Amicus Curiae Brief — Risberg v. Duluth, Missabe & Iron Range Railway Co.

TABLE OF CASES CITED

i : PAGE

‘Affolder v. New York, C. & St. L. R. Co., 339 U. S. 96

DY Ge eins Go aesatridercorsds \boyesuacie. 5

Brady v. Terminal Railroad Association, 303 U. S. 10

NY Cs ss ose Ves bas eckuaneps bhatreeesie 2,9

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

E cert. den. 267 U. S. 619 (1982) ...............05. 2,9

“Brinich v. Reading Co., U. S. D. C., E. D., Pa., Civil

Action BPOE PUMA hcp veh an ee Gish asdpencrscbeguese 5

Carter v. Atlanta & St. Andrew’s Bay R. Co., 338 U. S.

NE IRONY 2 oo oie ssi sks ieee casa daeeee’s 5

_ Coray v. Southern Pac. Co., 335 U. S. 520, 69 S. Ct. 275

% RES NA pire one ae pe Ps ep came ane Lay ee 7

“Fairport P. & E. R. Co. v. Meredith, 292 U. S. 589, 54 S.

| ae ee ere p re ee are 3, 6

~ Hickman v. Taylor, cert. den. 327 U. S. 808, vacated 328

_ _ U.S. 876, affirmed 329 U.S. 495 (1947) ........... 10

- O'Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384 (1949) .. 5

_ Bush v. Thompson, 356 Mo. 568, 202 S. W. 2d 800 (1947) 5

Southern Pac. Co. v. Carson, 169 F.2d 734 (C.C.A.9,

ee eases 7

Uv. S. v. A 70:3; Ce. BAO CARBO) 3. die ssc 10

_ Urie v. Thompson, 337 U. S. 163, 69 S. Ct. 1018 (1949) 7

i

IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1951. No. 128.

RoBERT RISBERG,

Petitioner,

Vv.

DuLuTH, MissaBE & IRON RANGE RarLway CoMPANy,

Respondent.

PETITION AND BRIEF, AMICI CURIAE, OF WARE-

HOUSE EMPLOYEES UNION, LOCAL 169, A. F. of L.

(Freight Handlers): UNITED RAILROAD WORKERS

OF AMERICA. C. I. O. (Carmen, Car Inspectors, Clean-

ers, Repairmen, Engine Watchers, Trackmen):; BROTH-

ERHOOD OF LOCOMOTIVE ENGINEERS, READING

COMPANY: BROTHERHOOD OF LOCOMOTIVE EN-

GINEERS, HUDSON & MANHATTAN R. R. CO. (En-

gineers, Firemen. Hostlers); ORDER OF RAILWAY

CONDUCTORS, PENNSYLVANIA RAILROAD

LINES EAST (Conductors, Brakemen, Switchmen):

INTERNATIONAL BROTHERHOOD OF ELECTRI-

CAL WORKERS, A. F. of L.. READING SYSTEM

(Electricians, Derrickmen, Power Machinery Men,

Winchmen).

TO THE HONORABLE, THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

The above-named labor unions beg leave to intervene and

file a brief, amici curiae, because of the immense importance

of the issue involved.

The sole question to which we direct our attention is

whether the various Safety Appliance Laws of the United

States, incorporated within 45 U. S. C. A., §§1 to 23, in-

clusive, and such regulations and rules promulgated there-

under by the Interstate Commerce Commission of the United

States are applicable to railroad equipment such as cars,

tenders and locomotives, when such equipment has been

placed by a common carrier by rail, engaged in interstate

commerce, on the private siding of an industrial plant,

quarry, mine or waterfront, for loading or unloading. The

issue is whether a railroad company is liable for injuries

sustained by reason of a violation of the Safety Appliance

Laws or of a Commission regulation, not only to its own

employees who may sustain injury while the car is on tracks

not owned by the employer railroad, but also to employees

of another industry or of independent contractors who are

injured while properly on such railroad equipment for the

purpose of loading or unloading. In the instant case the

court below has ruled that such equipment is not “in use”

within the meaning of the statute when the car is upon

an industrial track not owned by the railroad company.

This is a novel, violent interpretation of the law, and com-

pletely contradictory to all judicial holdings heretofore ex-

pressed in state courts throughout the United States, as

well as in federal courts, and indeed, this very court.

It is respectfully suggested that the opinion of the Supreme

Court of Minnesota misconstrues the meanings of the opin-

ions of this court in Brady v. Terminal Railroad Association,

303 U. S. 10 (1938) and Brady v. Wabash Ry. Co., 329 Mo.

3

1123, 49 S. W. 2d 24, cert. den. 287 U. S. 619 (1932). We

understand those cases to mean merely that as between the

two railroads, the car was not yet “in use” on the Wabash

system, since Wabash had not yet accepted the car from the

Terminal] Railroad Association. This meant that it was still

in use by Terminal, since that carrier had not yet relieved

itself of its responsibilities for compliance with the Safety

Appliance Laws as they affected that car.

By no stretch of the imagination can it be reasonably

contended that the language in those opinions meant that

when a railroad company pushes a car onto a track of one

of its customers for the purpose of loading or unloading,

that car is no longer “in use.” It was the clear intention of

Congress to make certain that no railroad company would

be permitted to delegate unto anyone other than another

railroad company its responsibilities for full compliance

with the Safety Appliance Laws. Certainly it is clear that

when a railroad company shunts a car onto an industrial

railway siding, it is the intention of all concerned that the

car he “used” for loading or unloading, and that human

beings be upon that car for such operations. There is no

restrictive language in the statute itself which holds that

the protection afforded by the statute and the duties im-

posed by the statute are limited solely to employees of the

railroad companies, or that such protection exists only when

the car is still on a track owned by the railroad company,

as distinguished from a track owned by one of its customers

whose tracks directly connect with those of the common

carrier.

This court had no difficulty in concluding that the Safety

Appliance Act applied not merely to employees of the rail-

road companies. In Fairport P. & E. R. Co. v. Meredith, 292

U. S. 589, 54 S. Ct. 826 (1934), this court held that a pas-

senger in an automobile at a grade crossing was still within

the orbit of protection intended to be afforded by the Safety

Appliance Act.

True it is that in the Fairport case the railroad equipment

4

was on the track of the railroad company. It would, how-

ever, be offensive to common sense and understanding if it

could successfully be contended that the same protection

does not exist when the car is pushed several hundred feet

onto a private siding. Certainly the use then being made

is the use contemplated by the agreement which must exist

in each and every case between the carrier and its customer,

It is a matter of common knowledge and one of which this

court can well take judicial notice, that every industry

which receives and holds a railroad car for more than 48

hours without having either loaded or unloaded the car,

as the case may be, is then charged demurrage, the charge

being set forth in the schedules of the Interstate Commerce

Commission, and varying according to size and type of car.*

The car is thus in actual profitable use while on the tracks

of the industry. Certainly a car is in use while it is actually

being loaded or unloaded. It is certainly also in use when

a fee is being paid by the industry for failure to return the

car to the carrier’s tracks within the 48-hour period.

A car can only be considered as not “in use” when it has

been completely withdrawn from service, either for repairs,

for junking when obsolete, or perhaps when put away on

storage tracks of the carrier itself because of lack of busi-

ness.

Naturally it cannot be assumed that the private industry

has within its own resources the experienced men and the

material adequate to cope with defects and inefficiencies in

these safety appliances so peculiarly a railroad function, for

which men need and receive special training, education

and experience. It was never contemplated that there

would exist any period when the protection intended by

the statute would become inert or “in vacuo,” although the

car was then being used to earn a profit for the carrier.

Whereas the Interstate Commerce Commission may well

be in a position to regulate the operations, installations,

maintenance and repair of railroad equipment, so long as

*See Second Revised Service Order of the Interstate SS

Commission No. 856 naming Car Demurrage Rules and Charges, Stor.

age Rules and Charges.

the Commission can deal with a railroad company, the abil-

ity to properly exercise such power over other industries

in whose hands a car may momentarily rest would be so

limited, and the interpretation of the applicable laws and

regulations would be so varied, that compliance with the

statute would become a nullity.

The position assumed by the Supreme Court of Minne-

sota is one which provides an unwarranted “out” for rail-

road companies from their absolute responsibilities, im-

posed by a long line of cases which have found their way

to this court and have been affirmed here. The most recent

of these cases are Carter v. Atlanta & St. Andrew’s Bay R.

Co., 338 U. S. 430 (1949); O’Donnell v. Elgin, J. & E. R. Co.,

338 U. S. 384 (1949); and Affolder v. New York, C. & St. L.

R. Co., 339 U. S. 96 (1950).

The mere fact that the plaintiff may bear the burden of

proof of establishing that there was no change in the condi-

tion of the car or other equipment involved and covered by

the Safety Appliance Act from the time the car left the

tracks of the railroad company until the time of the acci-

dent, in no way changes the responsibility of the railroad

company once such proof has been established.

To support the position assumed by the court below in

this case would mean that several million miners who load

and unload coal, stone and ores on railroad cars in mines,

quarries, coal yards, storage docks and coal docks, would be

deprived of this protection so explicitly granted in the stat-

ute and heretofore supported.

As recently as this year, in the United States District

Court for the Eastern District of Pennsylvania, in the case

of Brinich v. Reading Co., Civil Action No. 8702, the exact

opposite was held, under similar circumstances. So, too,

in Rush v. Thompson, 356 Mo. 568, 202 S. W. 2d 800 (1947).

Moreover, there is well-founded authority that in the

absence of diversity of citizenship, the violation of a Safety

Appliance Law may in itself support jurisdiction in a fed-

eral court, even though the injured be not a railroad em-

ployee (and therefore under the protection of the Federal

Employers’ Liability Act), because the Safety Appliance

Act is in itself a federal statute.

Not only are miners affected, but warehousemen, team-

sters, stevedores and longshoremen, as well. Indeed, it is

easy to suppose cases were railroad employees themselves

may be involved in situations like that of the instant case

and be denied, by this decision, the protection of this statute,

Under this decision, such a result could follow merely be-

cause at the time of the accident the car happened to be

50 feet up the track from the point where the railroad com-

pany’s tracks ended and the industry’s siding began, and

where there was no direct physical connection, at that in-

stant, between a train of the railroad company and the par-

ticular car standing alone on the privately-owned siding, a

short distance away.

As was said in Fairport, P. & E. R. Co. v. Meredith, 292 U.

S. 589, at 596:

“To confine the beneficial effect of these provisions to

employees and passengers would be to impute to Con-

gress an intention to ignore the equally important ele-

ment which their enactment actually contributes to the

safety of travelers at highway crossings. Since all of

these three classes of persons are within the mischief

at which the provisions are aimed, it is quite reason-

able to interpret the statute imposing the duty as in-

cluding all of them.

“It fairly may be said that the nature of the duty

imposed by a statute and the benefits resulting from

its performance usually determine what persons are

entitled to invoke its protection.

* * * « * * * s

“In the light of what has now been said, it follows

that the duty imposed upon petitioner by the provisions

of the act in respect of power controlled brakes ex-

tends to and includes travelers at railway-highway

crossings.”

7

To the same effect, see Southern Pac. Co. v. Carson, 169

F. 2d 734, 739 (C. C. A. 9, 1948).

In Urie v. Thompson, 337 U. S. 163, 69 S. Ct. 1018 (1949),

the Court said, at 1035:

“As with the Employers’ Liability Act, we do not

doubt that the prime purpose of the Boiler Inspection

Act was the protection of railroad employees and per-

haps also of passengers and the public at large, cf. Fair-

port, P. & E. R. Co. v. Meredith, 292 U. S. 689, 54 S. Ct.

826, 78 L. Ed. 1446, from injury due to industrial acci-

dent. The safety of all those affected by railroading

was uppermost in the legislative mind.” (Emphasis

supplied.)

In Coray v. Southern Pac. Co., 335 U. S. 520, 69 S. Ct. 275

(1949), where the decedent was not working on the train

in question, but was on a hand-car which ran into the train

which had stopped by reason of a defective braking system,

the Court said, at 522:

“First. We cannot agree with the State Supreme

Court’s holding that although the railroad ran its train

with defective brakes it thereby ‘violated no duty

owing’ to the decedent. That court said that the object

of the Safety Appliance Act ‘insofar as brakes might be

concerned, is not to protect employees from standing,

but from moving trains.’

“We do not view the Act’s purpose so narrowly. It

commands railroads not to run trains with defective

brakes. An abrupt or unexpected stop due to bad

brakes might be equally dangerous to employees and

others as a failure to stop a train because of bad brakes.

And this Act, fairly interpreted, must be held to protect

all who need protection from dangerous results due to

maintenance or operation of congressionally prohibited

defective appliances. Fairport, P. & E. R. Co. v. Mere-

dith, 292, U. S. 589, 597, 54 S. Ct. 826, 829, 78 L. Ed.

1446. Liability of a railroad under the Safety Appliance —

Act for injuries inflicted as a result of the Act’s viola-

tion follows from the unlawful use of prohibited de.

fective equipment ‘not from the position the employee —

may be in, or the work which he may be doing at the —

moment when he is injured.’ Brady v. Terminal R,

Ass’n, 303 U. S. 10, 16, 58 S. Ct. 426, 429, 430, 82 L. Ed,

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

37 S. Ct. 456, 457, 61 L. Ed. 931. In this case where un- ©

disputed evidence established that the train suddenly

stopped because of defective air-brake appliances, peti-

tioner was entitled to recover if this defective equip- _

ment was the sole or a contributory proximate cause

of the decedent employee’s death. Davis v. Wolfe, 263

U. S. 239, 243, 44 S. Ct. 64, 66, 68 L. Ed. 284; Spokane

& I. E. R. Co. v. Campbell, 241 U. S. 497, 509, 510, 36 S.

Ct. 683, 689, 60 L. Ed. 1125.” (Emphasis supplied.)

We are not unaware of the fact that this matter has al-

ready been before this court and that on October 8, 1951,

certiorari was denied on petition of the plaintiff from the

court below. This case is now ajtain before the court on

petition for re-hearing. The case escaped the attention of

counsel] for the various unions here intervening, who rep-

resent millions of American workers and their families.

It may be anticipated that the incidence of accidents to mem-

bers of these various labor groups, by reason of violations of

the absolute requirements of the Safety Appliance Act per-

taining to railroads, will continue unabated. If this deci-

sion is permitted to stand, the uniformity of protection in-

tended by the Congress of the United States will be lost.

Each state will decide for itself what remedy, if any, will

be available to those who sustain injury by reason of the

violation of these strict statutes that all, heretofore, be-

lieved protected these American workers. The rule of

absolute liability will be diluted to a right of recovery pred-

icated on negligence under Section 393, illustration 1, of

the Restatement of Torts.

. Much has been written,. pro and con, about the advis-

ability of this court’s granting certiorari in railroad cases.

We are not unaware of the comments of various members

of this court in connection with Employers’ Liability Act

cases, suggesting that the issues involved were not of suf-

ficient national importance to justify the grant of certio-

rari. We respectfully direct the court’s attention to the fact

that the specific question involved in this case has never

been passed upon directly by this court, and was implicitly

left open for consideration at a later date when the specific

issue would be presented to the court. . This specific reserva-

tion for future determination occurred when the court con-

sidered the two Brady cases, supra. No case in this court,

until now, has yet decided this important issue.

There is a clear conflict between the opinions of the United

States District Court for the Eastern District of Pennsyl-

vania in the Brinich case, supra, and that of the Supreme

Court of Minnesota in the instant case.

Whereas this court has seen fit, since 1944, to grant cer-

tiorari in more than thirty cases involving Employers’

Liability Act matters, this is the first time that the position

of employees whose relationship to railroading is but in-

cidental, has come before this court; they ask for a restate-

ment of the principles of law providing for their protec-

tion, which they had assumed they had, and heretofore

considered unquestioned. At the same time the court will

have the opportunity to consider a novel question so far as

railroad employees are concerned, where injury occurs on

cars which, at the moment of accident, are not on tracks di-

rectly owned by the railroad company.

Although certiorari has already been denied in this case,

it will not be the first time that. this court has seen fit to

grant certiorari after it had first refused it. This court has

always shown an open mind to consideration of matters of

national import, affecting large segments of the public, al-

though certiorari had previously been denied, where the

significance and importance of the case was not pointed out

10

to the court until after its origina] decision to deny cer-

tiorari had been rendered. This was the case in Hickman v,.

Taylor, cert. den. 327 U. S. 808, vacated 328 U. S. 876, af-

firmed 329 U. S. 495 (1947). Only last week this court

granted certiorari in United States v. Sacher, decided Oc-

tober 15, 1951, where it had originally refused certiorari,

when it was pointed out to the court that matters of great

moment to each and every member of the bar, as well as to

civil liberties in general, theretofore undecided, were in-

volved in that case.

Indeed, this court has, on its own motion, without a peti-

tion for rehearing, and out of time, granted certiorari and

reversed, where there was brought to its attention the

fact that it had previously refused certiorari in the same

case and that an obvious injustice had been rendered by

that decision. In U. S. v. Shaughnessy, 70 S. Ct. 329 (1950),

this court, having previously denied certiorari to one Eich-

enlaub, upon consideration of another case which was af-

firmed upon the authority of Eichenlaub, itself vacated the

order denying certiorari and heard both causes.

It is respectfully submitted, therefore, subject to the

criticism that has sometimes been made in F. E. L. A.

cases where the issue pertained solely to the existence or

non-existence of negligence, that this case presents a funda-

mental question of statutory coverage not yet previously

decided by this court and on which direct conflict exists in

the several courts below.

To lend a deaf ear to these millions of heretofore silent and

inarticulate workers would be to render them a grave in-

justice in the face of an express Congressional intent and,

indeed, mandate, to protect them from the violation of these

important statutory regulations of railroad appurtenances.

Respectfully submitted,

JOHN H. HOFFMAN,

B. NATHANIEL RICHTER,

RICHTER, LORD & FARAGE,

Counsel for Amici Curiae.

11

Addendum

ADDENDUM.

Since the printing of this brief, our attention has been

drawn to the case of Patton v. Baltimore & Ohio R. Co., 99

F. Supp. 455 (U. S. D. C., W. D., Pa., decided September

30, 1951), in which the factual picture exactly parallels

the one in the instant case. There, too, an employee of a

slag company was unloading a car on his employer’s private

siding. He was working at the bottom of a hill when, due

to an alleged violation of the federal Safety Appliance Act,

four slag cars owned by the railroad company and placed

where they were by the slag company, began to roll down-

hill and crashed into other cars at the foot of the slope,

resulting in fatal injury to the slag company employee.

Suit was brought against the railroad company under the

Pennsylvania death statute and under the federal Safety

Appliance Act. There, too, it was argued that the Safety

Appliance Act was not applicable because the deceased was

not an employee of the railroad company and the car was

not “in use.” Said the Court, at page 457:

“At the trial, B. & O. pressed the legal argument that,

since deceased was not an employee of B. & O., the

federal Safety Appliance Act could not be here invoked

in favor of his administratrix’ complaint. Any such

restrictive application of legislation like the federal

Safety Appliance Act I should be most reluctant to

adopt. Fortunately, the law is clear that non-employees

within the circle of risk are also covered by the Act.

See Fairport, P. & E. R. Co. v. Meredith, 1934, 292 U. S.

589, 54S. Ct. 826, 78 L. Ed. 1446.”

A clearer conflict between the decisions in the instant

case and any other case which involves precisely the same

i

12

Addendum

question of law, could not be presented to this Court, n “i

could any case speak more eloquently for the grant 7

certiorari here. 4

Respectfully submitted,

JOHN H. HOFFMAN,

B. NATHANIEL RICHTER, ~

RICHTER, LORD & FARAGE, ~

Counsel for Amicus Curiae, ~