas & Pacific Ry. v. Rigsby, 241 U. S. 33 (1916), and

Great Northern Ry. v. Otos, 239 U. S. 349 (1915), are cited

by counsel as being to the same effect as Eric R. R. y.

Russell. In Rigsby the accident occurred during ¢

switching movement in taking some bad order cars to the

shops, there to be repaired. In Otos, the plaintiff was a

switch foreman injured while breaking up a train “whic

had come into his state from the west.’” The third para

gzaph of the opinion, p. 351, aptly discloses why the case is

inapposite here, for it says:

““* * * [The car] had not been withdrawn from inter.

state commerce, but merely subjected to a delay in

carrying it to its destination. At the moment of the

accident it was accessory to switching the Duluth ear.”

CONCLUSION.

In the trial court, at the close of all the evidence, the

petitioner concluded that there was insufficient proof to

support his allegations of ordinary negligence under the

Federal Employers’ Liability Act, and therefore witb-

drew them and submitted his case solely on his allegation

of the Boiler Inspection Act violation (Tr. 170, 171). Ae

29

cordingly, the trial court gave no instructions dealing with

negligence under the Federal Employers’ Liability Act,

and charged the jury solely as to the alleged violation of

the Boiler Inspection Act (Tr. 171). Petitioner did not

object to the charge.

The Court of Appeals correctly interpreted the law and

applied it to the evidence in this record. Since the loco-

motive clearly was not in use in active service at the time

of the accident, the provisions of the Boiler Inspection

Act were not applicable. Obviously, a carrier must occa-

sionally withdraw its locomotives and cars from use so

that they may be placed in such condition as will make

them conform to the absolute requirements of the Safety

Appliance and Boiler Inspection Acts.

The straightforward and well-reasoned opinion of the

United States Court of Appeals for the Seventh Circuit

(Tr. 181, et seg.) is clearly right. That opinion is not in

conflict with any other decision on the same matter; nei-

ther is it in probable conflict with applicable decisions of

this Court. We have cited and quoted from the only ten

federal and state opinions which have decided the question.

In each of those cases the decision has been in line with

the one now under attack, and in six of them certiorari was

sought but consistently denied by this Court.

For the reasons set out in this brief, the respondents

pray that the writ be denied.

Respectfully submitted,

Fioyp J. Sruprt,

Counsel for Respondents,

1211 Railway Exchange,

80 E. Jackson Blvd.,

R. §. OvutLaw, Chicago 4, Illinois.

THomas J. Barwert,

Pamir E. von Ammon,

Of Counsel.