Petition for Writ of Certiorari — Moleton v. Union Pacific Railroad

INDEX

SUBJECT INDEX

PAGE

Petition for Writ of Certiorari 1

Summary and Short Statement of Matter Involved 1

Jurisdictional Statement 4

Questions Presented 5

Reasons Relied On for Allowance of Writ 6

Prayer for Writ 8

Brief in support of Petition 9

Opinion of Courts Below 9

Grounds on which jurisdiction of Supreme Court of the

United States is Invoked 9

Statement of the Case 9

Specification of Errors 15

Argument 16

Point I. The Utah Supreme Court deprived petitioner of a

jury trial in a case arising under the Federal Employers’

Liability Act contrary to controlling cases decided by the

Supreme Court of the United States 16

Point II. The Utah Supreme Court committed error in holding

that petitioner was not an employee of the respondent rail-

road company within the meaning of the Federal Employers’

Liability Act 18

Point III. The arrangement whereby respondent railroad

company has employees of the respondent express company

and not its own general employees perform necessary serv-

ices on its interstate trains and cars is a device in viola-

tion of 45 U.S.C.A., Section 55. 29

Point IV. The respondent express company at the time of

_ petitioner’s injuries was a common carrier by railroad in

- interstate commerce

INDEX—(Continued)

PAGE

Point V. The evidence introduced by petitioner furnished an

evidentiary basis to support a finding that the

or each of them, were negligent and that such negligence

proximately caused, in whole or in part, injuries to peti.

_tioner 34

Conclusion : 37

Appendix “A” __. 38

TABLE OF CASES CITED

Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S. Ct. 1062,

87 L. Ed. 1444 4,17

Cimorelli v. New York Cent. R. Co., 148 F. 2d 575 (6 C.C.A. 1945) __.7, 27, 28

Co: v. Southern Pacific 112 Utah 166, 185 P. 2d 963, reversed

"and vena ae iy wt 276, 98 L. Ed. 208 7

Coray V- Southern Pacific Co., 385 U.S. 520, 69 S. Ct. 275, 98 L. Ea —

Denton v. Yazoo & M. V. R. Co., 284 U.S. 305, 52 S. Ct. 141, 76 L. Fa.

Eglsaer v. Scandrett, 151 F. 2d 562__ 36

Ellis v. Union Pac. R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572. 4

v. Southern Pac. Co., 78 F. 651, affirmed 174 F. 2d 1022

(9 C.C.A.—1949) Supp. 7, 22, 23, 30, 37

Harrell v. Atlas Portland Cement Co., 250 Fed. 88 (8 C.C.A. 1918)... §=67

Halt \- PAiisdsihie & Reading Ry. Co., 252 U.S. 47 40 S. Ct.

64 L. Ed. 670 : a =

24, 26

Jones v. George F. Getty Oil Co., 92 F. 2d 255 (10 C.C.A. 1937) 7, 25

Jones v. New York Cent. R. Co., et al., 182 F. 2d 326 (6 C.CA.—1950).. 7

Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916.8, 16, 36

Linstead v. Chesapeake & O. Ry. Co., 276 U.S. 48 S. Ct. 241, 72

L. Ed. 463 oe i 3, 19, 23, 24, 26

McLamb v- E. I. DuPont DeNemours & Co., 79 F. 2d 966 (4 C.C.A.—

Pauly v. McCarthy, 330 U.S. 802, 67 S. Ct. 962, 91 L. Ed. 1261 3

Pauly - McCarthy, et al., 109 Utah 166 P. 2d 501, reversed and

remanded 380 U‘S. 802, 67 Sth. ote, BoE ee oh 7

Pennsylvania R. Co. v. Barlion, 172 F. 2d 710 (6 C.C.A.—1949) 27

a

INDEX—(Continued)

PAGE

Pennsylvania R. Co. v. Roth, 163 F. 2d 161 (6 C.C.A.—1947)................... 7,27

Philadelphia, B. & W. R. Co. v. Schubert, 224 U.S. 603, 82 S. Ct. 589,

56 L. Ed. 911 8, 30

Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 58 L. Ed. 480.3, 19

Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 64 S. Ct. 409,

88 L. Ed. 520 4,17, 36

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68 S. Ct. 444, 87

L. Ed. 610 4

Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S. Ct. 421, 89

L. Ed. 465 4, 36

Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S. Ct. 93, 65 L. Ed. 205... 32

Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413, 98 L. Ed. 497...........3, 16

Wilkerson v. McCarthy, 112 Utah 300, 187 P. 2d 188, reversed and

remanded 336 U.S. 53, 69 S. Ct. 413, 93 L. Ed. 497 7

STATUTES CITED

45 U.S.C.A., Section 55 2, 3, 5, 30, 38

45 U.S.C.A., Section 51 2, 3, 38

28 U.S.C.A., Section 1257 (3) 4,9

45 U.S.C.A., Sections 51 to 59

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No.

PETE MOLETON,

Petitioner,

vs.

UNION PACIFIC RAILROAD COMPANY, a corporation,

anp PACIFIC FRUIT EXPRESS COMPANY, a corvora-

TION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF UTAH AND

BRIEF IN SUPPORT THEREOF

To The Honorable Chief Justice and Associate Justices of

The Supreme Court of the United States:

The petition of PETE MOLETON respectfully shows:

Shumery and Short Statement of Matter Involved

The Supreme Court of Utah in a case arising under the

Federal Employers’ Liability Act denied petitioner his right

of trial by jury in a case where the evidence clearly demon-

2

strated that the petitioner was an employee of the defendant

Union Pacific Railroad Company within the protection of

the Federal Employers’ Liability Act; that the Union Pacific

Railroad Company had invented a device of using employees

of another company to perform necessary services on its

interstate trains with the purpose and intent to enable said

railroad company to exempt itself from liability created by

the Federal Employers’ Liability Aet in violation of 45

U.S.C.A., Section 55; that the Pacific Fruit Express Company

was a common carrier by railroad in interstate commerce,

subject to the liability created by the Federal Employers’

Liability Act, and that the defendants, and each of them,

were negligent in directing petitioner to turn off heaters in

a hurry and contrary to safety rules, and that such negligence

proximately caused in whole or in part injuries to petitioner,

Contrary to controlling decisions of this Court and to

the Federal Employers’ Liability Act, Sections 51 and 55,

Title 45, U.S.C.A., the trial court granted respondents’ motion

to dismiss plaintiff’s cause of action. The Utah Supreme

Court affirmed this decision on four grounds: (1) That as

matter of law plaintiff was not an employee of the respondent

Union Pacific Railroad Company and hence not within the

protection of the Federal Employers’ Liability Act. ( 2) That

as matter of law the respondent Union Pacific Railroad

Company had not used a device, the purpose and intent of

which was to enable that respondent to exempt itself from

liability created by the Federal Employers’ Liability Act.

(3) That the respondent Pacific Fruit Express Company was

not a common carrier by railroad in interstate commerce,

and (4) that the violation of the safety rule in directing

petitioner to service burners in cars without he!p was, as

3

matter of law, not a proximate cause of injuries to petitioner.

Petitioner contends that in reaching the result that petitioner

was not entitled to a jury trial, the trial court and the Utah

Supreme Court disregarded the controlling principles of law

pronounced by this Court in numerous cases.

In ruling as it did on the first ground the said courts

refused to apply the principles contained in Linstead v.

Chesapeake & O. Ry. Co., 276 U.S. 28, 48S. Ct. 241, 72 L. Ed.

453; Denton v. Yazoo & M. V. R. Co., 284 U.S. 305, 52 S. Ct.

141, 76 L. Ed. 310; Standard Oil Co. v. Anderson, 212 U.S.

215, 29 S. Ct. 252, 53 L. Ed. 480.

By its ruling on ground two above set forth the said trial

court and Utah Supreme Court disregarded and refused to

follow the express language of Section 55 of 45 U.S.C.A., and

Philadelphia, B. d W. R. Co. v. Schubert, 224 U.S. 603, 32

S. Ct. 589, 56 L. Ed. 911.

In sustaining the trial court on ground three the Utah Su-

preme Court refused to give effect to the provisions of the

Federal Employers’ Liability Act, 45 U.S.C.A., Section 51,

et seq.

In ruling as it did on ground four the Utah Supreme Court

disregarded and refused to follow many controlling decisions

of this Court. By such ruling the Utah Supreme Court denied

to petitioner his right of trial by jury not only on this ground

but also on the other three grounds indicated. Such ruling

is contrary to the following cases decided by this Court: Coray

v. Southern Pacific Co., 335 U.S. 520, 69 S. Ct. 275, 93 L. Ed.

208; Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413, 93 L.

Kd. 497; Pauly v. McCarthy, 330 U.S. 802, 67 S. Ct. 962, 91

L, Ed. 1261; Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740,

4

90 L, Ed. 916; Bailey v. Central Vermont Ry. Co., 319 U.S. 350,

63.S. Ct. 1062, 87 L. Ed. 1444; Tiller v. Atlantic Coast Line

R. Co., 318 U.S, 54, 63 S. Ct. 444, 87 L. Ed. 610; Tiller v.

Atlantic Coast Line R. Co., 323 U.S. 574, 65 S. Ct. 421, 89 L.

Ed. 465; Tennant v. Peoria & Pekin Union R. Co., 321 U.S.

29, 64'S. Ct. 409, 88 L. Ed. 520; Ellis v. Union Pac. R. Co. 329

U.S, 649, 67 S. Ct. 598, 91 L. Ed. 572.

In the cases above cited this Court has held that questions

such as those decided here by the Utah courts as matters of

law are for the jury, and that the refusal of trial courts to

submit such issues constitutes an abdication of the court’s

sworn duty to guard and protect the right of litigants suing

under the Federal Employers’ Liability Act to jury trial.

To deprive railroad workers of the benefits of this right takes

from them a goodly portion of the relief afforded by Congress.

Jurisdictional Statement

(a) Jurisdiction to grant this petition is sustained by

Section 1257 (3), Title 28, U.S.C.A.

(b) The statutes of the United States applied by the Su-

preme Court of Utah are 45 U.S.C.A., Sections 51 to 59, known

as the Federal Employers’ Liability Act, material portions

thereof being set forth in the appendix hereto.

(c) The judgment of the Supreme Court of Utah was

rendered on June 29, 1950. It is set forth at R. 118-125. It is

not yei reported in the official Utah Reports but appears at

219 P. 24 1080. The petition for rehearing was denied Septem-

ber 28, 1950 (R. 126). This Petition for Certiorari was filed

December 27, 1950.

(iibiisienre nanan

Questions Presented

The Petitioner at the time of his injury was in the general

employ of the respondent Pacific Fruit Express Company

but was engaged in performing the work of the respondent

Union Pacific Railroad Company under its direction in servic-

ing cars in a live train being transported by respondent Union

Pacific Railroad Company as a common carrier by rail. This

was the only work performed by petitioner and he only worked

on respondent Union Pacific Railroad Company’s trains and

no others. Negligence and proximate cause were present in

that respondents failed to furnish petitioner a safe place to

work in that poisonous gas was present in the cars and peti-

tioner was directed to work alone and in a hurry to permit

respondent Union Pacific Railroad Company’s train to leave

its yards at Laramie, Wyoming.

The Utah courts have denied to petitioner a jury trial and

petitioner presents the following as questions to be decided by

this Court: :

1. Was petitioner an employee of respondent Union Paci-

fic Railroad Company within the Federal Employers’ Lia-

bility Act?

2. Can respondent Union Pacific Railroad Company by

the device of using employees of a corporation owned by it

and another common carrier to do its work avoid its liability

under the Federal Employers’ Liability Act to such em-

ployees in violation of 45 U.S.C.A., Section 55%

3. Was the respondent Pacific Fruit Express Company

a common carrier by railroad within the meaning of the

Federal Employers’ Liability Act?

6

4, Were the respondents, or either of them, negligent

in failing to furnish petitioner a safe place to work and di-

recting him to work alone and in a hurry and was such negli-

gence a proximate cause of petitioner’s injuries?

The over-all important question presented here is whether,

contrary to the intent and purpose of Congress in enacting

the Federal Employers’ Liability Act and contrary to con-

trolling decisions of this Court, petitioner may be denied his

right to a jury trial on the questions presented here.

Reasons Relied On for Allowance of Writ

The Supreme Court of Utah has decided Federal questions

of substance and importance in ways not in accord with con-

trolling decisions of this Court. Such Federal questions

involve erroneous constructions and interpretations of the

Federal Employers’ Liability Act. The Utah Court erron-

eously answered the questions presented here and set forth

in the preceding part of this Petition. In doing so the Utah

Court affirmed a dismissal of petitioner’s action brought

under the Federal Employers’ Liability Act where the evi-

dence was clearly sufficient to supply an evidentiary basis

for petitioner’s cause. In refusing to permit petitioner’s cause

to be decided by a jury the Utah court has usurped the func-

tions of the jury contrary to repeated admonitions of this

Court and has wrongfully deprived petitioner of his right to

a jury trial guaranteed by the United States Constitution.

It is essential that a writ be granted in order to determine

important questions relating to the construction, interpreta-

tion and application of the Federal Employers’ Liability

Act. Of grave importance is the question of whether respond-

ents have effectively shielded and insulated themselves

7

against liability to employees performing their work as com-

mon carriers by rail in interstate commerce by the device of

separate corporations.

The Federal Circuit Courts have decided closely related

questions in conflicting ways. These cases have caused and

are causing confusion in the interpretation of the Federal

Employers’ Liability Act in determining what persons are

entitled to the remedies afforded by that Act and in determin-

ing to what extent railroads may go in creating devices to

shield and insulate themselves from liability to persons doing

their work. See Jones v. George F. Getty Oil Co. 92 F. 2d

255 (10 C.C.A. — 1937) ; McLamb v. E. I. DuPont De Nemours

& Co., 79 F. 2d 966 (4 C.C.A. — 1935) ; Harrell v. Atlas Port-

land Cement Co., 250 Fed. 83 (8 C.C.A. — 1918) ; Cimorelli

v. New York Cent. R. Co., 148 F. 2d 575 (6 C.C.A. — 1945); |

Pennsylvania R. Co. v. Roth, 163 F. 2d 161 (6 C.C.A. — 1947) ;

Pennsylvania R. Co. v. Barlion, 172 F. 2d 710 (6 C.C.A. —

1949); Gaulden v. Southern Pac. Co., 78 F. Supp. 651, af-

firmed 174 F. 2d 1022 (9 C.C.A. — 1949) ; Jones v. New York

Cent. R. Co., et al., 182 F. 2d 326 (6 C.C.A. — 1950).

A further reason for allowance of this Writ is to determine

whether the Utah Supreme Court will be permitted to con-

tinue to deny jury trials to employees under the Federal Em-

ployers’ Liability Act contrary to specific admor'tions by

this Court to the Utah Court. As examples see Pauly v. Mc-

Carthy, et al., 109 Utah 398, 166 P. 2d 501, reversed and re-

manded 330 U.S. 802, 67 S. Ct. 962, 91 L. Ed. 1261; Coray v.

Southern Pacific Co., 112 Utah 166, 185 P. 2d 963, reversed

and remanded 335 U.S. 520, 69 S. Ct. 275, 93 L. Ed. 208;

Wilkerson v. McCarthy, 112 Utah 300, 187 P. 2d 188, reversed

and remanded 336 U.S. 53, 69 S. Ct. 413, 93 L. Ed. 497.

8

Prayer

WHEREFORE, YOUR PETITIONER PRAYS that a

Writ of Certiorari be issued out of and under the seal of this

Court directed to the Supreme Court of the State of Utah

commanding said Court to certify and send to this Court a

transcript of the record in the case entitled Pete Moleton,

Plaintiff and Appellant, v. Union Pacific Railroad Company,

a corporation, and Pacific Fruit Express Company, a corpora-

tion, Defendants and Respondents, No. 7379, including also

the proceedings in said Supreme Court to the end that said

cause may be reviewed and determined by this Court and the

judgment of the Utah Supreme Court reversed.

PETE MOLETON, Petitioner,

By Carvin W. Raw1iryas,

ParneLL Buacg,

Attorneys for Petitioner,

530 Judge Building,

Salt Lake City, Utah.

9

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

Opinion of Courts Below

The trial court on the 23rd day of March, 1949, granted

defendant’s motion to dismiss petitioner’s cause of action

(R. 26), and judgment was entered thereon April 23, 1949

(R.-27). The opinion of the Supreme Court of Utah affirm-

ing said judgment is set forth at R. 118-125. It is not yet

officially reported in the Utah reports but appears at 219

P, 2d 1080.

Grounds on Which Jurisdiction of Supreme Court of

The United States is Invoked

The judgment of the Supreme Court of Utah was rendered

June 29, 1950 (R. 125). Petition for Rehearing was denied on

September 28, 1950 (R. 126). Petition for Writ of Certiorari

was filed on December 27, 1950. The judgment of the Su-

preme Court of Utah is based on its application of the United

States statutes, commonly called the Federal Employers’

Liability Act, 45 U.9.C.A., Sections 51 to 59. The jurisdiction

of the Supreme Court of the United States is invoked under

Section 1257 (3), Title 28, U.S.C.A.

Statement of the Case

Petitioner, a general employee of the respondent Pacific

Fruit Express Company, hereinafter called express company,

was injured on November 22, 1945, at Laramie, Wyoming,

10

while engaged in the performance of the work of respuxdent

Union Pacific Railroad Company, hereinafter called the rail-

road company.

Petitioner brought action against both the express com-

pany and the railroad company in the District of Salt Lake

County, Utah. Petitioner’s complaint contained three causes

of action, each stating a distinct theory upon which petitioner

claimed the right to recover. The first cause was based on

the Federal Employers’ Liability Act. The second was

against the express company alone and was based upon two

~ counts, ie., (1) that the express company was operating a

railroad within the State of Wyoming (which respondents

denied), and (2) that the express company had failed to com-

ply with Wyoming statutes relating to workmen’s compensa-

tion, and hence by the provisions of those statutes he could

bring a common law action (respondents successfully con-

tended that the express company’s business was interstate

in character and therefore not subject to those statutes). The

third cause was against ibe railroad company only on the

theory that petitioner was injured by negligence of the rail-

road company and there was no employer-employee relation

between petitioner and the railroad company (R. 1-15).

After petitioner had introduced his evidence and rested,

respondents moved for a dismissal of petitioner’s cause (R.

106-110) which was granted (R. 111). The effect of this ruling

is that in this day and age petitioner is not afforded any type

of workmen’s compensation.

Judgment was thereupon entered by the court against peti-

tioner (R. 27) without benefit of jury trial and the Utah

Supreme Court affirmed (R. 125).

11

Petitioner at the time he was injured was working in the

yards of the railroad company at Laramie, Wyoming. The

railroad company owns all of the tracks in this yard and it

is the only railroad which transports cars in or out of these

yards (R. 83). Laramie is a terminal, All engines pulling

trains into this yard are changed there (R. 97). Switching

operations on the trains are there conducted (R. 97) and

perishable produce and commodities are serviced by icing or

regulating heaters and ventilators (R. 84).

Petitioner’s duties required that he perform this latter

servicing work (R. 30). He had been hired by the express

company and was paid by that company (R. 64). He could

be fired by that company (R. 65). Petitioner had worked for

the express company for twenty years and at all times his

duties had been to take care of the inspection and servicing of

refrigerator cars. In the summertime he iced the cars and

in the winter took care of the heaters (R. 31). However,

his instructions or directions as to what work he was to do

came from the railroad company (R. 94, See Exhibit oe is

R. 115, 116). It was stipulated that a copy of this Exhibit ‘*5”’

was furnished to the express company yard clerk upon the

arrival there of the train here involved (R. 95, 96).

The directions and instructions to all persons in the general

employment of both respondents were made in the same way.

The conductor on railroad company’s trains proceeding to-

wards Laramie would have waybills on the cars and freight

contained in the train. From these he would make up a switch

list (Exhibit ‘‘5’’, R. 94, 95). In this switch list he would place

the number of each, the name of the owner thereof, the class

of freight, the contents of each car and its destination. The

instructions therein also included the temperature at which

12

the cars containing perishable commodities were to be kept

(R. 37, 87). This switch list was then left at a telegraph station

of the railroad company and the contents relayed to the rail-

‘ road company yard office (R. 94). Copies were there made

by the railroad company and distributed to all persons who

were to work on the train in the Laramie yard in order that

they would be ready to go to work as soon as the train arrived

(R. 94). In the case at bar a copy of Exhibit ‘‘5’’ was given

not only to persons in the general employ of the railroad

company but also to express company general employees (R.

95). The instructions were thus relayed to the express com-

pany foreman and he in turn relayed them to the men who

were actually to do the servicing (R. 88). The express com-

pany had nothing to do with the time of arrival or departure

of trains, the tracks on which they were to be placed, the

amount of work to be done, or what work was to be done (R.

96).

One of the safety rules promulgated and posted in the yards

provided (See Exhibit ‘‘4’’, Rule 19 d., R. 114):

‘*When inspecting cars or lighting heaters at regular

inspection points, not less than two employees must

work together for each other’s protection.”’

By stipulation it appears that the express company was

a Utah corporation, organized in 1906, and with the exception

of a relatively small number of shares its stock was owned in

equal amounts by respondent, Union Pacific Railroad Com-

pany, and the Southern Pacific Company. Directors of these

companies were not interlocking. The express company

serviced cars for four railroads. However, at Laramie the

13

only work done by express company employees was in serv-

icing trains of the respondent railroad company and no other

company (R. 105, 106).

On the day that petitioner was injured he arrived at work

at 8:00 in the morning. Shortly before noon a westbound

train consisting of 50 or 60 cars pulled into the yards at

Laramie on Track 10 (R. 46). Just before the train arrived ~

petitioner and the foreman were the only men on duty. The

foreman told petitioner to work on this train and that there

were three refrigerator cars in which petitioner was to regu-

late the heaters by shutting them off (R. 47). Because peti-

tioner would have to walk a half mile to the point where

he was to perform his duties he started for Track 10 before

the train arrived (R. 46). The foreman told petioner that

the train was only supposed to stay five or six minutes in

the yard and that he was only to open one of the plugs om

each car (R. 79). Exhibits ‘‘1’’ and ‘‘3’’ (R, 112, 113) are pic-

tures of the type of car upon which petitioner was to work.

These ears are about 15 or 16 feet from the top of the rail to the

top of the car (R. 31). From the floor to the ceiling is between

8 and 10 feet. The cars are 10 feet wide (R.31). The cars

have an ice bunker on each end about 3 feet to 314 feet wide.

The floors of these bunkers are made of tin or steel and the

bunkers are separated from the rest of the car by either wood

or steel partitions (R. 32, 33). To get into these bunkers the men

climb a ladder on the side of the car to its top and open the

door or plug of the bunkers. They then climb down the ladder

on the inside of the bunkers to the floor where the heaters

are located (R: 42). When petitioner arrived at the first

car he climbed to the top and opened the plug. He then pro-

ceeded to the other two cars, opening the plug on each. He

14

then returned to the first car on which he had opened the

plug. Petitioner estimated that it took about four minutes to

perform the foregoing duties (R. 76), He climbed down into

the bunker of the first two cars and shut off the heaters.

He then entered the bunker of the third car. He estimated

that the plug on this car had been open between ten and twelve

minutes (R. 77). After he had shut off the heater he re-

turned to the top of the car, put the plug in place, and he re-

members nothing after that until he came to lying on the

ground near the car from which he had fallen (R. 51, 63).

These burning heaters in the bunkers created and caused

gas fumes within the bunkers (R. 85). It was stipulated by

the parties that the gas created was carbon monoxide gas

(R. 85). Many of the employees who worked on these cars

suffered headaches and had a ‘“‘bad feeling’’ after working

on too many (R. 85). A person is affected by these gas fumes

after he has been in the car and has come out into the fresh

air. This gas does not have an odor and it cannot be seen

(R. 86, 87).

The method used by petitioner in shutting off the heaters

was not the safe way to perform this work. Plugs on both

ends of the car should have been opened in order that there

could be ventilation through the car. Petitioner did not use

this safe way because the train was in a hurry and the fore-

man instructed him to open only one of the plugs on each

ear (R. 79). Petitioner observed that the rear-end plugs on

at least two of the cars were sealed and he could not break

the seals without authority (R. 89). This authority he did

not have (R. 79).

15

It was stipulated that the car from which petitioner fell

was F.D.E.X. 9084 (R. 55). This car appears to have been the

second car from the head end of the train (R. 101). It was a

ear of the Fruit Growers’ Express and not one belonging to

the fespondent express company (R. 33, 88, 112).

From this fall petitioner suffered severe injuries, the de-

tails of which have been eliminated from the printed record

in this case for the reason that such testimony has no bearing

upon the questions raised here.

Specification of Errors

The Supreme Court of Utah committed prejudicial and

reversible error in affirming the trial court’s judgment on

the motion to dismiss petitioner’s cause of action for the

following reasons:

1. The Utah Supreme Court deprived petitioner of a

jury trial in a case arising under the Federal Employers’

Liability Act contrary to controlling cases decided by the Su-

preme Court of the United States.

_ 2. The Utah Supreme Court committed error in holding

that petitioner was not an employee of the respondent railroad

company within the meaning of the Federal Employers’ Lia-

bility Act.

3. The arrangement whereby respondent railroad com-

pany has employees of the respondent express company and

not its own general employees perform necessary services on

its interstate trains and cars is a device in violation of 45

U.S.C.A., Section 55.

16

4. The respondent express company at the time of peti-

tioner’s injuries was a common carrier by railroad in inter-

state commerce.

5. The evidence introduced by petitioner furnished an

evidentiary basis to support a finding that the respondents,

or either of theni, were negligent and that such negligence

proximately caused, in whole or in part, injuries to petitioner.

ARGUMENT

Point I.

The Utah Supreme Court deprived petitioner of a

jury trial in a case arising under the Federal Employers’

Liability Act contrary to controlling cases decided by the

Supreme Court of the United States.

Under recent decisions of this Court it has become firmly

established law that the jury is the tribunal selected by Con-

gress under the Federal Employers’ Liability Act to decide

the factual issues presented in cases brought under that Act.

This Court in the case of Wilkerson v. McCarthy, 336 U.S.

53, 69 S. Ct. 413, 93 L. Ed. 497, has aptly described the philoso-

phy with which the Supreme Court of Utah has again ap-

proached the construction of this federal act. The Utah

Supreme Court’s interpretation of this Act is permeated ‘‘by

a hostile philosophy.’’

In describing the proper approach in deciding a case under

this Act this Court in Lavender v. Kurn, 327 U.S. 645, 66 S. Ct.

740, 744, 90 L. Ed. 916, stated:

‘“*Tt is no answer to say that the jury’s verdic: in-

volved speculation and conjecture. Whenever fac‘s are

li

in dispute or the evidence is such that fair-minded men

may draw different inferences, a measure of specuia-

tion and conjecture is required on the part of those

whose duty it is to settle the dispute by choosing what

seems to them to be the most reasonable inference. Only

when there is a complete absence of probative facts to

support the conclusion reached does a reversible error

appear. But where, as here, there is an evidentiary

basis for the jury’s verdict, the jury is free to discard

or disbelieve whatever facts are inconsistent with its

conclusion. And the appellate court’s function is ex-

hausted when that evidentiary basis becomes apparent,

it being immaterial that the court might draw a con-

trary inference or feel that another conclusion is more

reasonable.’’

In Tenant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 64

S. Ct. 409, 412, 88 L. Ed. 520, this Court stated:

“It is not the function of a court to search the record

for conflicting circumstantial evidence in order to

take the case away from the jury on a theory that the

proof gives equal support to inconsistent and uncertain

inferences. The focal point of judicial review is the

reasonableness of the particular inference or conclu-

sion, drawn by the jury. It is the jury, not the court,

which is the fact-finding body. It weighs the contra-

dictory evidence and inferences, judges the credibility

of the witnesses, receives expert instructions, and

draws the ultimate conclusion as to the facts. The

very essence of its function is to select from among

conflicting inferences and conclusions that which it

| considers most reasonable.’’

In Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S. Ct.

1062, 1064, 87 L. Ed. 1444, this Court stated:

‘The right to trial by jury is ‘a basic and funda-

mental feature of our system of federal jurisprudence.’

Jacob v. New York City, 315 U.S. 752, 62 S. Ct. 854,

86 L. Ed. 1166. It is part and parcel of the remedy af-

18

forded railroad workers under the Employers’ Lia-

bility Act. Reasonable care and cause and effect are

as elusive here as in other fields. But the jury has

been chosen as the appropriate tribunal to apply those

standards to the facts of these personal injuries. That

method of determining the liability of the carriers and

of placing on them the cost of these industrial accidents

may be crude, archaic, and expensive as compared with

the more modern systems of workmen’s compensa-

tion. But however inefficient and backward it may be,

it is the system which Congress has provided. To de-

prive ihese workers of the benefit of a jury trial in

close or doubtful cases is to take away a goodly por-

tion of the relief which Congress has afforded them.”’

*

‘** * * all these were facts and circumstances for

the jury to weigh and appraise in determining whether

respondent in furnishing Bailey with that particular

place in which to perform the task was negligent. The

debatable quality of that issue, the fact that fair-

minded men might reach different conclusions, em-

phasize the appropriateness of leaving the question

to the jury. The jury is the tribunal under our legal

system to decide that type of issue, * * * as well as

issues involving controverted evidence. * * * To with-

draw such a question from the jury is to usurp its

functions.’’

Other cases of similar import are cited on page ...... of the

petition for Writ of Certiorari.

Point II.

The Utah Supreme Court committed error in holding

that petitioner was not an employee of the respondent

railroad company within the meaning of the Federal Em-

ployers’ Liability Act.

The important question here is whose work was being done

by the petitioner at the time of his injuries. This Court has

19

held that this is the factor that determines the existence of

the relationship of employer-employee. In Standard Oil Co.

v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 254, 53 L. Ed. 480, this

Court stated:

‘** * * To determine whether a given case falls with-

in the one class or the other we must inquire whose

is the work being performed, — a question which is

usually answered by ascertaining who has the power to

control and direct the servants in the performance of

their work. Here we must carefully distinguish be-

tween authoritative direction and control, and mere

suggestion as to details or the necessary cooperation,

where the work furnished is part of a larger under-

taking.’’

This quotation was quoted with approval and followed in

Linstead v. Chesapeake & O. Ry. Co., 276 U.S. 28, 48 S. Ct. 241,

242, 72 L. Ed. 453, a Federal Employers’ Liability Act case.

In the case at bar who had authoritative direction and con-

trol of petitioner’s work as distinguished from suggestion as

to details?

The railroad company was the one transporting the freight,

perishable and otherwise, pursuant to contracts with shippers.

The waybills were in the possession of the railroad company

through its conductor. The requirement was that perishable

commodities be handled and serviced in accordance with ship-

ping instructions of the railroad company. These instructions

were forwarded to the yard office of the railroad company

prior to the arrival of the train. These instructions (Exhibit

5) were given to the general employers of the express com-

20

pany who were to service the refrigerator cars in accordance

therewith. That exhibit is designated:

“SWITCH LIST AND

SERVICE INSTRUCTIONS

PERISHABLE FREIGHT”’

The word ‘‘Instructions’’ is a commonly used word. It

means that which is given by way of direction or command.

The balance of Exhibit ‘‘5’’ confirms this meaning. In the

upper right-hand corner it is addressed ‘‘T'0 Agent or In-

spector.’’ It is not addressed to the express company but to

the person who is actually to do the work. It then states:

‘*Carload Perishable Freight must be serviced in ac-

cordance with waybill instructions shown below.”’

This is a direction and a command. The use of the word

‘‘must’’ is significant and is addressed to the employees who

are to service the cars on the railroad company’s trains. Fur-

ther direction and command is given to such employees by the

following:

‘*Position of ventilators is to be recorded under

‘Arrival’ and ‘Departure’ columns, show ‘O’ for Open,

‘C’ for Closed.’’

Turning to the second page of Exhibit ‘‘5’’ (R. 113) and to

the 2nd, 6th and 7th cars, we find the following:

‘*47 CPS Htr 35° above

47 — — 35° —

60 SPS Lt Htrs 15 Ext 20°”’

These instructions were interpreted to mean that under

the conditions at Laramie the heaters in these cars were to

be extinguished, and that is exactly what petitioner was doing

when injured.

21

This same Exhibit ‘‘5’’ was given to general employees of

the railroad company instructing them in the duties they were

to perform on the railroad company’s interstate train.

As suggested by the foregoing quotation the work being

performed by petitioner was a part of a. larger undertaking,

ie., that of preparing the railroad’s train for its further inter-

state journey for the transportation of freight contracted to

be transported by the railroad company and not by the ex-

press company. Some employees changed engines, others per-

formed the necessary switching operations, all in furtherance

of said larger undertaking of which petitioner’s work was

only a small part.

The necessity of speed in the performance of petitioner’s

work was dictated by the railroad company. Where in the

yards petitioner would perform his duty was controlled by

the railroad company. It directed on what cars he would work,

what work he would do and when he would do it.

This evidence and the inferences therefrom demonstrate

that authoritative direction and control of petitioner’s work

rested with the railroad company, and its work was that which

petitioner was performing when injured.

The Utah Supreme Court concluded that petitioner was

not doing railroad company’s work and that company did not

control or direct his work because Exhibit ‘‘5’’ only gave in-

formation to the express company. That exhibit is addressed

to the person who is to do the work, not the express company.

The language therein and above quoted is the form of direc-

tion. This document was also given to railroad general em-

ployees. Did it merely give to them information, or was it a

22

direction controlling them in the performance of their duties?

We submit that the Utah Court was clearly wrong in its inter-

pretation of this document.

The Utah Court relied upon Gaulden v. Southern Pacific

Co., 78 F. Supp. 651, 656, (Affirmed 174 F. 2d 1022, 9 C.C.A.—

1949). In that case plaintiff brought suit under the Federal

Employers’ Liability Act against the Southern Pacific Com-

pany and the Pacific Fruit Express Company. He was em-

ployed as an iceman in the ice yard and plant owned and

operated by the express company at Bakersfield, California.

Service was provided from that plant to the defendant South-

ern Pacific Company and to two other common carriers.

Plaintiff and fellow employees were engaged in unloading

ice from a refrigeration car belonging to the express com-

pany. While he was aiding in moving an empty car from the

loading platform by means of a cable and winch he was in-

jured. It could not be determined whether this car or the ice

unloaded would be used by the Southern Pacific Company or

the other two carriers. The court expressly pointed out that

there was nothing to indi¢dte that the activities pursued by

plaintiff related to the work of the Southern Pacific Com-

pany and stated:

«<* * * Tt (the express company) also served the

Atchison, Topeka and Santa Fe Ry. and the Sunset

Railway. The eventual destination of the ice which

plaintiff was helping to unload at the time of his in-

jury was neither known or foreseen at the time. Thus

nothing in the record indicates that the plaintiff was

injured while employed in the service of his master’s

master.”’

In the case at bar petitioner was not performing services

in the express company’s ice yards or ice house. He was per-

23

forming services in the yards and on the tracks and cars of

the respondent railroad company. The respondent railroad

company was the only one involved and petitioner’s services

were in furtherance of the respondent railroad company’s

undertaking to transport freight. The Gaulden case is clearly

distinguishable.

We submit that the case of Linstead v. Chesapeake ¢ O.

Ry. Co., supra, is controlling here. The problem there was

the same as in the problem in the case at bar, that is, whether

the workman involved was an employee of the defendant with-

in the meaning of the Federal Employers’ Liability Act. Plain-

tiff was in the general employment of another railroad com-

pany and not the defendant. A judgment for plaintiff was

upheld after it had been reversed by the Circuit Court.

Iu that case plaintiff’s decedent was employed as a freight

conductor by a railroad known as the “‘Big Four.’’ He and

the other members of his crew were paid by that company

and they were not subject to discharge by the defendant com-

pany. The Big Four and the defendant were connecting car-

riers. The tracks of the Big Four were west of Cincinnati

and the defendant’s tracks were east. On interchange traffic

the Big Four would send an engine and its crew to the de-

fendant’s yard and transport freight cars over defendant’s

tracks to the tracks of the Big Four. The Big Four trains

while on defendant’s tracks were under the supervision of

defendant’s trainmaster, and the crew observed the signals

of defendant’s switchtender and complied with the defend-

ant’s operating rules. While on such tracks and while trans-

porting cars a passenger train of the defendant company col-

lided with the rear end of the freight train, killing plaintiff’s

decedent. The trial court instructed the jury as matter of law

24

that said decedent was in the employ of the defendant com-

pany within the meaning of the Federal Employers’ Liability

‘Act. The court prefaced its discussion of the problem by

stating at page 242:

‘** * The legal consequences of the relation between

one in the general service of another who is in the special

service of a third person are set forth in the case of

Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 S.

Ct. 252, 53 L. Ed. 480.”’

The court then quoted with approval the quotation from

the Standard Oil Company case quoted supra. The court also

stated at page 243:

‘*Now the work which was being done here by Linstead

and his crew was the work of the Chesapeake & Ohio

Railway. It was the transportation of cars, loaded and

empty, on the Chesapeake & Ohio Railway between

Stevens and Cincinnati. It was work for which the

Chesapeake & Ohio road was paid according to the

tariff approved by the Interstate Commerce Commis-

sion; it was work done under the rules adopted by the

Chesapeake & Ohio Railway Company; and it was done

under the immediate supervision and direction of the

trainmaster in charge of the trains running from

Stevens to Cincinnati, and that trainmaster was a

superior employee of the Chesapeake & Ohio road.

We do not think that the fact that the Big Four road

paid the wages of Linstead and his crew, or that they

could only be discharged or suspended by the Big Four,

prevented their being the servants of the Chesapeake

& eg Company for the performance of this particular

jo ?

The strength of this case as authority in favor of the peti-

tioner in the case at bar is emphasized by consideration of

the case of Hull v. Philadelphia & Reading Ry. Co., 252 US.

475, 40 S. Ct. 358, 64 L. Ed. 670. In that case the deceased was

25

in the employ of the Western Maryland Railroad Company

as a brakeman. At the time he was killed he was a member

of a crew engaged in transporting cars over the tracks of the

defendant company, and he was subject to the operating rules

of the defendant. The court held he was not an employee of

the defendant. The court based its opinion upon the fact that

it was the work of the general employer that was being ac-

complished by deceased at the time and that control as to

details of work was not decisive. The court laid emphasis

upon the answer to the question ‘‘whose work was being

done.”’

In the case of Jones v. George F. Getty Oil Co., 92 F. 2d

255 (10 C.C.A. — 1937) is found an excellent discussion of

the foregoing cases as well as other federal cases concerning

the problem presented in this case. In that case the court

held that the plaintiff was an employee of the defendant,

which company was not the general employer of plaintiff.

After discussing the foregoing cases the court concluded at

263 :

“The ultimate test is: Whose is the work being

done? Standard Oil Company v. Anderson, supra. In

determirfing whose work is being done, the question of

the power to control the work is of great importance

(Standard Oil Company v. Anderson, supra), but is

not conclusive (Linstead v. C. & O. R. Co.; Hull v.

Philadelphia & R. R. Co. supra). The identity of the

person who, in fact, directs the details of the work

and gives the immediate instructions to the workmen

is of comparatively small importance the power of

control referred to being the power to control the

undertaking as a whole. McLamb v. DuPont Company,

supra; Singer Mfg. Co. v. Rahr, supra.’’

26

In applying the Linstead authority the court stated at page

260:

‘«* * * There, as here, the injured person was under

the general employ of another and was merely tempo-

rarily doing the work of the defendant. There, as here,

the work so being done was primarily for the purpose

of benefitting the general employer. There, as here,

no payment to the general employer was made or con-

templated for the doing of the work in question by

its employees, and no payment of wages to the loaned

employee was made or contemplated by the company

whose work he was doing. There, as here, however,

the work in which the employee was engaged at the

time of the injury was a part of the defendaht’s regular

business. The general power of control and super-

vision of the work was in the defendant, although the

injured employee was under the immediate supervi-

~sion of the general employer and was only subject

to being discharged by his general employer.’’

The court also compared the Linstead and Hull cases, supra,

and at page 261 concluded as follows:

‘«* * * The determining factor, therefore, is not the

question of control over the employee, for that was the

same in both cases, but as stated in Standard Oil Com-

pany v. Anderson, supra, it is a question of whose

work was being done. In the Hull case the plaintiff’s

intestate was operating a train of his general em-

ployer, pursuant to his general employer’s obligations

with its shippers. It was, therefore, his general em-

ployer’s work whiich was being done and he was held

to remain that company’s employee. In the Linstead

ease the plaintiff’s interstate, a general employee of

the Big Four Railroad, was carrying on an operation

which the C. & O. Company had undertaken to perform.

The work he was performing was therefore the work

of the C. & O. and the court held that in so doing he

became that company’s special employee.”’

27

In Denton v. Yazoo & M. V. R. Co., 284 US, 305, 52 S. Ct.

141, 76 L, Ed. 310, this Court, in a case similar to the one at

bar, held that the employee was an employee not of the one

hiring him and paying his wages but of the United States

Government for whom he was performing services at the time

of his negligence.

Three recent cases decided by the Sixth Circuit Court of

Appeals unhold the contentions of petitioner here and demon-

strate the error committed by the Utah Supreme Court in

holding as matter of law that petitioner could not be con-

sidered an employee of the defendant railroad company.

These cases are: Cimorelli v. New York Cent. R. Co., 148 F. 2d

575; Pennsylvania R. Co. v. Roth, 163 F, 2d 161; Pennsylvania

R. Co. v. Barlion, 172 F. 2d 710. Each of these cases was

brought under the Federal Employers’ Liability Act. In each

case the injured person had been employed by a contractor

who was to perform certain unloading and reloading services

on the cars of the defendant railroad companies. In each

instance the railroad company had entered into a contract

with the United States Government, agreeing to maintain

and operate in its yards a temporary storage place for war

material. The unloading and reloading was hired out by the

railroad company to contractors. In each case the plaintiff

was employed by the contractor and was injured while per-

forming the work agreed to be done by the contractor. In

each case the court held that since it was the work of the

defendant railroad company which was being performed that

the plaintiffs could maintain their actions under the Federal

Employers’ Liability Act. The language and the opinion

of each of these authorities support petitioner here. We

will quote only from the conclusion given in the Barlion case,

ce

the latest of the three cases. In referring to the two previous

cases, at page 712, the court pointed out the facts which were

of controlling importance, and referving in particular to the

Cimorelli case stated:

«<* * * that the court, in its over-all estimate of the

controlling facts in the latter case, pointed out that the

employment of the contractor was general, that the

number of cars to be unloaded or reloaded depended

upon the demands of the business, that the work was

to be done when, where, and in the proportions as the

needs of the railroad company might justify, that the

railroad company controlled the place where the work

was to be performed and in which there was a frequent

movement of cars, and that no part of the premises

was surrendered to the contractor. It was further said

that the whole project involved many interdependent

details, the control or any one of which could not be

surrendered without disorganization of the whole, and

that, from the nature of the work, its performance

could not be committed exclusively by the railroad

to the contractor engaged in doing the unloading and

reloading work and rendering the other services in

question. The railroad had this right of control in

the instant case to the same extent as it did in the

Roth case; and it is the right of control, rather than

its exercise, that determines whether or not a contrac-

tor is an independent contractor. The Roth case, there-

fore, cannot be distinguished on the ground that the

control of the railroad company was there exercised,

whereas it was not exercised in the present case.’’

In the case at bar the number of cars to be inspected and

heaters regulated depended upon the demands of the railroad

company’s business; the work to be done by plaintiff and

other express company employees was to be done where, when

and in the proportions as the needs of the railroad company

might justify. The railroad company controlled the place

where the work was to be performed, and no part of these

premises had been surrendered io the express company. In

the case at bar the whole project was readying trains in the

yards of the railroad company for further interstate move-

ment and involved many independent details such as the

switching and servicing of the cars. The speed with which

the work had to be done in order that the trains could be put

into movement was dictated by the railroad company. The

railroad company in the case at bar not only had the right to

supervise the work being done by petitioner but actually

directed petitioner, as evidenced by Exhibit ‘‘5’’. These

facts unerringly point to the proposition that petitioner at

the time he was injured was a special employee of the defend-

ant under the Federal Employers’ Liability Act and was per-

forming the work of the respondent railroad company.

We submit that the Supreme Court of Utah committed

grievous and prejudicial error in ruling contrary to the fore-

going controlling authorities from this Court and other Fed-

eral Courts.

Point III.

The arrangement whereby respondent railroad com-

lation of 45 U.S.C.A., Section 55.

The Supreme Court of the State of Utah committed error

in holding that the arrangement whereby the respondent rail-

road company had its work performed by employees of the

30

express company was not a device in violation of 45 U.S.C.A.,

Section 55. That section of the Federal Employers’ Liability

Act, in so far as material here, provides:

‘‘Any contract, rule, regulation, or device whatso-

ever, the purpose or intent of which shall be to enable

any common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void.’’

The only reason given by the Utah Court for this result

was the one advanced in Gaulden v. Southern Pac. Co., 78 F.

Supp. 651, wherein tha: District Court held the creation of the

express company occurred before the Federal Employers’

Liability Act was enacted and, hence, there could be no basis

for a charge that the creation df the Pacific Fruit Express

Company violated said section. It is to be noted that the stat-

ute is not leveled against the creation of such a device but it

outlaws such device regardless of when created. This reason

has been eliminated by this Court in Philadelphia B. & W. R.

Co. v. Schubert, 224 U.S. 603, 32 S. Ct. 589, at 592, 56 L. Ed.

911, wherein this Court stated: |

««* * * that the provisions of Sec. 5 (this section)

were intended to apply as well to existing as to future

contracts and regulations of the described character

cannot be doubted. The words, ‘the purpose or intent

of which shall be to enable any common carrier to ex-

empt itself from any liability created by this act,’ do

not refer simply to an actual intent of the parties to

circumvent the statute. The ‘purpose or intent’ of the

contracts and regulations, within the meaning of the

section, is to be found in their necessary operation and

effect in defeating the liability which the statute was

designed to enforce. Only by such general application

could the statute accomplish the object which it is plain

that Congress had in view. |

a

31

“‘Nor can the further contention be sustained that,

if so construed, the section is invalid. The power of

Congress, in its regulation of interstate commerce.

and of commerce in the District of Columbia and in the

territories, to impose this liability, was not fettered by

the necessity of maintaining existing arrangements

and stipulations wltich would conflict with the execu-

tion of its policy. To subordinate the exercise of the

federal authority to the continuing operation of pre-

vious contracts, would be to place, to this extent, the

regulation of interstate commerce in the hands of

private individuals and to withdraw from the control

of Congress so much of the field as they might choose

by prophetic discernment to bring within the range of

their agreements. The Constitution recognizes no

such limitation. It is of the essence of the delegated

power of regulation that, within its sphere, Congress

should be able to establish uniform rules, immediately

obligatory, which as to future action should transcend

all inconsistent provisions. Prior arrangements were

necessarily subject to this paramount authority.’’

It is clear from this language that the respondents here

cannot, by their conduct, prevent Congress from eliminating

devices which result in avoiding liability under the Federal

Employers’ Liability Act. If any such device or arrangement

is approved by this Court, then a simple avenue of escape

from liability under the Act has been provided railroad com-

panies. A switching corporation could be formed, the em-

ployees of which would perform all of the necessary switch-

ing operations on interstate trains of the defendant railroad

company at Laramie. The switch list would be furnished

these employees, and from the “‘information’’ or instructions

therein contained they could perform all of the necessary

switching to be done on these trains. These employees would

32

not be afforded the remedies provided by the Federal Em-

ployers’ Liability Act if the reasoning of the Utah Court is

to be upheld.

If the imagination of the officials of the railroad company

could devise enough companies to cover the operations neces-

sary to conduct its business, it would soon be freed of all lia-

bility under this Act. If it may eliminate as employees per-

sons who service and regulate refrigerator cars in its inter-

state trains, then it may, by a parity of reasoning, eliminate

switchmen, brakemen, enginemen, car repairmen, etc.

We submit that the opinion of the Utah Court is contrary

to the foregoing controlling authority from this Court and

that to uphold that court in its opinion would effectively

establish a serious inroad upon coverage of the F.E.L. A.

Point IV.

The respondent express company at the time of peti-

tioner’s injuries was a common carrier by railroad in

interstate commerce.

We readily acknowledge that there is a dearth of authority

supporting the contention of petitioner under this point.

However, even if this Court should agree with the Utah

Supreme Court. that the express company was not a common

earrier by rail in interstate commerce, nevertheless, the lia-

bility of the respondent railroad company would not be elim-

inated from this case. |

In Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S. Ct.

93, 65 L. Ed. 205, this Court held that an express company

was not a common carrier by railroad because in the ordinary

acceptation of the words, an express company was not a

Seg pio

33

railroad in the sense of owning engines, tracks, etc. In the

case at bar the express company furnishes an essential and

integral part of the transportation offered by the railroad

company in the conduct of its business. The transportation

of perishable goods and commodities has become a standard

part of railroad transportation. The large express companies

furnish the facilities to the railroads to enable them to trans-

port this type of freight. By so doing, the express companies

have become part and parcel of the railroad business. These

large express companies are owned by railroad companies.

In the case at bar the Pacific Fruit Express Company is

owned by the respondent Union Pacific Railroad Company

and the Southern Pacific Company.

Under the ruling of the Utah courts petitioner has been

entirely eliminated from any type of compensation. He is

not entitled to compensation under the Wyoming statutes

affording compensation to employees of intrastate railroads

because the express company is not a railroad according to

the holding of the trial court. Of course, if the express com-

pany were to be considered a railroad company, he would

not come within the Act because the business of the company

is almost entirely interstate. Petitioner does not come within

the other provisions of the Wyoming Compensation Statute

because those statutes eliminate therefrom employees engaged

in interstate commerce.

We submit that looking at this problem from a realistic

viewpoint these employees of the express company are en-

gaged in railroad work the same as persons in the general

employ of the railroad company itself. Their services are a

necessary part of the work of the railroad. We believe that

this Court should review the question of whether or not these

34

express companies are so much a part of rajlroading in this

country that their employees should be afforded the remedies

of the Federal Employers’ Liability Act. We submit that for

all practical purposes they are railroad employees, and this

fact should be judicially recognized.

Point V.

The evidence introduced by petitioner furnished an

evidentiary basis to support a finding that the respond-

ents, or each of them, were negligent and that such

negligence proximately caused, in whole or in part, in-

juries to petitioner.

The Supreme Court of the State of Utah, in our opinion,

gave only cursory consideration to the questions of negligence

and proximate causation. The Utah Court set out the four

grounds of negligence relied upon by petitioner as follows:

‘‘(a) a failure to furnish plaintiff a safe place

to work; (b) failure to provide any means of removing

the obnoxious carbon monoxide fumes; (c) ordered

plaintiff to service and adjust the charcoal burners

without help or assistance from any other employee;

(d) allowing gas to so aceumulate.”’

Only grounds (b) and (ce) were considered by the court.

In discussing ground (b) the court stated:

‘“* * * There was a safe means of working in the

manner plaintiff attempted; but he failed to carry it

out. A means of cleaning the bunkers of obnoxious

gas was available, had plaintiff properly applied it.”’

The evidence in this case established that the petitioner

was told that the train was to leave within five or six minutes

and that it was necessary for him to perform his duties in

35

regulating the heaters quickly. He was told by his foreman

to only open one plug on each of the cars. Such a direction

from the foreman of necessity eliminated the method of ven-

tilating mentioned by the court. The method required by the

exigencies of the occasion was not an adequate means of

removing the gas fumes. Hence, we submit that this ground

of negligence was sustained under the proof in this case.

The court conceded that negligence under ground (c) was

established in that the rules were disobeyed in requiring

petitioner to work alone. The court, however, held as matter

of law there was no proof of proximate cause. In discussing

this the court stated:

““* * * But there is no question that the rules

were disobeyed in sending plaintiff upon this duty

without assistance. However, there is no explanation

present in the case of how the situation would have

been different and the injury not suffered had he been

assisted by another employee. The result is that there

is a link missing in plaintiff’s efforts to connect the

negligence mentioned in (c) with the resultant fall and

injury.”’

We submit that there was an evidentiary basis which would

support a finding that this negligence proximately caused,

in whole or in part, injuries to petitioner. Since he was alone,

it was necessary for him to enter all three bunkers and no

one was present to assist him in the performance of any of

his duties. He was thereby subjected to the carbon monoxide

gas which had accumulated in the three bunkers in which

the heaters had been burning. If another employee had been

present, petitioner would have been relieved of the necessity

of subjecting himself to the fumes of all three bunkers. Also,

had two men been present, they would have had time to prop-

36

erly ventilate the cars by removal of the two plugs on each

car. Certainly, from this factual situation the jury could

have reasonably found that the lack of assistance proximately

contributed to petitioner’s injuries in that he either would

not have been subjected to as much gas as he in fact was, or

that the cars could have been properly ventilated and the gas

would not have had the effect which it did.

The matter of proximate cause has usually been considered

to be peculiarly within the province of the jury. Coray v.

Southern Pacific Co., 335 U.S. 520, 69 S. Ct. 275, 93 L. Ed.

208; Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed.

916; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65

S. Ct. 421, 89 L. Ed. 465; Tennant v. Peoria & P. U. R. Co.,

321 U.S. 29, 64 8. Ct. 409, 88 L. Ed. 520. See also the excel-

lent discussion on this subject contained in Eglsaer v. Scand-

rett, 151 F. 2d 562.

In the Coray case the concept of proximate cause expressed

by the Utah Supreme Court was criticized. This Court stated

at 335 U.S. at page 524:

‘“‘The language selected by Congress to fix liability

in eases of this kind is simple and direct. Considera-

tion of its meaning by the introduction of dialectical

subtleties can serve no useful interpretative purpose.

The statute declares that railroads shall be responsible

for their employees’ deaths ‘resulting in whole or in

part’ from defective appliances such as were here

maintained. * * * Congress has thus for its own

reasons imposed extraordinary safety obligations upon

railroads and has commanded that if a breach of these

obligations contributes in part to an employee ’s death,

the railroad must pay damages.’”

»

37

This Court has also recognized that there is always some

speculation in arriving at ultimate facts in cases arising under

the Federal Employers’ Liability Act. See the Kurn case,

supra.

We submit that the Utah Supreme Court in holding that

petitioner should b« deprived of a jury trial on the question

of proximate causation has disregarded the plain intent and

purpose of Congress and also the controlling authorities

decided by this Court.

CONCLUSION

The problem that is presented by this Petition for Writ of

Certiorari is a problem of great importance to persons per-

forming work on interstate trains. We believe that the Utah

Supreme Court has decided the questions here involved con-

trary to controlling cases announced by this Court and also

cases decided by Federal Circuit Courts. The distinguishable

Gaulden v. Southern Pacific Company, 78 F. Supp. 651, has

apparently caused confusion in this field.

We respectfully submit that this Court should grant this

petition in order that it could announce a definite rule to be

followed by the courts administering the Federal Employers’

Liability Act. We believe that the importance of the problem

and the serious error committed by the Utah Supreme Court

justifies us in requesting and this Court in granting a Writ

of Certiorari.

Respectfully submitted,

CALVIN W. RAWLINGS,

PARNELL BLACK,

Counsel for Petitioner,

530 Judge Building,

Salt Lake City, Utah.

APPENDIX ‘‘A”’

Section 51, Title 45, U.S.C.A.:

‘‘Eyvery common carrier by railroad while engag-

ing in commerce between any of the several States * * *

shall be liable in damages to any person suffering

injury while he is employed by such carrier in such

commerce, * * * for such injury * * * resulting in

whole or in part from the negligence of any of the

officers, agents, or employees of such carrier, or by

reason of any defect or insufficiency, due to its negli-

gence, in its * * * works, * * *.”’

Section 55, Title 45, U.S.C.A.:

‘‘ Any contract, rule, regulation, or device whatso-

ever, the purpose or intent of which shall be to enable

any common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void:

* * #9)

.

INDEX

STATEMENT OF THE CASE ............

RE TES ee eer mete owes fee

POINT I. Petitioner’s Cause of Action, if any, Against

the Union Pacific Railroad Company is not Con-

trolled by the Federal Employer’s Liability Act ....

POINT Il. Petitioner’s Cause of Action, if any, against

the Pacific Fruit Express Company is not Con-

trolled by the Federal Employer’s Liability Act ....

POINT III. The Arrangement Between the Union

Pacific Railroad Company and the Pacific Fruit

Express Company is not a Device Violative of 45

U. S. C. A. Sec. 55 Hae a ee ope Ss

POINT IV. The Evidence Introduced by Petitioner did

not Furnish an Evidentiary Basis for a Judgment

Against the Defendants, Even Assuming the

Federal Employer’s Liability Act to be Applicable . . .

CONCLUSION ...... Re Sigs con ok a eae

STATUTES CITED

i RC Ne Mia oh Ss sin IL We 8's brea BO

45 U.S. C. A., Sec. 55 ..... ey Ea Rem te AE

TABLE OF CASES CITED

Atchison, Topeka & Santa Fe v. Toops, 281 U. S. 351,

ee cam, Oe. 201, 74 L. Hd. OG... es

Chicago, Rock Island & Pacific R. Co. v. Bond, Adm.

of Turner, 240 U. S. 449, 36 Sup. Ct. 403, 60 L.

10

12

15

20

INDEX—Continued

Pag

Drago v. Central R. Co., 93 N. J. L. 176, 106 A. 803...... 1

Gaulden v. Southern Pacific Co., 78 Fed. Supp. 651,

Aitismed UT4 Bd 1ORS i ee 5, 10, 1

Hull v. Philadelphia & Reading Ry. Co., 252 U. S. 475,

40 Sup: Ct. 868, 661. Bd G70... . «eee. 3,

Jones v. New York Central R. Co., 182 F. 2d 326 ........ 5, |

Linstead v. Chesapeake & Ohio R. Co., 276 U. S. 28, 48

a Gs es. ee ee i as eo ees 5, 6,

Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup.

Ce RG ee RE fe ea i ieie ca eS

New York Central R. R. Co. v. Winfield, 244 U. S. 147,

87 Sup. Ct. 546, 61 L. Ed. 1045 ..................

Peters v. Industrial Comm. of Utah, 74 Utah 140, 277

ROAM CPSP a ge ergy earls kre Seer ite oS,

Philadelphia B. & W. R. Co. v. Schubert, 224 U. S. 603,

OR ees OR Oe, OO Ta EEE i es.

Pollock v. Minneapolis & St. Louis R. R. Co., 40 S. D.

SE eC ee ks ile lca tees

Reynolds v. Addison Miller Company, et al., 14% Wash.

ee ie I cs ee WG ee sls es wR es ea wee $1

Robinson v. Baltimore & Ohio Railroad Co., 237 U. S.

84, 35 Sup. Ct. 491, 59 L. Ed. 849 .............. 8, 8, 1

Stevenson v. Lake Terminal Railroad Co., 42 Fed. 2d 357. .

Taylor v. New York Central Railroad Co., 294 N. Y.

SE, ee ee a RE Re 5, |

Wells Fargo & Co. v. Taylor, 254 U. S. 175, 41 Sup. Ct.

is a CS ee een seed este ae :

£

I

fa. A A ER ee

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No. 468

PETE MOLETON,

Petitioner,

vs.

UNION PACIFIC RAILROAD COMPANY, a corporation,

and PACIFIC FRUIT EXPRESS COMPANY, a corpora-

tion,

Respondents.

BRIEF OF RESPONDENTS OPPOSING PETITION

FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioner’s statement of this case set forth in his brief

is argumentative and incomplete. The opinion of the Supreme

Court of Utah more fairly presents the facts disclosed by the

record. We refer the Court to that statement in lieu of stat-

ing the case ourselves (R. 118, 119, 120). Facts ignored by

petitioner’s statement, which are material to the argument

herein contained, will be incorporated in such argument with

appropriate reference to the record.

One further comment as to petitioner’s statement of the

case seems necessary. It is clear beyond dispute that the first

cause of action of plaintiff's complaint alleged the only theory

2

of liability which was presented to the Supreme Court of Utah.

Petitioner abandoned all theories of liability as contained in

his second and third causes of action. In this connection the

Supreme Court of Utah said:

“In their brief counsel for plaintiff have this to

say: ‘However, on this appeal we are only interested

in the first cause of action.’ We shall limit our discus-

sion to that cause. It is founded upon the idea that

plaintiff in the performance of this duty was, in real-

ity, performing the work of the railroad company and

therefore his case should be decided under the Federal

Employer’s Liability Act” (R. 120).

The Supreme Court of Utah could not have erred in ruling

on the liability of either defendant under the second or third

causes of action of petitioner’s complaint, because the Supreme

Court of Utah was never called upon to consider either of these

causes of action or the sufficiency of the evidence to warrant

submission of plaintiff’s case to a jury on the theories therein

embodied.

ARGUMENT

POINT I.

Petitioner's Cause of Action, if any, against the Union

Pacific Railroad Company is not Controlled by the Federal

Employer’s Liability Act.

Petitioner was not an employee of the Union Pacific Rail-

road Company at the time of his injury so that the Federal Em-

ployer’s Liability Act does not govern his cause of action

against that Company. Title 45, Section 51, U. S. C. A. pro-

vides, ia so far as is material to these proceedings, as follows:

“Every common carrier by railroad while engag-

ing in commerce between any of the several states

8

* * * shall be liable in damages to any person suf-

fering injury while he is employed by such carrier in

such commerce * * * for such injury * * *

resulting in whole or in part from the negligence of any

of the officers, agents or employees of such carrier.

* * *

“Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance of

interstate or foreign commerce; or shall, in any way,

directly or closely and substantially, affect such com-

; merce as above set forth shall, for the purposes of this

chapter, be considered as being employed by such

carrier in such commerce and shall be considered as

entitled to the benefits of this chapter.”

The words chosen by Congress to define the industrial

relationship which invokes the application of the Federal Em-

ployer’s Liability Act are: “While he is employed by such

carrier,” and the further words “any employee of a carrier.”

Since the enactment of this statute the courts have uniformly

F refused to give an artificial meaning to the language used and

4 have insisted that the words “employee” and “employed” were

used in their natural and usual sense.

4 Robinson v. Baltimore & Ohio Railroad Co., 237

U. S. 84, 35 Sup. Ct. 491, 59 L. Ed. 849.

Hull v. Philadelphia & Reading Ry. Co., 252 U. S.

475, 40 Sup. Ct. 358, 64 L. Ed. 670.

Stevenson Vv. Lake Terminal Railroad Co., 42 Fed.

2d 357.

Reynolds vy. Addison Miller Company, et al., 143

Wash. 271, 255 P. 110.

Petitioner’s relationship to the Union Pacific Railroad

Company must, therefore, be determined without imparting

4

to the words “employee” or “employed” as used in the Act

any special or hidden meaning or significance.

The facts as shown by the evidence and as admitted in

substance by petitioner’s brief are as follows:

(1) Moleton was hired by the Pacific Fruit Ex-

press Company and worked solely for that same Com-

pany for a period of approximately twenty years (R.

30).

(2) Mboleton’s rate of pay was determined ex-

clusively by the Pacific Fruit Express Company and

his wages were paid solely by that Company (R. 64).

(3) Moleton worked under the direct supervision

of employees of the Pacific Fruit Express Company

with no supervision by any officer or employee of the

Union Pacific Railroad Company (R. 64, 66).

(4) The methods used by Moleton and other em-

ployees of the Express Company for performing their

work were governed by rules of that company as, for

example, the safety rules mentioned in the evidence

(R. 86, 114).

(5) Moleton acquired seniority rights with the

Pacific Fruit Express Company by reason of his tenure

in the job for which he was employed (R. 54, 55).

(6) The Pacific Fruit Express Company is an

independent business engaged in performing services

for various railroad carriers and has been in existence

since the year 1906 (R. 105, 106).

(7) The only connection between Moleton and

the Union Pacific Railroad Company consisted of the

following: Moleton’s employer, the Pacific Fruit Ex-

press Company, having undertaken to perform heating

and refrigeration work on trains of this Railroad Com-

pany, the Railroad Company furnished to the Pacific

Fruit Express Company information as to the work

5

which the Railroad Company desired the Express Com-

pany to perform (R. 91, 92).

These facts impel the conclusion that petitioner was an

employee of the Pacific Fruit Express Company and that he

was not an employee of the Union Pacific Railroad Company

if the word “employee” is understood in its natural sense.

Consequently, petitioner’s cause of action against the Union

Pacific Railroad Company, if any, is not controlled by the

Federal Employer’s Liability Act.

To expand the meaning of the words “employee” and

“employed” as they appear in the statute to cover the relation-

ship of Moleton to the Union Pacific Railroad Company plainly

conflicts with the cases cited above. Moreover, this Court and

other courts have consistently rejected contentions such as are

now made by the petitioner where similar fact situations ap-

peared.

Chicago, Rock Island & Pacific R. Co. v. Bond,

Adm. of Turner, 240 U. S. 449, 36 Sup. Ct.

403, 60 L. Ed. 735.

Gaulden v. Southern Pacifie Co., 78 Fed. Supp. 651,

Affirmed 174 F. 2d 1022.

Jones V. New York Central R. Co., 182 F. 2d 326.

Docheney V. Pennsylvania Railroad Company, 60

F. 2d 808.

Pollock Vv. Minneapolis & St. Louis R. R. Co., 40

S. D. 186, 166 N. W. 641.

Taylor v. New York Central Railroad Co., 294 N.

Y. 397, 62 N. E. 2d 777.

Petitioner relies upon the case of Linstead v. Chesapeake

& Ohio R. Co., 276 U. S. 28, 48 Sup. Ct. 241, 72 L. Ed. 453.

—

6

This case does not really support petitioner’s position. In that

case this Court said: .

“It sometimes happens that one wishes a certain

work to be done for his benefit and neither has per-

sons in his employ who can do it nor is willing to take

such persons into his general service. He may then

enter into an agreement with another. If that other

furnishes him with men to do the work and places them

under his exclusive control in the performance of it,

those men became pro hac vice the servants of him to

whom they are furnished. But, on the other hand, one

may prefer to enter into an agreement with another that

that other, for a consideration, shall himself perform

the work through servants of his own selection, re-

taining the direction and control of them. In the first

case, he to whom the workmen are furnished is re-

sponsible for their negligence in the conduct of the

work, because the work is his work and they are for

the time his workmen. In the second case, he who

agrees to furnish the completed work through servants

over whom he retains control is responsible for their

negligence in the conduct of it, because, though it is

done for the ultimate benefit of the other, it is still in

its doing his own work. To determine whether a given

case falls within the one class or the other we must in-

quire whose is the work being performed, a question

which is usually answered by ascertaining who has the

power to control and direct the servaic3 in the per-

formance of their work. Here we must carefully dis-

tinguish between authoritative direction and control,

and mere suggestion as to details or the necessary co-

operation, where the work furnished is part of a larger

undertaking.’ ”

The facts disclosed in that case were that Linstead was

working under the rules of the Chesapeake & Ohio Railway

Company and under immediate supervision and direction of a

trainmaster of the Chesapeake & Ohio Railway Company at the

—

7

time of his death. Consequently, the court held that Linstead

was in fact an employee of the Chesapeake & Ohio Railway

Company. That the result would have been otherwise in that

case had the control and supervision of Linstead’s work rested

with the Big Four Railroad Company is shown by the last two

sentences of the quotation above.

Petitioner contends that he was employed by the Railroad

Company because he was doing the work of the Railroad Com-

pany. The Linstead case specifically states that the question

as to whose is the work being performed is usually answered

by ascertaining who has the power to control and direct the

employees in the performance of their work. The evidence in

the case at bar outlined above conclusively establishes that

Moleton was an employee of the Pacific Fruit Express Com-

pany and not of the Railroad Company when examined in the

light of the test indicated. We therefore submit that the Lin-

stead case supports respondents’ position and does not support

the position of petitioner.

The fact situations presented in the Cimorelli, Roth and

Barlion cases, relied upon by petitioner, are distinguishable

from the facts in the case at bar in that the railroad com-

panies who were the defendants in those cases exercised sub-

stantial contro] over the work of the plaintiffs. For example,

in the Cimore]'i case the railroad company defendant de-

termined the amount of equipment and the number of em-

ployees to be furnished by the contractor and the defendant

had the right to approve in advance every item of cost and

the necessity for the purchase of every item of equipment, and

also the amount of the salary or wages of every employee of

the contractor. That this relationship between the railroad

company and the contractor is dissimilar to the relationship

8

between the railroad company and the Pacific Fruit Express

Company in the case at bar is obvious. Perhaps the distine-

tion justified the conclusions reached in those three cases. No

such situation is here presented.

Before concluding this portion of our brief we ask the

court to note two further factors to be considered in determin-

ing whether or not petitioner was an employee of the railroad

company. During the 40-year life of the Federal Employer’s

Liability Act Congress has seen fit to liberalize its benefits,

but has not seen fit to extend the scope of the statute beyond

railroading in its strict sense. In 1939 Congress amended the

Federal Employer’s Liability Act to broaden the coverage

thereof to include those employees of railroad carriers whose

work substantially affected interstate commerce. Congress

did not see fit to enlarge the scope of that statute to cover em-

ployees of those industries allied with the railroad industry

but historically separate therefrom. See the opinion in the

Gaulden case, supra. It must be assumed upon familiar prin-

ciples of statutory construction that Congress was aware of

the interpretation placed upon the original Act by the Supreme

Court of the United States in the Robinson, Bond and Hull

cases, supra, and that Congress was satisfied with that in-

terpretation.

We respectfully submit that it is for Congress, rather

than for the courts, to broaden the scope of the Federal Em-

ployer’s Liability Act to include employees of industries such

as the Pacific Fruit Express Company, the Pullman Company

and others similarly situated.

The second factor worthy of consideration is the ex-

traneous effect of a decision by this Court that employees of

the Pacific Fruit Express Company are i: fact employees of

——

9

the railroad company for whom the Express Company may

be doing work. It is uniformly held that the Federal Em-

ployer’s Liability Act so fully covers the liability of inter-

state carriers for injuries to their employees as to eliminate

the application of state workmen’s compensation laws.

Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59,

33 Sup. Ct. 192, 57 L. Ed. 417.

New York Central R. R. Co. v. Winfield, 244 U. S.

147, 37 Sup. Ct. 546, 61 L. Ed. 1045.

Peters v. Industrial Commission of Utah, 74 Utah

140, 277 P. 408.

Consequently, a determination by this Court that an em-

ployee of the Pacific Fruit Express Company, such as Moleton,

is in fact an employee of the Union Pacific Railroad Company

must inevitably deprive employees of the Express Company

or other companies doing similar work of the protection of

workmen’s compensation statutes enacted in the states where

such employees work. We respectfully submit that this Court

should take into account the impact upon the laws of work-

men’s compensation of a decision that petitioner was an em-

ployee of the Union Pacific Railroad Company. If Congress

had desired an application of the F. E. L. A. to the claims of

workmen injured while working for industries such as the

Pacific Fruit Express Company, it could very easily have said

so when it amended the Act in 1939. The fact that Congress

did not change the wording of the Act by the 1939 amendment

to include employees of such industries was perhaps attribut-

able to congressional unwillingness to deprive such employees

of the benefits of such state workmen’s compensation acts.

In any event, for this Court now to do so by enlarging the

settled definition of employment under the F. E. L. A. to

———

10

include the relationship which Moleton bore to the Union

Pacific Railroad Company is to regress to a method of handling

employee claims which this Court has termed archaic.

POINT II.

Petitioner’s Cause of Action, if any, against the Pacific __

Fruit Express Company is not Controlled by the Federal Em-

ployer’s Liability Act.

The Pacific Fruit Express Company is not a common car-

rier by railroad so that the Federal Employer’s Liability Act

does not govern petitioner’s cause of action against that

Company. The language used by Congress to define those

employers subject to suit by injured employees under the

Federal Employer’s Liability Act is as follows: “Every com-

mon carrier by railroad while engaging in commerce between

any of the several states.” Title 45, Sec. 51, U. S. C. A,

quoted in substance supra. This Court and other courts have

uniformly held that employers such as the Pacific Fruit Ex-

press Company are not common carriers by railroad and, con-

sequently, are not subject to suit by their employees under

the Federal Employer’s Liability Act.

Wells Fargo & Co. v. Taylor, 254 U. 8. 175, 41 Sup.

Ct. 93, 65 L. Ed. 205;

Gaulden v. Southern Pacific Co., supra;

Reynolds vy. Addison Miller Co., supra.

In the Robinson case cited above this Court held that the

Pullman Company was not a common carrier by railroad

within the meaning of the Act. In the case of Jones v. New

York Central R. R. Co., cited supra, the Sixth Circuit Court

es

11

of Appeals determined that the Railway Express Agency was

not a common carrier by railroad within the meaning of the

Act. All these opinions would seem to make it clear that only

those employers who are actually engaged as common carriers

in the operation of a railroad are subject to suit under the

Federal Employer’s Liability Act.

No evidence was offered by petitioner in the case at bar

to show that the Express Company was a common carrier or

that it operated a railroad. The fact is, and no evidence in the

record is to the contrary, that the Pacific Fruit Express Com-

pany is not a common carrier and that it does not operate a

railroad. The petitioner seems to recognize these facts in his

brief on this petition for certiorari, but he persists in his

contention that the petitioner should be permitted to sue the

Pacific Fruit Express Company under the Act. If his argu-

ment be understood to mean that Congress has created a right

of action against the Pacific Fruit Express Company by the

language presently used in the Federal Employer’s Liability

Act, then the answer is that this Court and other courts have

construed the language in a manner contrary to his contention.

If petitioner’s argument be understood to urge that the Pacific

Fruit Express Company is not presently subject to suit under

the Act, but that it should be because of the nature of the

operation which it conducts and of its close association with

the railroad industry, then the answer is that petitioner’s sug-

gestions are appropriate for congressional consideration but

are inappropriately addressed to this Court. Any possible con-

tention that the Federal Employer’s Liability Act in its pres-

ent form permits suit against an employer such as the Pacific

Fruit Express Company was long since disposed of in the

Taylor case, supra, where the identical argument now made

by petitioner was rejected.

ie.

12

Petitioner is now requesting this court to overrule all

previously decided cases on this subject and to read into the

plain language of Congress a new meaning. Admitting there

is no authority whatsoever in support of his request, petitioner

asks this Court to engage in judicial legislation to afford him

a cause of action which Congress has not created. Upon the

justifiable assumption that Congress was aware of the judicial

interpretation which had been placed upon the Act by the

courts prior to 1939, and upon the undisputable fact that Con-

gress did not change the language of the Act defining those

employers subject thereto in the 1939 amendment, it would

seem appropriate to conclude that Congress was satisfied with

the interpretation given the statute by the courts and did not

propose to enlarge the scope of the statute in that particular.

We respecfully submit that certiorari should not be

granted to accomplish an amendment to the statute which Con-

gress has not seen fit to make.

POINT Il.

The Arrangement between the Union Pacific Railroad

Company and the Pacific Fruit Express Company is not a

Device Violative of 45 U. S. C. A., See. 55.

In so far as is material to this case, Title 45 U. S. C. A,

Sec. 55, provides as follows:

|

“Any contract, rule, regulation, or device whatso- |

ever, the purpose or intent of which shall be to enable |

any common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void.”

|

18

Petitioner argues that the arrangement between the Rail-

road Company and the Express Company is a device in viola-

tion of this section. The substance of petitioner’s contention

is that a railroad company which employs an independent

contractor to do work which the railroad company might do

by its own employees has employed a device to avoid liability

under the F. E. L. A. and that the arrangement is therefore

null and void.

In the Bond case, cited supra, the exact argument now

urged by this petitioner was considered by this Court and was

rejected in the following language:

“We do not think that the contract can be re-

garded as an evasion of Section 5 of the Employer’s

Liability Act, which provides ‘that any contract, rule,

regulation or device whatsoever, the purpose or intent

of which shall be to enable any common carrier to ex-

empt itself from any liability created by this act, shall

to that extent be void * * *

“Turner was something more than a mere shoveler

of coal under a superior’s command. He was an inde-

pendent employer of labor, conscious of his own power

to direct and willing to assume the responsibility of

direction and to be judged by its results. This is mani-

fest from the contract under review and from the

cooperage contract; it is also manifest from his con-

tracts with the other companies to whose industries

the railroad company’s tracks extended. We certainly

cannot say that he was incompetent to assume such re-

lation and incur its consequences.”

In the Gaulden case, cited supra, the federal courts re-

jected a similar contention, albeit on a different basis than was

given by this Court. The New Jersey courts disposed of a

contention identical with that of the petitioner with the same

results, Drago Vv. Central R. Co., 93 N. J. L. 176, 106 A. 803.

14

The power of Congress to invalidate by legislation pre-

existing devices created by interstate carriers to avoid liability

under the Act, as well as to invalidate those devices to avoid

liability which might be created by such interstate carriers

after the enactment of such legislation, is not to be doubted.

Philadelphia B. & W. R. Co. v. Schubert, 224 U. S. 603, 32

Sup. Ct. 589, 56 L. Ed. 911. But the fact that Congress is em-

powered to invalidate such pre-existing devices does not in

any way substantiate petitioner’s contention that the employ-

ment of an independent contractor by a railroad company is

such a device as is proscribed by Congress under Section 55 of

the Act. The cases cited above demonstrate that the courts

have always considered the legitimate employment of an in-

dependent contractor by a railroad to perform work for said

railroad as lawful and as consistent with the provisions of

Section 55 of the Act. Were it shown by the evidence that the

Railroad Company was motivated by the intention of improper-

ly avoiding liability under the Act when it engaged the services

of the Pacific Fruit Express Company as an independent con-

tractor, and that the arrangement was a mere subterfuge, the

situation might be otherwise; but the engagement of the serv-

ices of an independent contractor by a carrier for reasons en-

tirely foreign to a scheme for avoiding responsibility under

the F. E. L. A. has never been considered a device violative of

Section 55 of the Act.

‘It would appear that counsel for petitioner have been

unable to discover any case holding an arrangement similar

to that between the Railroad Company and the Express Com-

pany to be in conflict with that section. Certainly they have

cited no such case. We respectfully submit that petitioner's

contention in this regard is obviously flimsy in nature and

does not constitute an adequate basis for certiorari.

15

POINT IV.

The Evidence Introduced by Petitioner did not Furnish

an Evidentiary Basis for a Judgment against the Defendants,

even Assuming the Federal Employer’s Liability Act to be

Applicable.

If we are correct in the arguments hereinbefore set forth

that petitioner’s cause of action against the defendants, or

either of them, is not controlled by the provisions of the Fed-

eral Employer’s Liability Act, then certiorari should not be

granted. In addition to these matters on which we believe

our position to be correct, we here contend that the evidence

in the case at bar was insufficient to support a jury verdict

in favor of the plaintiff. We concede that the plaintiff in-

troduced sufficient evidence to present a question for the jury

as to the negligence of the Pacific Fruit Express Company, but

we deny that there is any evidentiary basis in the record to

justify the conclusion that petitioner’s injuries were caused

by any conduct of either defendant.

We do not here present any contention involving a peculiar

legalistic meaning of the term “proximate cause.” The point

which we now wish to make is that the evidence fails to disclose

that carbon monoxide poisoning was in fact a cause of plain-

tiff’s injuries, either in whole or in part. We respectfully sub-

mit that all of plaintiff’s theories of liability were pyramided

upon the basic premise that carbon monoxide gas poisoning

produced petitioner’s fall and consequent injuries. Unless the

evidence is sufficient that a jury might so find, petitioner

failed in establishing any causal connection between the negli-

gence alleged and the injuries complained of.

Examination of the record discloses no direct testimony

of any sort to the effect that plaintiff suffered gas poisoning

16

at the time of the accident. If his case was sufficient to go to

the jury on this question it could only be held sufficient on

the theory that a jury might properly draw an inference that

Moleton’s fall was so caused. We are not unmindful of the

decisions of this court in the Lavender and Tennant cases, cited

in petitioner’s brief, which hold that jurors must be permitted

a certain amount of speculation and conjecture in choosing

between what may.seem to them the more reasonable of two

conflicting inferences. But we do not understand that this

‘Court has ever receded from the proposition which found ex-

pression in the case of Atchison, Topeka & Santa Fe v. Toops,

281 U. S. 351, 50 Sup. Ct. 281, 74 L. Ed. 896. There Mr.

Justice Stone, speaking for the Court, stated that the only type

of inference which a jury would be permitted to draw was a

reasonable one. As we read the Lavender and Tennant cases,

this Court has gone no further than to state that a jury must

be permitted to choose between conflicting reasonable in-

ferences; and to further state that it is of no consequence to

a reviewing court whether the jury chose the more reasonable

or the less reasonable of such inferences. But it still remains

for a trial court or a reviewing court to decide whether or not,

as between conflicting inferences, one is so unlikely as to be

unreasonable. If it be a fact that an inference is unreasonable,

then it should not properly be the basis for a verdict at the

hands of a jury.

So in the case at bar if the inference of carbon monoxide

poisoning as a contributing factor to petitioner’s accident is

so weak and unsubstantial as to be unreasonable, the trial

court properly refused to permit the jury to draw the inference

in support of a rossible verdict for the plaintiff. We recognize

that each case must be judged on its own facts and that the

reasonableness of the inference to be drawn is dependent

es

* 17

thereon. It is therefore appropriate to examine the facts in

the case at bar to the end that it be determined whether or

not they support a reasonable inference that petitioner fell as

a result of gas poisoning.

We state at the outset that no one can rule out with rigid

certainty the bare possibility that petitioner’s fall may have

been caused by carbon monoxide poisoning. But the evidence

on this subject is such that we believe an inference of such

poisoning as a cause of the accident is weak, unsubstantial and

unreliable, so that it could not properly be accepted by reason-

able men and should not therefore be the subject of considera-

tion by a jury. The following facts either shown by the evi-

dence or within the judicial knowledge of this court lead to

that conclusion:

(1) Carbon monoxide is lighter than air;

(2) The hatch in the top of the bunker of the

car from which Moleton fell had been open for several

minutes before Moleton entered the bunker (R. 61, 62,

77) ;

(3) Moleton himself had been in the open air

for enough time after working in the bunkers of the

first two cars which he reached on the day of the acci-

dent that any possible effects of gas in the bunkers of

those cars should have been dissipated. This is demon-

strated by the fact that FDEX9084, which was the

second car from the west end of the train, was three

car lengths removed from the nearest other heater

cars in which the plaintiff worked on the day of the

accident (R. 74, 75, 76, 77, 100, 116) ;

(4) Moleton was in the bunkers of the three cars

a total of less than six minutes and in the bunker of

FDEX9084 only a minute or two (R. 77);

(5) There is no evidence that sufficient carbon

monoxide gas would remain in the bunkers under cir-

18

cumstances such as outlined above and made apparent

by the evidence in this case to cause anyone difficulty.

(6) The symptoms of carbon monoxide poisoning

were described by the lay witnesses, but Moleton ex-

perienced ne such symptoms after leaving any of the

bunkers on the day of the accident and, in fact, dis-

played no symptom of carbon monoxide poisoning

whatsoever (R. 43, 54, 85, 86) ;

(7) There are numerous other possible explana-

tions as to the cause of the accident; two which read-

ily occur are as follows: (a) Moleton might have

fainted from causes wholly dependent upon his own

physical condition; (b) Moleton might have slipped

and fallen without losing consciousness at all; and his

recollections thereof may be lost due to the shock he

sustained as a result of the fall. Such other possible

explanations do not, of course, eliminate the possibility

that carbon monoxide poisoning contributed to the fall

and the consequent injuries; but these other possibil-

ities must be taken into account in determining whether

the inference of gas poisoning is, in fact, a reasonable

inference;

(8) No medical evidence was offered by peti-

tioner to demonstrate that he had ever displayed any

symptoms of carbon monoxide poisoning. In fact, no

medical evidence of any kind was offered by petitioner

to support his theory as to how the accident happened

or even to prove that the accident could have happened

as the petitioner now claims by his brief that it did.

(9) Petitioner’s own testimony expressly nega-

tived the fact that he was overcome by carbon monox-

ide gas. In this connection he testified:

“Q. While you were working on these three cars

there, could you tell whether there was any gas in the

bunkers on either of the three before you fell?

“A. Well, I notice you got—I figure I open this

three plugs, I figure this gas go out, you know.

19

“Q. Were you dizzy while you were working on

either of the other two cars?

“A. No, I no been dizzy.”

By Mr. Black:

“Q. Your answer was: No, you weren’t dizzy

on either of the other two?

“A. No.

“Q. Now, how did you feel when you came up

out of the bunker of this third car?

“A. I feel just the same like I used to when I

work. I feel good. So I get out third car.

“Q. While you were putting the plug in, how

did you feel?

“A. I put it, I say I shut one off plug; after I

have to bend little bit is when I shut this plug, I raise

up and I remember nothing how I go” (R. 54).

The cases relied upon by petitioner as to this phase of the

case at bar have made it plain that this Court is committed

to the principle that even doubtful cases should be submitted

to juries for determination. Nevertheless, we respectfully sub-

mit that careful examination of the evidence shows the in-

ference that carbon monoxide poisoning contributed to peti-

tioner’s fall to be unreasonable and to be so unsubstantial and

unlikely as to fall short of any standard of proof acceptable to

the law. To attribute petitioner’s fall to carbon monoxide gas

poisoning is not to draw a reasonable inference, it is just

plain guessing and it is an unreasonable guess at that.

20

CONCLUSION

In conclusion we respectfully submit that the Supreme

Court of Utah correctly decided that petitioner’s cause of

action against the defendants was not controlled by the Fed-

eral Employer’s Liability Act and that even if it was he had

failed to present a proper case for submission to a jury under

that Act. We respectfully submit that the conflict alleged by

petitioner to exist in the opinions of the various Circuit Courts

of Appeal is nonexistent and thet the different results reached

in the different cases are easily explainable on the facts of

such cases. We respectfully submit that this Court should not

grant certiorari to create for petitioner a cause of action which

Congress has not seen fit to award him.

3 Respectfully submitted,

3 T. W. BOCKES,

BRYAN P. LEVERICH,

M. J. BRONSON,

A. U. MINER,

HOWARD F. CORAY,

D. A. ALSUP,

. Counsel for Respondents

2 10 South Main Street

Salt Lake City, Utah

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