Petition for Writ of Certiorari — United States v. Chicago, Burlington & Quincy Railroad

Supreme Court brief1953

Ask Donna

What actually matters in this document.

Text

INDEX

Page

NE 45.2 ih cys Shean cde Wee = bei See ae een 2

UMMA ss sicck cog Saco ba ba es Ses Une er ee 2

I NINO oo is ie i ean e ep wine cee ees se cewen tis 2

Statutes and order involved ................. 00 cece eee eee 2

EE trai ere Nek ot ih A aieeate Pye tM ies eae Miers 4

Reasons for granting the writ...................0.--0005. 9

ISOMER eS al tears Pe OTe O PSR SER Ra ee 21

CITATIONS

Cases:

Chicago, St. Paul, M. & O. Ry. Co. v. United States, 36

F. 2d 670 . Peri tant re thet inmete nel nade eee areca 11

Illinois Central R. Co. Vv. U nited States, 14 F. ‘2d 747, cer-

MOPETT GUINOE: Bia Ut. COn.... 6.5 ic Rivets cease 11

Louisville & Jeffersonville Bridge Co. v. United States,

249 U.S. 534. sear essen OR OY AO Ah ea eS . 10, 12, 13, 16

United States v. Chicago, Burlington & Quincy R. R. = 237

UN IMG: AS ti MES i Bam Gr ah pues amie SRI ye ge 15, 16, 19

United States v. Elgin, J. & E. Ry. Co., 182 F. ‘2d 2. uss hy eee

United States v. Erie R. R., 237 U.S. 402 Bice caraart a 15, 16, 17

United States vy. Northern Pacific Ry. Co., 254 U.S. 251,

10, 14, 16, 18

United States v. South Buffalo R. Co., 168 F. 2d 948, eer-

tiorari denied, 335 U.S. 870......... 9,11

United States v. Southern Pacific Co., 60 F. 2d 864, cer-

tiorari denied, 287 U.S. 667........... 11

Statutes and order:

The Act of March 2, 1893, ce. 196, 27 Stat. 531:

ee Le a ee | ee ere 2

See. 6 [45 U.S.C., 1946 ed., 6].............000 000. 3

The Act of March 2, 1903, c. 976, 32 Stat. 943 amending

the 1893 Act:

Bes. 3 i465 URC., 1006 of., 9)... 6... ces. 3

Order of the Interstate Commerce Commission, dated June

Oy 1GRO C40 Calis AOL). eke veceeesatecsces 4

Miscellaneous :

H. Rep. No. 1678, 52nd Cong., Ist sess................. 18

S. Rep. 1049, 52nd Cong., Ist sess..................... 18

(1)

205409

Inthe Supreme Court of the Wnited States

OctToBER TERM, 1952

No. 550

UnitTEp STATES OF AMERICA, PETITIONER

Vv.

Cuicaco, Burtincton & Quincy Rartroap Com-

pany and Gur, Mosite & Onto RaiwRoap Com-

PANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to re-

view the judgments of the United States Court of

Appeals for the Seventh Circuit (R. C. 64; R. G.

56) ' affirming judgments dismissing actions to re-

1'The record with respect to the proceeding involving Chi-

cago, Burlington, & Quincy Railroad Company is referred to

herein by the designation “R. C.,” and the record with respect

to Gulf, Mobile & Ohio Railroad Company by the designa-

tion “R. G,”

(1)

ge eee ie eae eee a a ie

SOUT SESE EN

cover penalties for alleged violations of the Safety

Appliance Act.

OPINION BELOW

The opinion of the Court of Appeals (R. C. 58-

63; R. G. 50-55) is reported at 199 F. 2d 22s.

JURISDICTION

The judgments of the Court of Appeals were en-

tered October 16, 1952 (R. C. 64; R. G. 56). The

jurisdiction of this Court is invoked under 28

U.S. C. 1254(1).

QUESTION PRESENTED

Whether movements of intact units consisting of

an engine and 33 and 23 cars, respectively, in un-

interrupted trips of one and a half and two miles,

were train movements under the Safety Appliance

Act.

STATUTES AND ORDER INVOLVED

The Act of March 2, 1893, ¢. 196, 27 Stat. 531,

provides: .

See. 1 [45 U.S. C. 1] * * * it shall be un-

lawful for any common carrier engaged in in-

terstate commerce by railroad to use on its line

any locomotive engine in moving interstate

traffic not equipped with a power driving-

wheel brake and appliances for operating the

train-brake system, or to run any train in such

traffic * * * that has not a sufficient number

of cars in it so equipped with power or train

brakes that the engineer on the locomotive

drawing such train can control its speed with- |

out requiring brakemen to use the common

hand brake for that purpose.

« * *

: Sec. 6 [45 U.S. C. 6] * * * any such com-

mon earrier using any locomotive engine, run-

ning any train, or hauling or permitting to be

hauled or used on its line any car in violation

of any of the provisions of this act, shall be

4 liable to a penalty of one hundred dollars for

| each and every such violation, to be recovered

in a suit or suits to be brought by the United

A States district attorney in the district court

of the United States having jurisdiction in the

locality where such violation shall have been

committed * * *.

: The Act of March 2, 1903, ¢. 976, 32 Stat. 943,

q amending the 1893 Act, provides: é

Sec. 2 [45 U. 8. C. 9] * * * whenever, as

provided in said Act [of March 2, 1893, supra], &

any train is operated with power or train €

brakes, not less than fifty per centum of the

cars in such train shall have their brakes used

and operated by the engineer of the locomotive

drawing such train; and all power-braked

ears in such train which are associated to-

gether with said fifty per centum shall have

their brakes so used and operated ; and, to more

fully carry into effect the objects of said Act,

the Interstate Commerce Commission may,

from time to time, after full hearing, increase

the minimum percentage of cars in any train

required to be operated with power or train

brakes which must have their brakes used and

eT ee ae

operated as aforesaid; and failure to comply

with any such requirement of the said Inter-

state Commerce Commission shall be subject

to the like penalty as failure to comply with

any requirement of this section.

The order of the Interstate Commerce Commis-

sion, dated June 6, 1910 (49 C. F. R. 132.1), pro-

vides:

On and after September 1, 1910, on all rail-

roads used in interstate commerce, whenever,

as required by the Safety Appliance Act as

amended March 2, 1903, any train is operated

with power or train brakes, not less than 85

per cent of the cars of such train shall have

their brakes used and operated by the engineer

of the locomotive drawing such train, and all

power-brake cars in every such train which

are associated together with the 85 per cent

shall have their brakes so used and operated.

STATEMENT

The court below has considered together, in one

opinion, two judgments dismissing, after trial,

complaints against railroads charging violations

of the air-brakes provision of the Safety Appliance

Act.

1. The complaint against the Chicago, Burling-

ton & Quincy Railroad, filed in the District Court

for the Northern District of Illinois, alleged four

causes of action, but it was stipulated and agreed

that the movement of cars alleged in the first cause

of action was similar to the movements in the other

. guy ltt Sut TOE

Basi ou sor Bnt Yet ayaa eaten ey RS Rin tah BO ATT SA RII DRIES GIES SINE OR SOR

three causes and that the decision of the court on

the first cause should be binding upon the parties

as to the other causes (R. C. 47).

The district court found that the movement in

question consisted of 23 freight cars drawn by a

diesel engine from respondent’s Freight House

Yard at Aurora, Illinois, for a distance of s'ightly

over two miles, to its West Yard at Kola, [linois,

without power or air brakes in operation an any

of the cars (R. ©. 47-48). The cars had been as-

sembled in the Freight House Yard and were

hauled intact to the Kola yard to be coupled into

outgoing trains (R. C. 49-50). No cars were

picked up or set out enroute (R. C. 48). The

movement was at a speed of eight to ten miles

per hour (R. C. 48). The movement was over a

‘lead track’’® paralleling respondent’s three main

tracks and crossed two public crossings, one across

a much-traveled street protected by automatic

“CURSES. pee

Mela OAR

flashing light signals and bells, and the other at a@ >

graveled highway, having an open view in all di-

rections. (R. C. 48-49.)

At the Freight House, the lead track was ten

feet below the main tracks and was at an ascend-

ing grade until it reached a level with the main

tracks at the Eola yard. No through passenger

train used the lead track, but the ‘‘second class”’

freight trains, Nos. 83 and 84, running between the

Eola yard to West Chicago, a short distance beyond

2The term “lead track” was employed in the proceeding

below to designate the track leading from the Freight House

trackage to the Eola yard.

Aurora, used one and one-half miles of the track

daily. These trains did switching beyond Aurora.

(R. C. 29, 48.) The entire distance of the lead

track was ‘‘within the yard limits’’ of Aurora, and

all operations of trains Nos. 83 and 84 and of switch

engines were based on an operating rule permit-

ting the track to be used as it was ‘‘seen and known

to be clear”? (R. C. 48-49). The entrance to the

main tracks was controlled by interlocking

switches, and derails on the lead and entrance

tracks protected against trains entering the main-

line tracks without proper signal indications (R.

C. 49). The movement here in question was under

the direction and control of the yardmaster and

the engine was manned by a switching crew; no

caboose was attached and no train markers were

carried (R. C. 49-50.) According to the district

court’s finding, at the speed at which the train

moved, it could be controlled ‘‘quickly’’ by the

engineer, using the locomotive brakes, and the cars

could be stopped ‘‘as quickly”? as if the power

brakes were available ‘‘except in any emergency”’

(R. C. 48.)

The district court found, as a conclusion of law,

that the movement was ‘‘a switching movement and

not a train movement,” and he therefore dismissed

the causes of action (R. C. 50).’

3 The district judge’s reasoning is indicated in an oral state-

ment (R. C. 43-45) in which he concluded that “all the facts

and circumstances” must be examined. Without attributing

decisive force to any one circumstance, he relied on the fol-

lowing aspects: use of a yard crew (R. C. 44), absence of a

caboose (R. C. 44), absence of flags to indicate the classifica-

tion of train (R. C. 44), movement within the limits of one

aaa PPG APPA Nt

2. The complaint against the Gulf, Mobile &

Ohio Railroad, filed in the Southern District of

Illinois, alleged a movement of locomotive and 33

freight cars from its Venice, Llinois, yards to the

yards of the Terminal Railroad Association at

East St. Louis, Missouri, without brakes in opera-

ation on the cars (R. G. 3-4).

The district court found the movement to have

covered a distance of approximately one and one-

half miles, at the rate of four to five miles per

hour, without air brakes in operation on the cars,

and no showing appeared that any switching was

done enroute, although in similar movements cars

not going all the way to the Terminal yards were

sometimes switched off to the intermediate portion

of the Venice yards (R. G. 42-43). The cars in ques-

tion had been assembled from four incoming trains

and all ‘were designated for the Terminal Rail-

road’? and by this movement transferred to that

railroad’s yard (R. G. 42). The movement, until

it entered the Terminal yards, was through the

Gulf, Mobile & Ohio’s Venice yards, which were ex-

tensive, and consisted of three sections. Freight

trains were made up and broken up in these yards,

and the yards adjoined the Terminal yards (R. G.

41.) No trains passed through the Venice yards

yard, “the Aurora-Eola yard” (R. C. 44), and the use of the

track “only for yard purposes” because the two freight trains

Nos. 83 and 84 traveled such a short distance beyond the

Aurora yard that it was “no more or less than a switching

movement” (R. C. 44-45). The district judge considered it

“not determinative” that no switching took place in the dis-

we of over two miles and that highways crossed the track

. C. 45).

COLLIE LAIN AOR LEN

aetna yi ia Bet SRA RI NON AP RAB RR AN ai SERNA DEANE LEAR SEERA NIECE TABU Hp FOE ENG a

(R. G. 42), and the movement here in question

crossed no main-line tracks of any railroad. The

movement crossed a paved street known as State

Route 3, at which a crossing watchman was posted.

Since the movement began only 40 to 50 feet from

this crossing, the speed at the crossing was only

three miles per hour (R. G. 42).

The movement was under yard rules and under

control and supervision of the yardmaster, who

was located in a tower, and could communicate with

crews by a system of loudspeakers, but there was

no finding of any communication during the move-

ment (R. G. 41). The movement was drawn by a

diesel switch-engine and handled by a switching

crew; it was not made pursuant to any regular

schedule (R. G. 41). No injury had arisen out

of such a movement within the past 40 years (R. G.

42).

The district judge concluded, as a matter of law,

that the Gulf, Mobile & Ohio movement ‘‘was a

yard switching movement and did not constitute

a train movement”’ (R. G. 43), relying primarily,

according to his memorandum (R. G. 38), upon the

precedent of United States v. Elgin, J. & E. Ry.

Co., 182 F. 2d 1 (C. A. 7).

On appeal, the court of appeals affirmed both

judgments of the district courts, holding the opera-

tions in both cases to be switching operations and

not to involve train movements. It stated (R. C.

61-62) :

The lack of any uniform definition as to

what constitutes a train movement is aptly

illustrated by two recent decisions, United

States v. South Buffalo R. Co., 168 F. 2d 948,

decided by the Second Circuit, and United

States v. Elgin, J. & E. Ry. Co., 182 F. 2d

1, decided by this court. A fine-tooth comb is

required to differentiate between the facts of

the two cases. The Second Circuit, however,

decided that the operation in question was a

train movement and reversed the District

Court, which had held that it was a switching

movement. On the other hand, this court de-

cided on the facts before it that the operation

was not a train movement and affirmed the

District Court. These two cases with strik-

ingly similar facts but with opposite results

are typical of others which could be cited.

REASONS FOR GRANTING THE WRIT

1. a. The passage quoted immediately above

shows that the Seventh Circuit itself recognizes

that the Second and Seventh Circuits are reaching

‘opposite results’’ in cases with ‘‘strikingly simi-

lar facts.’ The Second Cireuit’s decision in

United States v. South Buffalo R. Co., 168 F. 2d

948, certiorari denied, 335 U. S. 870, involved a

movement of 15 cars for two miles entirely within

the carrier’s yard by a carrier engaged only in

yard operations. The only diffevence in critical

facts between that case and those at bar is that a

lesser number of cars was hauled in the South

Buffalo case.

b. The attempted distinction between the South

Buffalo case and the Elgin case relied on below was

based on an appraisal of the degrees of danger

involved. But this Court has explicitly held this

factor immaterial. In United States v. Northern

Pacific Ry. Co., 254 U. 8. 251, 255, it declared that

‘‘Congress has not imposed upon courts applying

the act any duty to weigh the dangers incident to

particular operations.”’

Similarly, under the decision below, the trier of

fact is allowed to consider other protections af-

forded at grade crossings in determining whether

the movement of cars was dangerous enough to

be a ‘‘train’’ within the meaning of the statute.

But in Louisville & Jeffersonville Bridge Co. v.

United States, 249 U. S. 534, 539, the Court stated:

It is argued that coupling of the train brakes

was not necessary for the reason that the street

crossings used were protected by gates, that

a yard master from an elevated tower watched

over the main line movements, and that the

coupling of the train-brake appliances would

involve more danger to the employees than the

movement of the cars without their being used

and operated. These suggestions serve to em-

phasize the dangerous character of the move-

ment. But the construction which the act

should receive is not to be found in balancing

the dangers which would result from obeying

the law with those which would result from

violating it, nor in considering what other pre-

cautions will equal, in the promotion of safety,

those prescribed by the act. Such considera-

tions were for Congress when enacting the law

* * *. [Italics supplied. ]

Clearly the danger involved cannot determine

whetier a movement of a number of cars is a train.

Switching movements may well be as dangerous

as ‘“‘train’’ operations. Particularly incongruous

is the apparent weight accorded below to the num-

ber of grade crossings and prior accidents in e-

termining whether a particular movement is a

train. The court of appeals noted here that in the

Chicago, Burlington & Quincy case, the track

crossed two ‘“‘public highways’’ (R. C. 62, R. G.

54), and that in the Gulf, Mobile and Ohio case a

single state highway was protected by a watchman

(R. G. 54). In the South Buffalo case the only

grade crossing was one ‘‘adequately protected”

private industrial crossing 168 F’. 2d at 950 n. But

such factors, and fine distinctions based thereon,

can hardly be decisive in interpreting the word

“‘train.”’

e. The decision below also conflicts with United

States v. Southern Pacific Co., 60 F. 2d 864 (C. A.

9), certiorari denied, 287 U. S. 667, Chicago, St.

P., M. & O. Railway Co. v. United States, 36 F.

2d 670 (C. A. 8), and Illinois Central R. Co. V.

United States, 14 F. 2d 747 (C. A. 8), certiorari

denied, 273 U. S. 752. In the Southern Pacific

case, the Ninth Circuit held that the Act applied to

movements of between 10 and 26 cars for a distance

of one mile along a ‘‘drag track’’ between two parts

of a yard in San Francisco. In the Chicago, St. P.

M. & O. case the movement held to constitute a

train was of 16 cars for 1% miles between parts of

ayard. In the Illinois Central case, the movement

of 18 cars was for slightly less than a mile on a

lead track between parts of a yard. The three

saauncnenneed , ER cee i ee : ——

eases last cited differ from the instant cases and

the South Buffalo case only in that there were

a larger number of grade crossings.

It is apparent from this analysis of the cases in

the courts of appeals that on substantially identical

facts the Safety Appliance Act has been applied in

the Second, Eighth and Ninth Circuits, but that

it is not being applied to railroads in the Seventh

Circuit. This in itself would warrant review by

this Court in order to insure that the Act be ap-

plied uniformly throughout the country. In addi-

tion, as we shall show, the decision below disre-

gards the standards of interpretation approved by

this Court.

2. The court below has so misconceived the de-

cisions of this Court as to make application of the

Safety Appliance Act, in the court’s own language,

‘*depend largely upon the opinion or judgment of

the court called upon to make a decision’’, with the

result that ‘‘the opinion of one judge or court is

likely to be as good as that of another’’ (R. C. 61,

R. G. 53). The decision below thus thrusts upon

the courts the essentially legislative function of de-

ciding whether power brakes are in their opinion

desirable in a particular operation, contrary to the

warning of this Court in Louisville & Jeffersonville

Bridge Co. v. United States, 249 U.S. 534, 539, that

‘the construction which the act should receive is

not to be found in balancing the dangers which

would result from obeying the law with those which

would result from violating it, nor in considering

whet other precautions will equal, in the promotion

of safety, those prescribed by the act.’ Moreover,

the decision below, in permitting the courts to make

the decision as to the applicability of the Act on an

ad hoc basis depending largely on their concept of

danger, permits consideration of all sorts of cri-

teria other than the one fixed by the statute as in-

terpreted by the decisions of this Court, including

criteria rejected by this Court. The result of such

an interpretation must inevitably be confusion

and lessening compliance with the safety provisions

prescribed by Congress, a result which the decision

below itself demonstrates.

The decisions of this Court leave no room for the

ad hoc application of the statute and the resulting

confusion pictured by the court below. The stat-

ute speaks of ‘‘any train’, and the decisions o*

this Court have made clear what a train is. In

Louisville & Jeffersonville Bridge Co. v. United

States, 249 U.S. 534, which involved a company

engaged in operating only a terminal yard, this

Court pointed out the nature of the determination

to be made in these cases (p. 938) :

An engine and twenty-six cars, assembled

and coupled together, not only satisfies the dic-

tionary definition of a ‘“‘train of cars,’’ but

would certainly be so designated by men in

general and in any fair acceptation of the term

must be regarded as constituting a train within

the meaning of the statute. It was a train

greater in length than most regularly sched-

uled trains were when this Safety Appliance

Act was passed twenty-six years ago, and even

Sie RB BES teNyS ee

yet, probably, exceeds in length, passenger and

freight trains considered, more than a ma-

jority of the regular road trains in this coun-

try.

The work done with the cars, as described,

was not a sorting, or selecting, or classifying of

them, involving coupling and uncoupling, and

the movement of one or a few at a time for

short distances, but was a transfer of the

twenty-six cars as a unit from one terminal

into that of another company for delivery,

without uncoupling or switching out a single

car, and it cannot, therefore, with propriety

be called a switching movement. [Italics sup-

plied. ]

In United States v. Northern Pacific Ry. Co.,

254 U.S. 251, this Court disposed of the contention,

apparently pieced together from bits of incidental

language of earlier decisions, that if the movement

was not over a main line no ‘‘train’’ could be said

to be involved. Mr. Justice Brandeis, speaking for

a unanimous Court, said (at pp. 254-255) :

* * * Tf use of the road as part of a main

line were essential in order that operations on

it be controlled by the Safety Appliance Act,

the requirement would be satisfied in this case

* * * But there is nothing in the act which

limits the application of the provision here in

question to operations on main line tracks.

The requirement that train brakes shall be

coupled so as to be under engine control is in

terms (32 Stat. 943) applicable to ‘‘all trains

* * * [Transfer trains, like those here in-

volved, are ‘‘trains’’ within the meaning of

the act. A moving locomotive with cars at-

tached is without the provision of the act only

when it is not a train; as where the operation

is that of switching, classif™. 7 and assembling

cars Within railroad yards for the purpose of

making up trains.‘ [Italics supplied. ]

See also United States v. Erie R. R., 237 U.S. 402,

and United States v. Chicago, Burlington & Quincy

R.R., 237 U.S. 410, both clear holdings that ‘‘trans-

fer trains’’ taking groups of cars ‘‘as a unit’? (237

U.S. at p. 412) from one place of receiving, break-

ing-up, assorting, storing, and distributing, to an-

other, were subject to the safety requirement, since

their operation was for the transporting of a train

of cars and not for the distributing and assembling

which would alone be excepted from the brake re-

quirements.

This Court has thus laid dow» clear and simple

criteria of what constitutes the movement of a

train within the purview of the Safety Appliance

Act. The movement of an assembled group of cars

with an engine for an appreciable distance without

transferring or adding other cars is the movement

of a train for the purposes of the Act. The de-

‘It may be noted, as against further misunderstanding de-

rived from isolated verbiage, that this quotation does not take

a movement out of the status of being a train merely because

it is “within railroad yards” or is “for the purpose of making

up trains.” These are not substitutes or alternates for the

basic requirement for exemption that the operation itself be a

switching operation, since a train of cars hauled across the

country “for the purpose of making up trains” at a distant city

would nevertheless remain a train, and so, too, would a train

passing “within railroad yards.”

- ewe Fe Lode EN Degg RG Rina ATC ek Ae ON STR, RA MOTE. —

cision below, in holding that movements here in-

volved, i.e., 23 cars for over two miles, and 33 cars

for one and one-half miles, were not movements

of trains within the purview of the Act is clearly

contrary to the above-cited decisions of this Court.’

3. When the decision below is read in conjunc-

tion with the earlier opinion of the same court in

United States v. Elgin, J. & BE. Ry. Co., 182 F. 2d 1,

on which it largely relied, it is evident that the court

below thought that the Supreme Court cases re-

ferred to above were not controlling because in the

Elgin and the instant cases the movements were

within a single railroad yard. As we have pointed

out, the Second, Kighth and Ninth Circuits have

reached a contrary conclusion as to this. Further-

more, in the instant cases, that premise is not sup-

ported by the facts. The Chicago, Burlington, and

Quincy’s yards in Aurora, Illinois and Eola, Ili-

nois were connected by only narrow trackage, even

though no signs were posted establishing yard

limits between the two substantially separated

5In United States v. Erie R.R., 237 U.S. 402, 404, 406,

supra, each transfer train had about 25 cars and the distance

of the trips was from two to three and one-half miles. In

United States v. Chicago, Burlington, and Quincy Railroad,

237 U.S. 410, 411-412, the trains ranged from 36 to 42 cars

and the trips were about two miles; in Louisville & Jefferson-

ville Bridge Co. v. United States, 249 U.S. 534, 538, a 26-car

train moved about three-quarters of a mile; and in United

States v. Northern Pacific Railroad Co., 254 US. 251, 40-car

and 48-car trains moved four miles. :

The speed of the movement was not mentioned in the Chi-

cago, Burlington and Quincy opinion; it was noted in Ene,

Louisville & Bridge, and Northern Pacific, respectively, at

seven to eighteen miles per hour, up to 15 miles per hour, and

three to eighteen miles per hour.

ApS AL an OK ae ea bea Mahe Debit ek See MRD Nile lies CR ih Mea

yards and separate operations. Similarly, an ex-

amination of the Gulf, Mobile & Ohio’s Exhibits 14

and 15 will disclose that the sections respectively

labelled (and correctly so) as Venice Yard and

Brooklyn Yard are separate switching areas con-

nected by trackage apparently adapted for the

transfer of assembled groups of cars rather than

for assembling or breaking-down operations in

themselves. Moreover, the yard to which the Gulf,

Mobile & Ohio movement was directed was not even

one of Gulf, Mobile & Ohio’s yards, but that of the

Terminal Railroad Association of St. Louis and

was clearly connected only by a transfer track

(Gulf, Mobile & Quiney Exhibit 13; R. G. 43). We

believe the language of this Court in United States

v. Erie Railroad, 237 U.S. at p. 406 is clearly ap-

plicable: ‘‘They [the three yards] doubtless are

important accessories to the defendant’s eastern

terminal, but that does not make them one yard.

They lie from two to three and one-half miles

apart, are not so linked together that cars may be

moved from one to another with the freedom which

is usual and essential in intra-yards movements,

and are in actual practice treated as separate

yards.’’ ©

® The irrelevance of the factor of technical retention of the

operation within the nominal limits of a switchyard or lead

track is further illustrated by the facts of these cases. A

wreck in either of the narrower portions of the yards or lead

tracks could spill cars or wreckage onto outside territory or

main-line tracks, particularly in such a situation as that of

the Gulf, Mobile & Ohio, where the main-line tracks (see Gulf,

Mobile & Ohio Exs. 14 and 15) run immediately alongside

the tracks upon which the transfer trains operate.

CRI SRE OHER Panta Rel Baie nes

Lava

aint

base

In any event, neither the opinion below nor the

prior Elgin opinion treats the factor of movement

within a single yard as in itself sufficient to dis-

tinguish a train movement from a switching opera-

tion. Rather, the court below apparently consid-

ered the fact of transfer within a single yard as

bringing the cases within the ‘‘twilight zone”

which, in its view, necessitates consideration of the

many ‘particular facts’? in each case. Nothing,

however, in the opinions of this Court justifies the

substitution of the amorphous standard of the court

below for the clear and precise definition by this

Court of the unlimited statutory term ‘“‘train’’

merely because a single yard is involved.

The legislative history of the Act plainly shows

that a substantial purpose of the Act was not

merely to prevent wrecks but to preclude the neces-

sity of using brakemen atop the cars who were

required to man the hand-brakes due to the insuf-

ficiency of engine brakes to deal with a train of

an; length, particularly on a grade. (H. Rep. No.

1678, 52nd Cong., Ist sess., pp. 1, 3, 4-5; S. Rep.

1049, 52nd Cong., Ist sess., 29-31, 109-110.) Thus,

the simple standard of whether a number of as-

sembled cars drawn by one engine travels for an

appreciable distance is directly related to the dan-

ger which Congress was seeking to prevent.

4. Other factors given weight by the court below

have been treated as irrelevant by this Court. The

fact of passage over a main line was considered

significant by the court below in the Elgin opinion.

It characterized United States v. Northern Pacific

MERU RO RTO PT AE RR PM II NT NIE RO TE OIA R RIEL NEF RSNA

Ry. Co., 254 U.S. 241, as holding that the ‘‘transfers

* * * constituted main line transportation in the

meaning of the Act’’ (182 Fed. 1, 3), ‘‘whereas the

whole effect of the decision (see supra, pp. 14-15)

was to negate the necessity of main-line transpor-

tation to the definition of a ‘‘train.’’? The court be-

low in its recital of the facts also mentioned that

the cars involved carried no caboose or markers,

whereas this Court in the Chicago, Burlington &

Quincy case, 237 U.S. at p. 413, said:

* * * That [the trains] carried no caboose

or markers is not material. If it were, all

freight trains could easily be put beyond the

reach of the statute and its remedial purpose

defeated. Neither is it material that the men

in charge were designated as yard or switching

crews, for the controlling test of the statute’s

application lies in the essential nature of the

work done rather than in the names applied to

those engaged in it.

The court below also mentioned that switching

crews were used for the operation, that the move-

ments were not on a regular schedule, and that the

trains were under orders of yardmasters. The

opinions, in both Erie and Chicago, Burlington &

Quincy, supra, show that this Court was clearly

aware of the use of switching crews, and the ab-

sence of regular train markers, and was aware, in

those cases and Northern Pacific as well, that the

movements were not on a necessarily regular sched-

ule. The opinions in Frie, Louisville, and North-

ern Pacific also noted that the trains were under

orders of yardmasters, but ascribed no necessary

consequence to the fact that only switching opera-

tions and not trains could be put through a yard by

a yardmaster.

This consistent departure in detail from the hold-

ings of this Court is merely a reflection and neces-

sary consequence of the more basic departure from

the simple criteria established by this Court as to

what constitutes a train within the meaning of the

Act. The court below has substituted for the

simple, common-sense definition of train established

by this Court, a concept which requires in any

doubtful case the weighing of innumerable impond-

erables without any guiding standards, and leaves

‘the ultimate result largely dependent on the ap-

proach to the statute adopted by the individual :

trier of fact.

The practical effect on enforcement of leaving

‘such considerations to the courts is illustrated by

the course of opinions in the court below. In the

Elgin case, the court found no element of danger,

although the trackage involved crossed two private |

crossings at grade. Thereafter, faced with the in- |

stant cases, where, in the Chicago, Burlington case |

two public streets, one much traveled, were crossed, |

and in the Gulf, Mobile case a public highway was

crossed, the court still found no danger, apparently

because no accident had yet occurred. To permit

enforcement only after an accident on the particu-

lar stretch of track involved is hardly a proper

manner in which to construe an Act designed to

protect the public safety.

V8 SPELT CREPE RI Iie TT area SIRS IST ONY al ENC A ICAO Mn Ca AER NORE MRS ARR. ETT TRL SG Si i

hl i sl RL in OR. eA SE ally

CONCLUSION

That a law regarding the safety of railroad op-

erations has been given so nebulous a meaning in

a judicial circuit which embraces the important

railroad center of Chicago is in itself sufficient to

warrant the grant of certiorari in these cases. In

addition, unless the misinterpretation of the de-

cisions of this Court is corrected and the conflict

with the decisions of the Second and other Circuits

resolved, there is bound to be general confusion

among the circuits as to the applicability of the Act,

with consequent relaxation in compliance. The

problem involves no mere disagreement as to par-

ticular factual situations. It arises from a sub-

stantial misconception of the entire required basis

of decision.

It is therefore respectfully submitted that this

Court should grant the petition for writ of cer-

tiorari.

WatrTer J. CUMMINGS, JR.,

Solicitor General.

JANUARY, 1953,

* U. S. GOVERNMENT PRINTING OFFICE: 1983 230413 1003

ways

a ee

PTs aca tas

9 See INE

Sa 0

Siete iad

ors

Oi ee athe me

RAs Sate.

Lab

TN CNM

Sa ip ne SS an tS

phe vind scl ERNE A Ar

oa a )

IN THE

Supreme Court of the United States

Octroser Term, 1952.

No. 550

UNITED STATES OF AMERICA,

Petitioner,

vs.

CHICAGO, BURLINGTON & QUINCY RAILROAD

COMPANY anp GULF, MOBILE & OHIO RAILROAD

COMPANY,

Respondents.

RESPONDENT CHICAGO, BURLINGTON & QUINCY

RAILROAD COMPANY’S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI.

Expon Martin,

Joun L. Rice,

Anprew C. Scort,

Counsel for Respondent.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO

SCRE SESE ta eet ire TD ALES HONE EAS RTI

se ee — . ;

es soe, Rowe

Mea SESS

INDEX. p

PAGE y

Record Incomplete—Map and 9 Photographs Missing 1 2

Question Presented..........+-..eeeeeee reece eeeees 2 b

oe cc caawads orbs nahedeveusseecseseseess 3 ‘

Reasons for Denying Petition for Writ of Certiorari.. 4

This Court in Four Cases Has Determined the Prin-

ciples Governing the Use of Air Brakes Under the

Safety Appliance Act; and There Is Therefore no

Occasion to Grant Certiorari in This Case in Order to

Resolve a Supposed Conflict Between Circuits, In-

volving the Same Principles.........-----+--++++: 7

Petitioner Has Already Had Two Trials, in Both of

Which the Facts and Law Were Resolved Against It 10

ir Ste Er RSS

PASO HOW DAE

Bs '

g 4

Eta

CITATIONS.

Chicago, St. P., M. & O. Ry. Co. v. United States,

Rh. ie i Bs ice haa dbn ene yiaerrvuecues 11

Graver Mfg. Co. v. Lindy Co., 336 U. S. 271, 275...... 2, 12

Howard v. Chicago, Burlington & Quiney R. Co.

iS Fe ee Ee erry nmr 2

Illinois Central R. Co. v. United States, C. C. A. 8, 14

A Oe ck KEG TEE Rha eee Awe see eee ee 11

Louisville & J. Bridge Co. v. United States, 249 U. S.

ETRE Toa ieee Pas ae ONoE yf Bi cay taser ein 7,9

Sublette, et al. v. Servel, Inc., C. C. A. 8, 124 F. 2d 516,

UE WE hd 0s oR ERS Coe CAV OER Ie 2

United States v. C. B. & Q. R. Co., 237 U. S. 410...... 7,8

United States v. Erie Railroad Co., 237 U. S. 402.... 7,8

United States v. Great Northern Ry. Co., C. C. A. 9,

73 F. 2d 736, certiorari denied 295 U.S. 752........ 11

United States v. Northern Pacifie Ry. Co., 254 U. S.

SE hp ak hs nada eek EON Ce ho need tae een 7,9

United States v. Southern Pacifie Co., C. C. A. 9, 60

ie ies 6 Gbsos da OK eREKE Ooh 3 0 baeean en 11

United States v. Title Guaranty & Trust Co., C. C. A.

See Fs ek Ohad Res eeededesa cheenecerteen 2

Supreme Court Rule.

Supreme Court Rule 10, paragraph 3................ 2

Law Review Article.

‘*Denial of Certiorari Despite a Conflict,’? by Robert

L. Stern, 66 Harvard Law Review, pp. 465-472.... 12

IN THE

Supreme Court of the United States

Ocroper Term, 1952.

No. 550.

UNITED STATES OF AMERICA,

Petitioner,

vs.

CHICAGO, BURLINGTON & QUINCY RAILROAD

COMPANY ann GULF, MOBILE & OHIO RAILROAD

COMPANY,

Respondents.

RESPONDENT CHICAGO, BURLINGTON & QUINCY

RAILROAD COMPANY’S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI.

RECORD INCOMPLETE—

MAP AND NINE PHOTOGRAPHS MISSING.

Petitioner failed to include in the record in the Court of

Appeals and in this Court nine exhibits that were before

the trial court at the time the findings of fact were made.

Petitioner’s Exhibit 1 was a large map showing the switch

yards involved, together with the location of the various

industries, freight house, shops and location where cars

were assembled into trains at Eola (R. 13-15). This map

was referred to by the government witness (R. 17) and by

the court in connection with its analysis of the evidence

(R. 45),

Respondent’s Exhibits 1 to 8, inclusive, were a collection

of photographs showing the location of the switching lead

over which the switch movement in the Aurora-Kola yard

occurred, and also the complete isolation of this switch yard

from Respondent’s main line tracks by virtue of the high

fill on which the main-line tracks were located (R. 21-28).

Exhibit 6 also showed the excellent vi2w and the infre-

quency of travel over the only unprotected highway cross-

ing (R. 24).

Where petitioner seeks to review the trial court’s findings

of fact, and fails to produce all the evidence before the

trial court, especially where the omitted evidence consists

of a map and photographs which cannot be adequately

portrayed in the printed record, petitioner is not entitled

to have a second review of the trial court’s findings and

conclusions, particularly where the trial court and the

Court of Appeals have reached the same conclusion (St-

preme Court Rule 10, Par. 3; Sublette, et al. v. Servel, Inc.,

C. C. A. 8, 124 F. 2d 516, 517; United States v. Title Guar-

anty & Trust Co., C. C. A. 6, 133 F. 2d 990, 995; Howard v.

Chicago, Burlington & Quincy R. Co., C. C. A. 8, 146 F. 2d

316; Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275).

Accordingly, Respondent Chicago, Burlington & Quincy

Railroad Company respectfully moves that the petition for

certiorari herein be denied insofar as it seeks a review of

case No. 10617 in the United States Court of Appeals.

QUESTION PRESENTED.

Whether the movement of a locomotive and 23 freight

ears, for a distance of two miles, for the purpose of incor-

porating the cars into freight trains, involves a train

movement or a switching operation—(1) where the move-

ment is wholly within the switch limits of Respondents

Aurora-Eola freight yard (R. 22, 32, 44; Findings 9, 11 and

13, R. 48-49) ; (2) over a switching lead track not used by

main-line passenger or freight trains (R. 31-32) ; (3) where

the switching lead track does not cross or intersect the

tracks of any other railroad or the main line tracks of

Respondent (Plaintiff’s Ex. 1, omitted from the record,

R. 45); (4) where the switching movement does not exceed

ten miles an hour, the movement could as readily be con-

trolled by the locomotive power brakes as by the automatic

train brakes, and the automatic train brakes could not and

would not be used, if available, because it would result in

damaging the lading at such slow speeds (R. 31, 32, 33;

Finding 4, R. 48); (5) where the movement was under the

jurisdiction of a yardmaster and the operation was con-

trolled by switch crews (R. 22, 20, 44, 45; Findings 10 and

14, R. 49-50); and (6) where, for 45 consecutive years,

1907-1952, the movement had been so effectively controlled

by the locomotive power brakes that no one had ever been

injured (R. 30, 32-33).

STATEMENT.

Respondent invites the court’s attention to what it con-

ceives to be two erroneous statements contained in peti-

tioner’s statement. The judgment of the trial court was

based, in part, at least, on a finding that the movement from

the freight house tracks to the tracks where trains were

made up was within the confines of a single freight yard

(R. 44), and the court directed preparation of findings of

fact not inconsistent with the findings of the court con-

tained on pages 44-45 of the record (R. 45). The court’s

language with respect to this being a movement within a

single freight yard follows:

‘‘Here it was a movement of a locomotive and 23

ears by a yard crew, by means of a yard engine. They

had no caboose with them. They had no flags on their

engine or their last car to indicate the classification of

the train which was moving. * * * The movement was

ae itr ABR GIR SE TO A lage AA ESE I PN ADAGE LIB NREL A BEIGE ALE GALA DEOL GALL ay a 0 ae

within the limit of one yard * * * I don’t say that a

train may not move within one yard. Of course, it can,

But I say the fact that it was wholly within one yard

is a matter to be considered in determining whether or

not this was a train. The movement was wholly within

the Aurora-Kola yard.’’ (R. 44.) (Emphasis supplied.)

Inasmuch as the court’s judgment is obviously based, in

part, on the foregoing language, and as that language of

the court is supported by the testimony (R. 22, 31), it

would seem that the judgment ought not be impaired by

the statement in finding No. 3 that the movement occurred

between the freight house yard and the Eola train yard

(R. 47-48). Particularly where the foregoing languaye of

finding 3 also conflicts with findings 11 and 12 (R. 49-50),

wherein it is correctly stated that the movement began on

the freight house tracks (Cyclopedia Federal Procedure

(3rd Ed), Vol. 14, p. 182).

On page 6 of the petition, reference is made to finding

4 to the effect that the cars could be stopped as quickly

with the locomotive brakes as with the power brakes ‘‘ex-

cept in any emergency’’. While it is true that the quoted

language appears at the end of finding 4, there is no evi-

dence in the record to sustain this part of the finding. The

evidence was that the speed of the movement was so slow it

could be stopped as readily with the locomotive power

brakes as with the automatic air brakes, and that the auto-

matic air brakes would not be used if available because it

would result in rough handling of the lading (R. 31, 32, 33).

REASONS FOR DENYING PETITION FOR WRIT OF CERTIORARI.

At pages 9-20 of the petition, counsel argue the writ

should be granted because of an alleged conflict between

the decision herein (199 F. 2d 223) and a previous decision

of the Seventh Circuit (182 F’. 2d 1) with an earlier deci-

sion of the Second Circuit (168 F. 2d 948). Petitioner also

claims the Seventh Circuit has failed to heed decisions of

this court, and that that Cireuit’s decision herein conflicts

with previous decisions of the Eighth Cireuit (36 F. 2d 670

and 14 F. 2d 747) and the Ninth Cireuit (60 F. 2d 864).

Nevertheless, when counsel for petitioner was presenting

the same citations to the trial court in an effort to obtain a

judgment that the movement herein was a ‘‘train’’ instead

of a switching operation, he said:

‘‘T have cited various cases yesterday, and quoted

from the opinions thereof as to the various factors that

are considered in establishing this question and an-

swering the question whether this is a switching or a

train movement.

‘‘No single case can be designated as completely in

point, in that the factors or situations differ from case

to case; therefore, it is necessary to bring out factors

that have been determined by the various cases. (Km-

phasis supplied.)

‘*We have shown that the distance involved is not a

controlling factor * * * also the question will arise

whether the factor of switching tock place before the

movement starts, and did switching again take place

after the movement reached its destination. That

should be considered in determining this question. * * *

The speed of the movement is not controlling. * * * The

use of the main line is not essential to establish whether

the movement is that of a train or merely switching.

*** Tn all of these cases there is this similarity, how-

ever. The fact that switching crews have handled

these trains and in most cases the yardmasters have

had control of the movements * * *. So all of these

cases have come up on the issue of switch engines, and

switch crews can perform train movements as well as

switching movements. The use of that type of crew is

not controlling or guiding. * * *

‘‘The question of stopping and setting out cars dur-

ing some period from the beginning of the movement

complained of to the end has arisen in numerous cases.

*** Tn a number of cases, this factor was disregarded

MERE DAL ITED Mr SOL

ak tetas

PAW Liew BilEe a2 ays RY Tietiwe

to the extent that the entire movement was looked at

as a train movement.

‘“‘There has been some question in other courts, in

other jurisdictions, indicating that switching took place

which interrupted a train movement, therefore the

entire movement may have been regarded as switeh-

ing.’’ (R. 40-41.)

Respondent believes counsel for petitioner was correct in

advising the trial court that no previous decision of the

Supreme Court or of any Court of Appeals compelled a

decision herein that this was a train movement as distin-

guished from a switching operation. As counsel then

pointed out, each decision rests on its own peculiar facts.

If the word ‘‘train’’, as used in the statute, had been

given its ordinarily accepted meaning in the railroad in-

dustry, the problem presented would be readily solved by

simply differentiating the operations handled by train

crews from those handled by switch crews in the yards.

But the courts went further and construed the word

‘¢train’’ so as to include many operations, otherwise switch-

ing in character, on the theory that such operations in-

volved dangers that were sought to be eliminated by the

statute. This extension of the statute by means of judicial

construction has necessarily prevented the ruling in any

one case being wholly applicable to the facts in another

case. It was for this reason that counsel for petitioner

advised the court no previous decision was wholly in point.

For like reason, there can be no legal conflict between the

circuits.

This Court in Four Cases Has Determined the Principles

Governing the Use of Air Brakes Under the Safety

Appliance Act; and There Is Therefore No Occasion to

Grant Certiorari in This Case in Order to Resolve a

Supposed Conflict Between Circuits, Involving the Same

Principles.

The Government asks certiorari chiefly on the claims that

the holding of the Seventh Circuit below differs from that

of the Second, and that a decision of this Court is needed

to settle the difference. The fundamental error in this con-

tention is its disregard of the fact that the Supreme Court

already has enunciated the rules of construction and ap-

plication of the Air Brake Safety Appliance Act, rendering

further consideration unnecessary. The meaning and ap-

plication of the statute (45 U. S. C. A. Sec. 6) has been

before the Court four times:

United States v. Erie R. R., 237 U.S. 402.

United States v. C. B. & Q. R. R., 237 U.S. 410.

Louisville & J. Bridge Co. v. U. S., 249 U.S. 534.

United States v. Northern Pac. Ry., 254 U. 8. 251.

These decisions make plain that the question whether a

given movement of a locomotive and cars constitutes a

‘‘train’’ within the meaning of the Act, depends on the

‘nature of the work done’’ (Louisville, etc., 249 U. S. 534,

540). Thus, a ‘‘train’’ is not involved ‘‘where the opera-

tion is that of switching, classifying and assembling cars

within railroad yards”’ (Northern Pacific Ry., 254 U.S. 251,

254).

But, since work in and about yards and terminals em-

braces a multitude of varying circumstances, such as num-

bers of cars handled, distances moved, couplings and un-

couplings made, streets crossed, main tracks and switch

tracks used, speed employed, other movements encountered,

FSET RASS YGF LAS PE 2 alg ms aaa Pte i tas WEISER

pre ces

Lan.

eae Ase RT ge SE ee

and so on, the question whether a given operation falls

outside the domain of switching and constitutes a move-

ment requiring air brakes as a ‘‘train’’ is one of fact, the

Court in effect rules, to be determined in each case on its

own evidence. To achieve the safety which this statute was

designed to secure, this Court, in settling such question of

fact in each case before it, has minutely inquired into the

circumstances of the operation to see what the hazards and

dangers were, in view of the character of the movement

made.

Thus in the Erie case, 237 U. S. 402, 405, 406, 408, the

Court was at pains to point out and consider the facts that

the movement was of twenty-five cars, for three and one-

half miles, at speeds from seven to eighteen miles an hour,

between separate yards, over main line tracks used by

other trains, through nearly a mile of very dark tunnel,

over several switches leading to other tracks, and across

other tracks at grade used daily by approximately thirty-

five trains. Faced with these hazards, the Court concluded

the movement was one requiring the safety of air brakes,

and, therefore, one to be treated as a ‘‘train’’.

Again in the C. B. & Q. case, 237 U. S. 410, 411, 412, the

Court deals at length with the facts of hazard, reciting that

the three movements involved consisted of forty-two, thirty-

six and thirty-nine cars, between yards two miles apart,

lying on opposite sides of the Missouri River, connected by

main line tracks, 3,000 feet of which was single track on

the bridge and used by trains of the Rock Island, Wabash

Railroads, as well as those of the C. B. & Q., and that off the

bridge the tracks used passed through the tracks of the

Union Depot, and intersected at grade twelve or fifteen

tracks of other companies. Following the Erie decision,

this Court held that the hazard and nature of the work done

were such as to bring the operation within the purview of

the air-brake provision.

In like manner in the Louisville and Jefferson Bridge

case, 249 U. S. 534, 537, 538, in deciding the question of

fact of ‘‘the essential nature of the work done’’, the Court

inquires with detail into the evidence and points out that

twenty-six cars were transferred three-fourths of a mile

from one terminal into that of another company, moving

part way along a main line, over connections with other

tracks on which other engines and crews must have been

working habitually, across four city streets at grade—one

at fifteen miles per hour; that on leaving defendant’s yard

the group of cars entered upon a track of the Illinois Cen-

tral used by the Big Four and Chesapeake & Ohio as main

line; and that the movement was a back-and-forth opera-

tion, crossing three of the streets once, two of them twice,

and one four times. On these facts the Court held that air

brakes should have been used in order to secure the safety

which it was the purpose of the Act to provide.

In the Northern Pacific decision, 254 U. 8. 252, 253, the

two movements involved were of forty and forty-eight ears

for four miles between Rice’s Point and Furnace. In de-

ciding whether air brakes should have been coupled, the

Court details the following additional facts as ‘‘material’’.

Two segments of the run aggregating more than a mile

were on single track; two streets were crossed at grade,

one of which carried streetcars; five tracks of three inde-

pendent railroad companies were crossed on which freight

and passenger trains were operated ; two other independent

companies use about a mile of this road as a freight line to

piers between Rice’s Point and Furnace. At the two inter-

mediate points of Berwind and Boston, cars are frequently

picked up and set out on, respectively, tracks nine and six.

Reviewing all these facts and citing the C. B. & Q. decision

as to hazard, the Court held that power brakes should have

been employed.

This review makes plain that the Supreme Court already

has fully set forth the guiding principles for determining

when a given operation exceeds switching, classifying and

assembling cars for the purpose of making up trains and

becomes a movement requiring use of brakes to obtain the

safety aimed at by Congress.

As the opinions of the Court demonstrate, these princi-

ples are that (1) the facts of each case must be examined

by the trial court to ascertain ‘‘the essential nature of the

work done’’; that is, whether the same was switching,

classifying or assembling cars, or something beyond that;

and that (2) as an aid to reaching the answer to such

inquiry, the hazards are to be looked to, in order to see

whether in view of all the circumstances of the particular

case air brakes were needed to provide the safety Congress

sought. These principles have been so clearly and re-

peatedly set forth in the four decisions rendered that it

would seem wholly unnecessary, and indeed a waste of the

Court’s time and energy, to grant certiorari in order again

to repeat these rules. The lower Courts already have had

the path laid out for them.

Petitioner Has Already Had Two Trials, in Both of Which

the Facts and Law Were Resolved Against It.

If a train movement be viewed in the commonly-accepted

meaning of the term in the railroad industry, there can be

no question but what the movement involved herein is a

switching movement and not a train operation. The move-

ment occurred wholly within the Aurora-Kola freight yard,

was under the jurisdiction of a single yardmaster, was

wholly manned by switch crews, switching occurred at both

the beginning and the termination of the movement, and

the purpose of the movement was to move the cars from the

freight house tracks to the point where they would be in-

corporated into outgoing trains (R. 44-45; Findings 11 and

’

Sig A ag te pee “ We es PRAT AS RS ATS a a tr RT oh Norm Dn Sh ts igen s Meanie 92s eee a

a wk cass 6 OPAC AE RIES SE Re PAIGE ee TRB BES EME NELLA LIERE ARAL LAER ALS DEERE SH REMG SNA AOE A NN RA TER IY

13, R. 49-50). Under similar circumstances, the Court of

Appeals for the Ninth Circuit in United States v. Great

Northern Ry. Co., 73 F. 2d 736, declined to permit the gov-

ernment to isolate the switching movements at each end so

as to convert the intermediate switching operation into a

train movement. Moreover, this court declined to grant a

petition for certiorari, although practically everything said

herein as a basis for granting the writ could have been said

as a basis for granting the writ in the foregoing decision

by the Ninth Cireuit. That is to say, it could have been

said that the opinion of the Ninth Cireuit in 73 F. 2d 736

was in conflict with United States v. Southern Pac. Co., 60

F. 2d 864 (C. C. A. 9); Chicago, St. P., M. & O. Ry. Co. v.

United States, 36 F. 2d 670 (C. C. A. 8), and Illinois Cen-

tral R. Co. v. United States, 14 F. 2d 747 (C. C. A. 8), as

petitioner has claimed with respect to the decision herein

of the Seventh Circuit at pp. 11-12 of its petition.

But this court should deny the petition herein for the

same reason that it was denied in United States v. Great

Northern Ry. Co., C. C. A. 9, 73 F. 2d 736, certiorari denied

295 U. S. 752, because the determination of whether or not

any given switching movement should be treated as a train

movement involves the weighing and considering of a multi-

tude of facts and details which not only vary from ease to

case, but which necessarily limit the application of any

final determination in any particular case.

Where a plaintiff has enjoyed the benefit of two trials on

the facts and the law, and has lost both trials, and where

petitioner has brought up an incomplete and unsatisfactory

record for review, it would hardly appear to be appropriate

for this court to issue the writ for the purpose of according

a third trial on the facts and the law. As this court has

said ‘‘A court of law, such as this court is, rather than a

court for correction of errors in fact finding, cannot under-

take to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional

showing of error. Goodyear Tire & Rubber Co. v. Ray-0-

Vac Co., 321 U. 8. 275; District of Columbia v. Pace, 320

U. S. 698; Williams Mfg. Co. v. United Shoe Machinery

Corp., 316 U. 8. 364; Baker v. Schofield, 243 U. S. 114, 118.”

(Graver Mfg. Co. v. Linde Co., 336 U. S. 271, at 275.)

There would appear to be special merit in applying the

foregoing principle herein where the switching operation

involved has been continuously performed for a period of

45 years without anyone’s having sustained physical injury

of any kind or character (R. 30, 32, 33). Even if there

were a conflict between the circuits, the problem is not suff-

ciently important to grant the petition (see ‘‘ Denial of Cer-

tiorari Despite a Conflict,’’ by Robt. L. Stern, 66 Harvard

Law Review 465-472). |

Respondent respectfully submits the petition for a writ of

certiorari herein, insofar as it relates to the record below —

in case No. 10617, should be denied.

Respectfully submitted,

Epon Martin,

Joun L. Rice,

Anprew C. Scort, |

Counsel for Respondent.

Uiice - SUBTeme UO

pee een ee oe

FER 16 1

tian ~ Ay -

_No. 5 50

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

UNITED STATES OF AMERICA,

Petitioner,

versus

CHICAGO, BURLINGTON & QUINCY RAILROAD

COMPANY AND GULF, MOBILE & OHIO RAIL-

ROAD COMPANY.

SEPARATE ANSWER OF RESPONDENT, GULF, MO-

BILE AND OHIO RAILROAD COMPANY, TO PETI-

TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT.

Epmunp Burks,

Louis F. Guiespm,

Freperick H. Stone,

508 Reisch Building,

Springfield, Illinois,

Cuaries F. Turner,

104 St. Francis St.,

Mobile, Alabama,

Attorneys for Respondent,

Gulf, Mobile € Ohio

Railroad Company.

———————————E——EEE>oIllUylyIii))ly])y)y)y))))]]]]] _ [===

> ecvnere @ BARNES, PRINTERS, SPRINGFIELD, ILL.

INDEX

Page

ID 5 oy Gas 8 ak ae ke he be 1

PES Sc VaknveCneces kes haksanineeaea wine ees 4

SUMMARY OF ARGUMENT

The Courts below considered and applied the law as

heretofore construed by this Court in reaching

Sn: EOE srrcescg ous ewireueces ile eweeaes 4-8

An analysis distinguishing each of the cases from

other Courts of Appeals, cited by Petitioner.... 8-9

Each case must be governed by the facts before the

SD 65:5 WSK ESA Ta LEED TIA a ees 9-10

Reasons in opposition to granting the Writ........ 10-11

TABLE OF CASES

Chicago & Erie R. Co. v. United States, 22 Fed. 2d 729 11

Chicago, St. P., M. & O. Railway Company v. United

oe ee ey ern 8

Illinois Central R. Co. v. United States, 14 Fed.

Ne eats (nw i 5 dane REESE CRRA RRR) 8

Louisville & Jeffersonville Bridge Company v.

United Gtates, 240 U. &. G34 oo. ove ccc enecnces 4,5

United States v. Chicago, Burlington & Quincy

Railroad Company, 237 U.S. 410 .............. 4,5

United States v. Elgin, J. & E. Ry. Co., 182 Fed.

SRR ALA aa AM eee canes Fee 4, 8,10

United States v. Erie Railroad Company, 237

eR Rey enon aentimanias 4,5, 7,9, 10

United States v. Northern Pacific Railway Company,

PEE OE Vis Vidss ss ceycneeneceseadeuteas 4,6

United States v. South Buffalo R. Co., 168 Fed.

i EE ka 50s dh ye her Rae es Mewes teeeea eee 10

United States v. Southern Pacific Co., 60 Fed. 2d. 864 8

— epee RIMES PORE : Soni

. ~_ aa STEM. PPE ERI RIT mrt whee Nag Ode 1 BT ER ER AA at _ eS RS PHOT HD

ne . : ¥ sete ae

x é

No. 550

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

;

“«~

;

UNITED STATES OF AMERICA,

Petitioner,

versus

CHICAGO, BURLINGTON & QUINCY RAILROAD

COMPANY AND GULF, MOBILE & OHIO RAIL-

ROAD COMPANY.

SEPARATE ANSWER OF RESPONDENT, GULF, MO-

BILE AND OHIO RAILROAD COMPANY, TO PETI-

TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT.

STATEMENT

The statement, by Petitioner, relating to the Respondent,

Gulf, Mobile and Ohio Railroad Company, omits several

salient facts which appear to have been quite persuasive

upon the lower courts in reaching the conclusion that only

a switching operation was involved, which we here supply:

The movement, in question, took place in the yards of

the Respondent, located at Venice, Illinois. It con-

tained numerous tracks for the conduct of its switching

operations and was made up of three subdivisions

which included the Venice Yard on the North, the Brook-

lyn Yard, adjacent to it on the South and the Middle Yard,

which was adjacent to, and South of the Brooklyn Yard.

(R. G. 16.) The Venice Yard is a classification yard and

the Brooklyn Yard is where the Respondent accepts de-

liveries and makes up trains, and the same is true of the

Middle Yard. (R. G. 23.) The particular movement, of

which complaint was made, consisted of thirty-three

freight cars from the Venice Yards through the Brooklyn

Yards to the South end of the Middle Yard, a distance of

one and one-half miles. (R. G. 9, 26.) In routing this

particular movement the yardmaster does and may send

it over any one of fifteen tracks in the Brooklyn Yard.

(R. G. 31.) The movement is not made on any regular

schedule and is only made when there are enough cars to

warrant the use of an engine and crew to make the trans-

fer. The movement, complained of, was drawn by a switch

engine on December 4, 1950, and did not move under any

train orders, (R. G. 18), but was entirely a yard move-

ment. (R. G. 19.) Jt was stipulated that this movement

was within yard limits and under yard rules. (R. G. 19.)

While it is true there was no finding that there was any

communication from the yardmaster during this particular

movement, the trial Court did find that the Respondent’s

operations in the yards, including the movement com-

plained of, and all similar movements, were carried on

under the supervision of a yardmaster located in a tower

in the yards who had visual control of the movement, and

throughout the yards there was an intercommunication

system which permitted him to constantly control it.

(Finding No. 3, R. G. 41.) The cars that were included

in this particular movement came to the Venice Yards

from four separate freight trains that had terminated in

the Venice Yards and were designated for other railroads,

(R. G. 35), and they were transferred by this movement

to the Terminal Railroad Association within yard limits.

(R. G. 19.) The cut of cars was assembled not over forty

or fifty feet North of a public highway, having a crossing

watchman, with the engine thirty to forty feet from the

edge of the pavement, before it started the movement

across the paved street, and it moved at the rate of approx-

imately three miles per hour. (R.G. 19.) It did not cross

any other highway and did not cross the line of any rail-

road, nor did it cross the main line of the Respondent.

(R. G. 20.)

| 2G

ARGUMENT

We do not believe that the Court of Appeals for the

Seventh Circuit has reached opposite results from other

circuits in cases with similar facts, as is contended by Pe-

titioner. Upon examination of the record in this cause and

the opinion below, it is apparent that the Court of Appeals

gave consideration to, and followed, four decisions of this

Honorable Court construing the application of the Safety

Appliance Act. In the instant case the Court of Appeals

relied upon its previous decision in United States v. Elgin,

J. & E. Ry. Co., 182 F. 2d 1. In the latter case the Court

considered the four cases relied upon so heavily by the

Petitioner herein, which were United States v. Erie Rail-

road Company, 237 U. S. 402, United States v. Chicago,

Burlington & Quincy Railroad Company, 237 U. 8. 410,

Louisville & Jeffersonville Bridge Company v. United

States, 249 U.S. 534, and United States v. Northern Pacific

Railway Company, 254 U.S. 251.

The air brakes law was obviously passed by Congress to

provide for the safe control of a train, as it is a matter

of common knowledge that in the ordinary train movement

a number of hazards are encountered which may require the

sudden use of brakes which can only be effectually applied

by air, under the control of the engineer and that, con-

versely, no such occasion, requiring air brakes, arises in

the ordinary switching movement. These hazards have

been considered in other opinions and include the crossing

of highways, both public and private, the crossing of main-

lines of other railroads, the running upon the mainline

tracks of railroads, the operation at great distances where

there is no visual supervision or control other than that

of the train crew, and operations at high speed.

SERMON ERIT HE A INNA AS SSE Re SOA RA IA Se EE

5 »

This Court in United States v. Erie Railroad Company, :

237 U, S. 402, 407, construed the Safety Appliance Act when é

it stated that a train movement is within the operation of :

the Air Brakes Act and that a mere switching movement is iy

not.

In that case it was found that the movement was that of ;

a train because it used mainlines as other trains and was &

exposed to hazards which made it essential that appliances

be at hand for readily checking and controlling the move-

ment.

In the same year that the Erie Case was decided, this

Court in United States v. Chicago, Burlington & Quincy

Railroad Company, 237 U. S. 410, found that a movement

of approximately two miles across a single track bridge

spanning the Missouri River, intersecting at grade 12

or 15 tracks of other companies, passing through the Union

Depot tracks and upon the same line, which passenger

trains and freight trains of other railroads used, was a

train movement within the meaning of the Act. The

Court, in finding this to be a train movement, again con-

sidered whether or not the hazards usually found in con-

nection with train movements were present, and the Court,

finding that the hazards common to train movements were

present, held that the Safety Appliance Act applied.

;

In Louisville ¢ Jeffersonville Bridge Company v. United

States, 249 U.S. 534, the Court again considered the haz-

ards common to train movements in finding that a move-

ment of a train of cars of 1100 feet in length for a distance

of three-quarters of a mile crossing at grade, three city

streets, two of them twice, one of them three times, a

main track movement of 2600 feet with two stops and

starts on the main track, was a train movement within

the meaning of the Act. The train moved at a speed of

15 miles per hour.

a —_ ham igh 2 eo < sp — _— . 1 Oke tinne ane Qeeaend

In Umted States v. Northern Pacific Railway Company,

204 U.S. 251, the Court, in finding a train movement was

involved, said, at page 253:

‘*These additional facts are material: The road for

a distance of a mile at the beginning and for less at

the end is single track. It crosses at grade two streets

on one of which run street cars. It crosses at grade,

at five places in all, lines of three independent rail-

road companies which run freight trains to piers situ-

ated between Rice’s Point and Furnace. One of these

companies also runs passenger trains across defend-

ant’s tracks. In addition, two other independent com-

panies use, under the usual traffic-right agreements,

about a mile of this railroad as a part of their freight

lines to piers situated between Rice’s Point and Fur-

nace.”’

* * * * *

‘Not only were these (the defendant’s) trains ex-

posed to the hazards which that provision was intended

to avoid or minimize, but, unless their engineers were

able readily and quickly to check or control their move-

ments, they were a serious menace to the safety of

other trains which the statute was equally designed

to protect.’’ (p. 254)

This Court has stated in the foregoing cases that the

controlling test of the statute’s application lies in the es-

sential nature of the work done, and the Court has, in de-

termining the character of a particular movement, consid-

ered whether it had the hazards common to a train move-

ment, which the statute was designed to control, namely,

whether or not the movement was such that there were

hazards that would require immediate application of ef-

fective brakes which could only be done by air in charge

of the engineer.

In the instant case, the movement started 50 feet from a

public highway crossing, which was protected by a cross-

ing watchman, and crossed the highway at the rate of

3 miles per hour, did not touch the main line track of any

railroad, and proceeded along one of 15 different switching

tracks, according to the directions of the yard-master. Af-

ter crossing the highway, the movement proceeded at ap-

proximately four to five miles per hour and covered the

distance of approximately one and one-half miles within

the yards, consuming the time of thirty-nine minutes, the

entire movement being under the supervision of a yard-

master in a tower in the yard, who not only had visual

supervision of the movement throughout the yard, but who

had control of the movement through an interecommuni-

cation system which allowed him to page the switching crew

by means of loud speakers on tall poles spaced throughout

the yards. There was also provided means of talk-back

whereby any member of the switching crew from short

intervals along the tracks could talk back to the yard-

master. The movement was a result of four freight trains

terminating in the yards of the Respondent, the cars in-

volved being destined for various railroads, but being

switched by the Respondent upon switching tracks to the

adjoining yards of the Terminal Railroad Association,

but yet witihin yard limits. (R. G, 41-42.) The very pur-

pose of the Respondent’s yards was to receive and break

up trains for further transfer of cars and to make up

trains to be dispatched along the road. No trains, either

passenger or freight, passed through the Defendant’s yard.

This Court, in United States v. Erie Railroad Company,

237 U.S. 402, 408, has defined this to be a switching move-

ment, in the following language:

‘But it is otherwise with the various movements

in railroad yards whereby cars are assembled and

coupled into outgoing trains, and whereby incoming

trains which have completed their run are broken up.

These are not train movements, but mere switching

TARR ath RL ET Mee ROT ey

i ag ELE Ne NA ASH eS Wanye een

operations, and so are not within the air-brake pro-

vision.’’

We submit that the Court below followed this language

in reaching its decision in United States v. Elgin, J. & E.

Ry. Co., 182 Fed. 2d 1, and in the instant case.

Although the Petitioner (Petition, p. 12) states that it

is apparent that the Safety Appliance Act is not being

applied to railroads in the Seventh Circuit, the opinions

rendered in the Seventh Circuit not only show this state-

ment to be untrue, but that the Seventh Circuit has given

careful consideration to the Safety Appliance Act and the

decisions of this Court construing it.

A few excerpts from the opinions rendered in safety

appliances cases from the several circuits show that any

diversity in their conclusions arises from the facts rather

than any misapplication of the law:

United States v. Southern Pacific Co., 60 F. 2d. 864,

865, (CA 9): ‘‘8 city streets are crossed at grade.’’

Chicago St. P.,M. € O. Railway Company, v. United

States, 36 Fed. 2d. 670, (CA 8): ‘‘Four city streets

used by the public were crossed, and two tracks of

other railroads, not used for main line traffic, were

crossed.”’

Illinois Central R. Co. v. U. 8. (8th Cir.), 14 F. 2d

747: (p. 748) ‘‘* * This movement was through the

business or warehouse part of the City. * * * The plat

shows that this particular track intersects at grade

Nicholas and Fourteenth streets, much used by trucks

and other traffic; that Webster and Cass streets, used

by employees of the Union Pacific Railroad going to

and from the railroad shops, were crossed at grade,

as well as some switch tracks of the Chicago & St. Paul

Railroad at Fourteenth street, and the Missouri Pacific

tracks at California street; also that a portion of this

cages” . ’ x saith Te ee pe TT wie 7 nif alabene ‘ eneaeednaen

track between Webster and California streets was

jointly used by defendant and the former road.’’

(P. 749) ‘** * The streets of a busy city and tracks

of other railroads were crossed at grade, and there

was ever present the probability that the train might,

at any time, have to be stopped suddenly to avoid an

accident. This could not be done without the use of

train brakes. There was a serious danger, not only

to the crew of this particular train, but to the public

and other trains and employees as well, which it was

the object of the law to minimize as far as possible.

‘«** * As we have already shown, this so-called

Grace street yard was divided into two sets of switch-

ing tracks, a considerable distance apart, and con-

nected by a single lead track, from which the public

was not excluded. This part of the yard, at least, was

used by other railroads, and was not the private prop-

erty of the plaintiff in error.’’

We submit that the movement, in question, was a mere

switching operation within the language of this Court as

set forth in United States v. Erie Railroad, 237 U. S. 402,

408 and that each case must be decided upon the factual

situation before it, in the light of the rules laid down by

this court; that if the several circuits have reached differ-

ent conclusions that it is because of the difference in the

facts before them rather than a difference of opinion as

to the applicable law and that so long as the courts consider

the essential nature of the work done that their conclusions

will be governed by the facts before them in each case that

is presented.

The Respondent, GULF, MOBILE AND OHIO RAIL-

ROAD COMPANY, cannot agree with the contention

of the Petitioner that the law regarding the safety of rail-

road operations has been given a nebulous meaning in the

Seventh Circuit, or that the fact that the Seventh Circuit

embraces the railroad center of Chicago, in itself is suffi-

cient to warrant the grant of certiorari in this case. An

examination of the decisions of the several circuits will

disclose that the diversity of their opinions as to what are

train movements arises, in each instance, out of the dif-

ference in the particular factual situation under consid-

eration rather than any misconception of the law. We be-

lieve that the facts of each case must govern the Court

in determining what may be a train or a mere switching

operation. The opinion of the Second Circuit in the case

of United States v. South Buffalo R. Co., 168 Fed. 2d 948,

upon which Petitioner heavily relies, discloses a situation

wholly unlike that presented in the instant case. The facts

which distinguish it are stated as follows: (950)

‘«* * This crossing was protected by a guard and was

used by employees and business visitors of that com-

pany but there was uncontradicted evidence that a

considerable number of people crossed the tracks there,

particularly at the beginning of the morning and at

the end of the day when the plant closed. There is

further evidence by an inspector of safety appliances

for the Interstate Commerce Commission who had

had thirty-two years railroad experience, that there

was grave danger in moving these cuts of cars over

the grades involved in the movements without hav-

ing the air brakes hooked up. * * * *”?

In the case of United States v. Elgin J dé E Ry. Co., 182

Fed. 2d 1 (CCA 7), and in the instant case, there was no

evidence tending to show any such hazards as were present

in the South Buffalo case and the Seventh Circuit in apply-

ing the law laid down in United States v. Erie R. R. Co.,

237 U. S. 402, 408, properly found that there was no train

movement involved within the meaning of the Act. There

was not involved any grade, in the instant case, over which

the movement, in question, passed, nor was there present

a situation similar to that of the South Buffalo case. Had

-_— eR ee eee ee aoe

there been, the Seventh Circuit would, undoubtedly, have

reached the same conclusion as the Second Cireuit in find-

ing that a train movement was involved. We desire to

point out that the Seventh Circuit had no hesitancy in find-

ing that a train movement was involved under more com-

pelling facts in the case of Chicago & Erie R. Co. v. United

States, 22 Fed. 2d 729. The decisions of the several cir- i

cuits are based upon the factual situations before them 4

and they are not in conflict with each other as to the law. i

There is, therefore, no need for this Court to again con- by

sider the air brake sections of the Safety Appliance Act. ¢

In omitting any definition of a ‘‘train’’ in the enactment Z

of the Safety Appliance Act, Congress clearly recognized

that the application of the air brake provisions would in &

every instance be dependant upon the facts, and intended

that it should be.

CR.

For the reasons above set forth it is respectfully sub-

mitted that this Court should deny the petition for writ

of certiorari.

Respectfully submitted,

Epmunp Burkg,

Louis F’. GruesPte,

Freperick H, Stone,

508 Reisch Building,

Springfield, Illinois,

Cuaries F. Turner,

104 St. Francis St.,

Mobile, Alabama,

Attorneys for Respondent,

Gulf, Mobile € Ohio

Railroad Company.

Pea san we i SE ey rR es KANNAN St AE A TENE I MAN RI Ci ee |

;

Inthe Supreme Court of the Bnited States |

OcToBER TERM, 1952 ‘

No. 550 :

UnitTep STATES OF AMERICA, PETITIONER

v. i

CuicaGco, BURLINGTON & QUINCY RAILROAD

CoMPANY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

The respondent, Chicago, Burlington & Quincy :

Railroad Company, opens its brief in opposition

with an objection to the failure of the Government F

to include in the record nine exhibits. The first of

these (Pet.’s Exh. 1, R. 18) was a large map of the :

trackage involved. The other eight exhibits (Re- 5

spondent’s Exhs. 1-8, R. 22-25, 28) were photo- E

graphs of the track. Upon receiving the brief in

opposition, petitioner wrote respondent, offering to

stipulate that the documents in question, which had

not been certified to the court of appeals, be treated

as part of the record in the Supreme Court. Re-

spondent’s counsel has declined so to stipulate,

(1)

though forwarding the photographic exhibits, and

stating that he is ‘‘ willing that you make any use

of same to which you are entitled under the law

and the Federal rules.’’ Copies of this correspond-

ence are on file with the Clerk.

It appears that the map, although never for-

mally introduced in evidence (having been marked

only for identification, R. 13), was used as the

basis for the examination of the witnesses during

the trial (R. 13-17), and indeed was referred to

and relied upon in the district court’s opinion (R.

45). Since the district court, with the obvious

consent of the parties, took notice of the map, even

though it was not introduced in evidence, the ap-

pellate courts are, we submit, entitled similarly to

take judicial notice of it. The map accordingly is

filed herewith for such use as the Court may feel to

be appropriate.

Although the map is extremely bulky and cum-

bersome, we hope the Court will examine it, for

it shows—much more effectively than can any de-

scriptive statement such as is found in the petition

for certiorari—that the track in question (the red

line) is a single track, paralleling three main

tracks, between two areas containing large num-

bers of tracks which would commonly be called

yards. This shows that the case is indistinguish-

able from United States v. Southern Pacific Co.,

60 F. 2d 864 (C. A. 9), certiorari denied, 287 U. 8.

667 ; Chicago, St. P., M. & O. Railway Co. v. United

States, 36 F. 2d 670 (C. A. 8); and Illinois Central

R. Co. v. United States, 14 F. 2d 747 (C. A. 8),

— . - 7 . nal -_ aes xa eae

NEPA LIM TDS EP OLLI EINES PEL ON ERE IRE SAEED HE REN PDI IOI ME EMAILS EOE PRIA -— S

-certiorari denied, 273 U. S. 752, cited on page 11 of

our petition as being in conflict with the decision

of the court below.

We also are filing herewith the eight photo-

graphic exhibits introduced by the respondent

which neither party sought to have certified to the

Court of Appeals.

Respectfully submitted,

/ phe of x. .

Acting Solicitor General.

Marcu 1953.

VY U. S. GOVERNMENT PRINTING OFFICE: 1953 244241 1234

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.