Petition for Writ of Certiorari — New York, New Haven & Hartford Railroad v. Zermani

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Sebject Index.

PETITION

Summary and short statement of matter involved

Jurisdictional statement

Questions presented

Reasons relied upon for allowance of the writ

BrieF

Opinion of courts below

Grounds on which jurisdiction of the Supreme Court

of the United States is invoked

Statement of the case

Specifications of errors

Summary of argument

Argument

Conclusion

Table of Authorities Cited.

CasEs.

Alaska Pacific Salmon Co. v. Reynolds Metals Co.,

163 F. (2d) 643

Alcara v. Jean Jordeau, Inc., 138 F. (2d) 767

Bailey v. Central Vermont Ry., Inc., 319 U.S. 350,

87 L. Ed. 1444

Blair v. Cullom, 168 F. (2d) 622

Brady v. Southern Ry. Co., 320 U.S. 476, 88 L. Ed.

239

Central Dispensary & Emergency Hospital v. Har-

baugh, 174 F. (2d) 507

Oona ew — -

19

EASTGATE A EN NOOR FU CRN NN LIE TINS

ii AUTHORITIES CITED

Coray v. Southern Pacific Co., 335 U.S. 520, 93 L. Ed.

208 18, 19

Green v. Reading Co., 183 F. (2d) 716 2, 20

McDonald v. Jarka Corp., 144 F. (2d) 53 20

Moreau v. Pennsylvania R. Co., 166 F. (2d) 543 2, 20

Owens v. Union Pacific R.R. Co., 319 U.S. 715, 87

L. Ed. 1683 3

Pacific Greyhound Lines v. Zane, 160 F. (2d) 731 19

Rosenfeld v. Curtis Publishing Co., 163 F. (2d) 660 21

Smith v. Gay, 190 F. (2d) 719 2, 20

Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54,

87 L. Ed. 610 3

Williams v. Powers, 135 F. (2d) 153 20

Wright v. Farm Journal, 158 F. (2d) 976 2, 20-

SraTuTes.

28 U.S.C. sec. 1254, Act of June 25, 1948, c. 646, 62

Stat. 928 3,8

Federal Employers’ Liability Act, 45 U ‘3.0. sec. 51,

Act of April 22, 1908, c. 149, sec. 1, 35 Stat. 65;

Aug. 11, 1939, e. 685, sec. 1, 53 Stat. 1404 3, 8, 18, 19

Federal Rules of Civil Procedure

Rule 51 2, 4, 6, 7, 8, 13, 14, 15, 20, 21, 22

Rule 61 4, 6, 8, 13, 14, 19, 22

Supreme Court of the United States.

OcroBer Term, 1952.

No.

THE NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY,

Petitioner,

Vv.

ELLEN E. ZERMANI, ADMINISTRATRIX,

Respondent.

PETITION FOR CERTIORARI.

The petition of the New York, New Haven and Hartford

Railroad Company respectfully shows:

Summary and Short Statement of Matter Involved.

The United States Court cf Appeals for the First Cir-

cuit, in a case arising under the Federal Employers’ Lia-

bility Act and involving issues of negligence and of

proximate causation which could not be taken from the

jury, held that, even if the trial judge omitted entirely to

instruct the jury on the law of proximate causation, such

an error would not harm the defendant and petitioner

(hereinafter called the Railroad) against whom the jury

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returned a verdict of $141,500. The Court of Appeals fur-

ther held that, even if the Railroad was harmed by such

error, the Railroad could not complain, because, after coun-

sel for the Railroad had requested the trial judge to amend

his jury charge by including instructions on proximate

cause, and after the trial judge refused on the ground that

he had already given such instructions, counsel for the

Railroad did not respond to or comment further on the

trial judge’s refusal. The Court of Appeals construed

Rule 51 of the Federal Rules of Civil Procedure as requir-

ing such a response or comment.

The Railroad contends that the respondent and plaintiff

(hereinafter called the administratrix) made out a prima-

facie and forceful case below against the Railroad on two

among several accusations of negligence, but that no act

by the Railroad was necessarily a proximate cause of the

harm as a matter of law. Therefore it was vital to the

Railroad that the jury be instructed on proximate cause.

The Railroad further contends that the appellate court’s

construction of Rule 51 encourages disrespect by counsel

to the United States District Court, requires trial counsel

to argue with a trial judge to protect his client’s rights, is

unreasonable, and is basically unfair to the Railroad. This

holding of the Court of Appeals is in conflict with the fol-

lowing cases decided in the Second, Third, and Fourth

Circuits:

Moreau v. Pennsylvania R. Co., 166 F. (2d) 543,

545 (3 Cir., 1948).

Green v. Reading Co., 183 F. (2d) 716, 719 (3

Cir., 1950).

Wright v. Farm Journal, 158 F. (2d) 976 (2

Cir., 1947).

Smith v. Gay, 190 F. (2d) 719 (4 Cir., 1951).

3

Finally the Railroad contends that the error of the trial

court below was a refusal to inform the jury of a require-

ment (proof of proximate causation) which the adminis-

tratrix’s case had to meet before the jury could find for

her. The result of this error in substance was a withhold-

ing from the jury of an integral, essential issue in the

case; the Railroad was deprived of an opportunity to have

this issue decided by the jury, a state of affairs warranted

only if the issue of proximate cause could have been de-

cided against the Railroad as a matter of law. This issue

should not have been decided as a matter of law, and to do

so violated the principles of law announced by this court

in Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54,

87 L. Ed. 610 (1943) ; Bailey v. Central Vermont Railway,

Inc., 319 U.S. 350, 87 L. Ed. 1444 (1943); Owens v. Union

Pacific Railroad Co., 319 U.S. 715, 87 L. Ed. 1683 (1943),

and Brady v. Southern Railway Co., 320 U.S. 476, 88 L. Ed.

239 (1943). In these cases this court held that questions

should not be decided as a matter of law where the evi-

dence and tendencies of the proof are conflicting, and that

to withdraw them is violative of the rights of employees

and their dependents. It is submitted that the rule must

work both ways and that it .s also violative of the em-

ployer’s rights to decide such questions as a matter of law.

Jurisdictional Statement.

(a) Jurisdiction to grant this petition is sustained by

Title 28, U.S.C. see. 1254, Act of June 25, 1948, c. 646, 62

Stat. 928.

(b) The statute of the United States applied by the

United States Court of Appeals for the First Circuit is 45

U.S.C. see. 51, Act of April 22, 1908, c. 149, see. 1, 35 Stat.

4

65; August 11, 1939, c. 685, sec. 1, 53 Stat. 1404, which reads

as follows:

‘Every common carrier by railroad while engaging

in commerce between any of the several States or Ter-

ritories, or between any of the States and Ter-

ritories, or between the District of Columbia and any

of the States or Territories, or between the District of

Columbia or any of the States or Territories and any

foreign nation or nations, shall be liable in damages

to any person suffering injury while he is employed by

such carrier in such commerce, or, in case of the death

of such employee, to his or her personal representa-

tive, for the benefit of the surviving widow or husband

and children of such employee; and, if none, then of

such employee’s parents; and, if none, then of the next

of kin dependent upon such employee, for such injury

or death resulting in whole or in part from the negli-

gence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insuffi-

ciency, due to its negligence, in its cars, engines, appli-

ances, machinery, track, roadbed, works, boats,

wharves, or other equipment.

‘‘Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance of

interstate or foreign commerce; or shall, in any way

directly or closely and substantially, affect such com-

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

chapter, be considered as being employed by such car-

rier in such commerce and shall be considered as en-

titled to the benefits of this chapter.’’

The Court of Appeals also applied Federal Rules of Civil

Procedure Nos. 51 and 61, Title 28, U.S.C., which read as

follows:

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“Rute 51.—Instructions to Jury: OxssEcTION.

‘At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any

party may file written requests that the court instruct

the jury on the law as set forth in the requests. The

court shall inform counsel of its proposed action upon

the requests prior to their arguments to the jury, but

the court shall instruct the jury after the arguments

are completed. No party may assign as error the giv-

ing or the failure to give an instruction unless he ob-

jects thereto before the jury retires to consider its

verdict, stating distinctly the matter to which he ob-

jects and the grounds of his objection. Opportunity

shall be given to make the objection out of the hearing

of the jury.’’

‘Rue 61.—Harmuess Error.

“‘No error in either the admission or the exclusion

of evidence and no error or defect in any ruling or

order or in anything done or omitted by the court or

by any of the parties is ground for granting a new

trial or for setting aside a verdict or for vacating,

modifying, or otherwise disturbing a judgment or

order, unless refusal to take such action appears to

the court inconsistent with substantial justice. The

court at every stage of the proceeding must disregard

any error or defect in the proceeding which does not

affect the substantial rights of the parties.’’

(c) The judgment of the Court of Appeals for the First

Circuit was entered December 8, 1952, and a petition for

rehearing was denied December 19, 1952 (R. 182). This

petition for certiorari was filed February 2, 1953.

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Questions Presented.

(a) When a reasonable juryman at the trial below could

have exonerated the Railroad completely by finding for the

Railread on the issue of proximate cause, was the error of

refusing to instruct the jury on the law of proximate cause

harmless to the Railroad under Federal Rule of Civil Pro-

cedure No. 61?

(b) When counsel requested instructions to the jury and

when the trial judge refused the request, saying his charge

as already given satisfied the request, under Federal Rule

of Civil Procedure No. 51 was counsel obliged to make any

further comment to the judge?

Reasons Relied upon for Allowance of the Writ.

In a Federal Employers’ Liability Act case the Court of

Appeals has substantially approved the taking of a ques-

tion from the jury over the Railroad’s protest, even with-

out ruling that the question should be decided against the

Railroad as a matter of law. This Honorable Court has

given abundant indication that it considers the preserva-

tion of the jury function in Federal Employers’ Liability

Act cases a matter of substance and importance. The

Court of Appeals’ ruling lacks accord with this court’s

decisions, heretofore cited, which embody this indication.

This frustration of the jury’s function was accomplished

by the trial court’s refusal to inform the jury in the charge

that the question of proximate causation existed for the

jury to decide. It is important to the fairness and effi-

ciency of the administration of justice under the Federal

Employers’ Liability Act that what this court has forbid-

den to be done by one means be clearly forbidden to be

done by all means.

7

The Court of Appeals has produced a forced construc-

tion of Federal Rule of Civil Procedure No. 51 which is

highly undesirable, for two reasons. The first: as thus con-

strued this rule requires counsel to place himself in jeop-

ardy of citation for contempt if he is adequately to pro-

tect his client’s standing to appeal from an error of

omission in the jury charge. The second: this construction

of Rule 51 conflicts with the manner in which the rule is

administered in three other appellate circuits.

Wuenrerore this petitioner prays that a writ of certiorari

be issued by this court to the Court of Appeals for the

First Circuit, to the end that the decision of said court may

be reviewed by this honorable court.

THE NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY,

By Epmunp J. Moore,

Pau F. Perxrns,

Its Counsel.

Nog W. Deering,

Wim Q. Keenan,

Of Counsel.

8

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

Opinion of Courts Below.

The verdict of the jury was rendered on February 7,

1952 (R. 8), and pursuant thereto the court rendered judg-

ment on February 8, 1952 (R. 9). On February 28, 1952,

the defendant’s motion for a new trial was denied (R. 168).

The opinion of the Court of Appeals for the First Circuit

is set forth at R. 173 and is not yet reported.

Grounds on which Jurisdiction of the Supreme Court of the

United States is Invoked.

The judgment of the United States Court of Appeals for

the First Circuit was entered on December 8, 1952 (R. 182),

and on December 19, 1952 the petitioner’s petition for re-

hearing was denied (R. 182). Petition for writ of certio-

rari was filed February 2, 1953. The decision of the Court

of Appeals is based upon its application of section 1 of the

Federal Employers’ Liability Act, Title 45, U.S.C. see. 51,

Act of April 22, 1908, ¢. 149, sec. 1, 35 Stat. 65; August 11,

1939, c. 685, sec. 1, 53 Stat. 1404, and upon its application

of Federal Rules of Civil Procedure Nos. 51 and 61, Title

28 U.S.C.A. The jurisdiction of the Supreme Court of

the United States is invoked under Title 28, U.S.C. sec.

1254, Act of June 25, 1948, c. 646, 62 Stat. 928.

Statement of the Case.

John T. Zermani, the administratrix’s intestate, died as

the result of injuries suffered in the course of his employ-

9

ment as a railroad brakeman in Taunton, Massachusetts,

on August 25, 1951 (R. 42, 114, 100). The accident which

gave rise to the case at bar occurred in the course of a

railroad switching operation which required a string of

cars to be moved northward past a switching point, and

then to be redistributed southward, some on the track

whence they came, No. 1, and some on a parallel track, No.

6 (R. 114-117; Ex. 2, R. 161, 19). The appellee’s intestate

was injured when he fell from a moving car which he had

boarded after it had begun to move (R. 27-28, 40-42; Ex.

2, R. 164, 53, 57). The relevant events which led to Zer-

mani’s boarding this car began when the train crew made

inoperative the individual automatic braking mechanisms

on the cars to be switched, by an operation known as bleed-

ing. When operative these mechanisms locked the brakes

of any car which was not coupled to a locomotive. They

had to be rendered inoperative because the switching or

classification operation required these cars to be propelled

southward, uncoupled from the locomotive, to the various

tracks where they were to be made up in trains (R. 24-25,

46, 49, 65-66, 115-116, 141-144),

To bleed a car one pulls and holds an iron rod which in

turn operates a valve allowing air to escape from a pres-

sure chamber, thus removing the source of power which

makes the automatic air brakes operative (R. 45). If one

fails to hold this bleeder rod long enough to permit all the

air to escape, some braking pressure will continue to be

applied to the wheels of the car, preventing it from coast-

ing as freely and rapidly when uncoupled from its locomo-

tive as it would otherwise (R. 47, 24). The only way by

which a car can be rendered mobile while uncoupled from

a locomotive is to bleed it, an operation which, as stated

above, requires attention to be given to each car individu-

ally which is being rendered thus mobile (R. 45),

SESE hase s es edd Wve RRR es

10

When the cars to be classified had been moved north-

ward, Zermani rode the first one southward to track No.

6 and brought it to a halt by using its hand brake (R. 22,

38, 117, 124). Next Zermani’s fellow brakeman, William

Howard (R. 20, 72), rode four cars southward, coupled

together, to track No. 1 and in the same manner brought

them to a halt (R. 22, 38; Ex. 4, R. 164, 53, 56; R. 72-73,

124). Because these cars by their inertia could be counted

on to stop all subsequent cars rolled southward on tracks

Nos. 1 and 6, they made unnecessary the use of a hand

brake to halt such subsequent cars sent southward un-

coupled from the engine. For this reason all subsequent

cars were rolled southward without anyone aboard them.

In accordance with the instructions of Francis A. McAloon,

the conductor of the Railroad’s switching crew and the

man in charge of the operation (R. 113, 114), Zermani was

to remain on track No. 6 to tend the cars sent to him, and

Howard was to remain on track No. 1 for a like purpose

(R. 22, 77-78, 81, 116-118).

Next McAloon caused a sixth car to be propelled south-

ward uncoupled from the locomotive and destined for track

No. 6. Because the air in its automatic brake reservoir

had not been completely bled, it came to a halt by partial

application of its automatic brakes south of the switching

lead to track No. 1, but at the Danforth Street Crossing

(Ex. 2, R. 161, 119) short of its intended destination (R.

24, 38, 125; Ex. 4, R. 164, 53, 56-57). Zermani, observing

it, walked northward to the crossing, which was close to the

switching point, and completed bleeding its brake reservoir

(R. 26; Ex. 4, R. 164, 53, 56-57).

While Zermani was thus occupied, McAloon caused cars

Nos. 7, 8 and 9 to be propelled southward, uncoupled from

the engine, destined for track No. 1 (R. 26-27, 29, 31, 38-

40, 117, 128, 135). The hand brake and ladder leading to

it on car No. 9 were situated at the car’s south end, i.e.,

1]

the end in the direction of the car’s movement (R. 28).

When all but the last half length of car No. 9 had cleared

the crossing, Zermani stepped up on the crossing (R. 27).

When the car had completely cleared the crossing, Zer-

mani ran around it to its west side and then turned to run

in a southerly direction (R. 28, 40; Ex. 4, R. 164, 53, 57).

Zermani mounted the ladder leading to the brake on car

No. 9, but he did not reach the top of the ladder, the only

position from which he could have operated the hand brake

aboard car No. 9 (R. 42). Zermani was last seen by Emil

A. Berube, the switch tender at the Danforth Street Cross-

ing at the time of the accident (R. 17). Berube saw Zer-

mani in a manner ‘‘as though a man would be boarding a

ladder’’ (R. 41). He then saw Zermani’s lantern go up in

the air (R. 40, 41). Moments later he heard Zermani

“holler’’ (R. 42) and rushed down to him (R. 42) and saw

him lying on the ground beside car No. 9 (R. 28, 33, 40).

Berube asked him: ‘‘How did it happen, Johnny? Did you

get to the top of the ladder?’’ Zermani answered: ‘‘No, I

didn’t, Emil. I didn’t quite make it’’ (R. 42).

These last three cars were brought to a halt by the first

four cars previously dispatched to track No. 1, and their

speed at the time of their impact was seven miles per hour

(R. 73-74). One witness (a switch-tender) testified that

the usual switching speed was four miles per hour (R. 31,

17). The record contains no evidence of whether Zermani

fell from car No. 9 before or after this impact, nor was

there evidence that this impact resulted in any damage to

equipment or injury to any person other than Zermani.

Reports made in the ordinary course of business by the

Railroad’s employees indicate that the car which Zermani

boarded was not harmed by the impact (Ex. 4, R. 163-164,

53; Ex. 6, R. 166, 59).

The record contains evidence of three and only three

times at which McAloon gave Zermani orders in the course

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of the classification operation. Before the operation be-

gan, McAloon ordered Zermani to handle cars rolling

southward to track No. 6 (R. 37, 77-78, 81, 116-118) and not

to go on track No. 1 (R. 116). When Zermani had secured

car No. 1 on track No. 6 he walked northward towards the

Danforth Street Crossing (R. 23-24). McAloon’s uncon-

tradicted testimony was: ‘‘When Mr. Zermani was coming

up off of track 6 I says to him, I had my light in my left

hand and slip in the right. I says, ‘Johnny, see if there is

any air in that car on 6’’’ (R. 118). McAloon was refer-

ring to car No. 6, which had stopped at the crossing. Then

McAloon and Berube bled cars Nos. 7, 8 and 9, and Me-

Aloon caused them to begin their roll southward. After

they had begun to move, McAloon called to Zermani:

‘Bleed that car’’ (R. 27, 39-40), again referring to car

No. 6. At the time of the last order there was noise of cars

moving in the yard (R. 27, 138).

Finally, there was adduced evidence that the brake head,

a part of the hand brake on car No. 9, may have been de-

fective, but this defect in no way affected the efficiency

with which the brake might be operated (Ex. 3, R. 162, 49;

R. 61-63).

On appeal to the Court of Appeals for the First Circuit

the Railroad relied on the following statement of error be-

low:

‘‘The trial judge erred, over timely exception of the

defendant, in failing to instruct the jury that the plain-

tiff could recover for no harm which was not proxi-

mately caused by negligence of the defendant.’’ (R.

170.)

The Court of Appeals disposed of this assignment of error

on three alternative grounds:

Saptbsare: “ 2) SL

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(a) Some acts of negligence of which the Railroad was

accused were proximate causes of the harm as a mat-

ter of law. These were McAloon’s orders to Zermani

and an act of negligence which the Court of Appeals

designated as ‘‘the conduct and supervision of the

classification operation viewed as a whole’’ (R. 179).

Therefore (presumably) there was no issue of proxi-

mate cause in the case, the administratrix was entitled

to peremptory instructions on proximate cause, and

the Railroad had no standing to request any instruc-

tions on the question.

(6) The omission of these instructions did not deprive

the Railroad of its substantial rights within the mean-

ing of Federal Rule of Civil Procedure No. 61 (R.

179).

(c) Counsel for the Railroad did not comply with Fed-

eral Rule of Civil Procedure No. d1 by stating dis-

tinctly before the jury retired the Railroad’s objection

to the trial court’s omission of these instructions.

The Court of Appeals stated:

‘“‘The record shows that after the court had com-

pleted charging the jury at the bench conference, the

following colloquy occurred:

‘* “Mr. Moore: On behalf of the defendant, I call

attention to the fact that in describing negligence to

the jury no mention was made that that negligence

should be the proximate cause of the injury and I

ask that the jury be instructed on that.

“<The Court: I meant to Say that.

““*Mr. Moore: I also ask your Honor to charge

request No. 8, which you have not.

““*The Court: You can have that, exception. [

said that negatively. Anything else?’

2 FPR

14

The reasonable interpretation of this exchange is that

when the trial judge informed counsel that he ‘meant

to say that’, he was indicating that he believed his

charge had covered adequately the issue of proximate

cause. Counsel refrained from any response to this,

but went on to his next objection without further com-

ment.’’ (R. 179.)

Thus the Court of Appeals has held as a matter of law

that in the case at bar no instructions on proximate causa-

tion need be given the jury because as a matter of law

there was no jury issue of proximate cause in the case.

Specifications of Errors.

The Court of Appeals erred in holding as a matter of

law that any negligence of the Railroad proximately caused

the administratrix harm.

The Court of Appeals erred in holding that the trial

court’s withholding from the jury of the issue of proxi-

mate cause did not deprive the Railroad of a substantial

right and was not inconsistent with substantial justice

within the meaning of Federal Rule of Civil Procedure No.

61.

The Court of Appeals erred in holding that counsel for

the Railroad did not comply with Federal Rule of Civil

Procedure No. 51 by objecting distinctly to the trial judge’s

refusal to instruct the jury on the law of proximate causa-

tion.

Summary of Argument.

I.

The case at bar arose under the Federal Employers’

Liability Act and contained a jury issue on the question of

PTE GN NE LITLE NS PLETE IOS EI I SALLY TE CELE BIN OE ES LORIE IE EN

15

proximate causation concerning which the Railroad ad-

duced substantial and persuasive proof in the Railroad’s

favor. The court gave the jury no instructions whatso-

ever on the law of proximate cause. This was error be-

cause in substance it withheld an issue of fact from the

jury. This error was harmful because, if this issue had

been given to the jury, the Railroad’s evidence would

abundantly have supported a verdict for the Railroad.

II.

Federal Rule of Civil Procedure N 0. 51 requires counsel

to state his objections to an omission from the jury charge

distinctly and before the jury retires. There can be no

question that counsel for the Railroad did so, whereupon

the trial judge declined to act on counsel’s objection on

the ground that there was no such omission from the charge

as counsel contended. The Court of Appeals erred in hold-

ing that Rule 51 required counsel to make a reply or to

“‘comment further”’ after this reply from the trial judge.

Argument, |

I

As can be indicated fully in the Railroad’s brief if this

petition is granted, the administratrix had great difficulty

below in making out a prima-facie case of negligence.

Moreover, two items of negligence of which the Railroad

was accused, concerning which evidence was adduced, and

which went to the jury, clearly were not proximate causes

of the administratrix’s harm, and with this the appellate

court agreed:

‘“‘The appellant contends that each item of alleged

negligence, taken separately, does not provide a rea-

sonable basis for an inference of negligence which

proximately caused Zermani’s death. Although this

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16

may be true of the worn brakehead on the fatal car

and of the failure to bleed completely car 6,...”’

(Emphasis supplied.) (R. 176.)

From the evidentiary point of view three propositions

are true of the case at bar: (1) On the evidence, and absent

the jury’s verdict, it is far from clear that the Railroad

was negligent at all. (2) It is clear that no negligence of

the Railroad can be said as a matter of law to have proxi-

mately caused the administratrix’s harm. (3) It is abund-

antly clear that some negligence of the Railroad as a mat-

ter of law did not proximately cause the administratrix’s

harm. In this posture of the case it was vital to the

Railroad that the jury be obliged to make a finding of

proximate causation as a condition precedent to a finding

of liability; therefore it was vital that the jury be instruct-

ed on the law of proximate cause.

The reactions of the Court of Appeals to these proposi-

tions were as follows: (1) The jury may not have been

charged on proximate cause, but the court declines to rule

definitively; it is true that the Railroad may have been

entitled to such a charge, but again the court declines to

rule:

‘Tt is true that some instructions to the jury with

reference to proximate cause are necessary for ade-

quate consideration of most negligence actions. Per-

haps the omission was erroneous.’’ (R. 178.)

(2) The jury’s verdict was determinative on the question

whether the Railroad was negligent (R. 177). (3) In spite

of the fact that a cause at least partially contributory to

the administratrix’s harm was Zermani’s voluntary act in

boarding a moving car, the orders given him and the over-

all conduct of the operation as a matter of law proximately

caused the harm:

17

‘‘As a matter of law, the one supervised would be

endangered by negligent supervision.’’ (R. 178-179.)

(4) In spite of the fact that some alleged and proved neg-

ligence of the Railroad as a matter of law did not proxi-

mately cause the administratrix’s harm, it was unneces-

sary to instruct the jury on the law of proximate cause:

‘*We perceive no prejudice to appellant in the charge

which affects its substantial rights. Federal Rules of

Civil Procedure 61.’’ (R. 179.)

Thus the Court of Appeals erred in the following par-

ticulars :

(1) It declined to rule whether proximate causation was

an issue in the case. This was error because Zermani’s

intervening act in boarding car No. 9 could reasonably have

been found by the jury to be the sole proximate cause of his

injury.

(2) The Court of Appeals declined to rule whether the

jury was instructed at all regarding proximate cause. This

was error because this issue was liminal in the appeal.

(A review of the jury charge as set forth in the appellate

opinion (R. 178) indicates that the charge stated no vestige

of the law of proximate causation. The charge is reported

in the Record at pp. 149-159.)

(3) The appellate court found support for the jury’s

verdict by ruling that the administratrix had made out a

prima-facie case on the Railroad’s negligence with respect

to the ‘‘over-all conduct and supervision of the classifica-

tion operation.’’ This was error because no such negli-

gence was placed in issue by the pleadings, and because

such an accusation of negligence is so imprecise that, if it

were set forth in a pleading, it would be open to a motion

to make more definite, a defense against it being impos-

LEY FS RAIA ECE RPL FOPGS NILE LEM PORE LS NEIL IS ANIM FIE A LEAS ES BENEFIT SEE SBE Pa AEE RELA SER OP

eck WARE Eich ea eee SR a

18

sible. To permit such an issue to go to the jury would

amount substantially to shifting the burden of proof from

the plaintiff to the defendant.

(4) The appellate court erred in ruling that as a matter

of law this alleged negligence and the alleged improper

supervision of Zermani by McAloon, the conductor, were

proximate causes of the administratrix’s harm. This was

error because Zermani’s intervening act in boarding car

No. 9 could reasonably have been found to be the sole prox-

imate cause of his injury. This erroneous ruling clearly

conflicts with this honorable court’s construction of the

Federal Employers’ Liability Act in Coray v. Southern

Pacific Co., 335 U.S. 520, 93 L. Ed. 208 (1949).

(5) The Court of Appeals erred because the above rul-

ing on causation, even if it were correct, could not be de-

terminative of the case, and was therefore irrelevant. The

administratrix accused the Railroad of two other acts of

negligence, the operation of car No. 6 with an incompletely

bled air brake reservoir, and the operation of car No. 9

with a defective brakehead. Neither, as admitted by the

appellate court (R. 176), was a proximate cause of the ad-

ministratrix’s harm. Yet each, aleng with all other issues

raised by the administratrix, went to the jury as possible

bases for a finding of liability. Therefore, in the absence

of proper instructions on proximate causation, the jury

was at liberty to find liability on either of these bases. On

the other hand, while the Court of Appeals ruled that, if

the over-all conduct of the classification operation and

McAloon’s supervision of Zermani were negligent, as a

matter of law they proximately caused the harm, the Court

of Appeals did not and could not have ruled that the over-

all conduct of the classification operation and McAloon’s

supervision of Zermani as a matter of law were negligent.

The jury could have and might have found these aspects

of the switching operation free of negligence, thus ren-

19

dering academic the ruling of law that they proximately

caused the harm.

(6) Therefore the Court of Appeals erred in ruling that,

when the jury was permitted to base a verdict of liability

on a finding that car No. 6 was negligently bled or that car

No. 9 was negligently operated with a defective brakehead,

no substantial right of the Railroad under Federal Rule

of Civil Procedure No. 61 was abridged by leaving the jury

in ignorance that these facts were irrelevant unless accom-

panied by an additional finding that they proximately

caused the accident. The only basis upon which Federal

Rule 61 can be said to render this trial error compatible

with substantial justice is the fact that there was available

another theory of recovery upon which the jury’s verdict

could, but need not necessarily, have rested, namely, that

McAloon’s supervision of Zermani or the over-all conduct

of the operation was negligent, and that one of these proxi-

mately caused the accident. This view of Rule 61 is

squarely in conflict with a decision in the Ninth Circuit,

Pacific Greyhound Lines v. Zane, 160 F. (2d) 731, 737 (9

Cir., 1947). Also see Central Dispensary & Emergency

Hospital v. Harbaugh, 174 F. (2d) 507 (App. D.C., 1949).

Therefore the Railroad asks that certiorari issue in the

ease at bar because the Court of Appeals’ decision con-

flicts with a comparable ruling made in Pacific Greyhound

Lines v. Zane, 160 F. (2d) 731, 739 (9 Cir., 1947), and be-

cause the decision’s rationale is based on a ruling of law

lacking compliance with this honorable court’s construc-

tion of the Federal Employers’ Liability Act in Coray v.

Southern Pacific Co., 335 U.S. 520, 93 L. Ed. 208 (1949).

IL.

Possibly the Court of Appeals as well as the Railroad

entertains doubts concerning the rulings discussed above

REUSE SRI PR CVAD SRLS CELE AEE BFE TR PLA RPT NE

20

because, having cited five inapplicable precedents—

Williams v. Powers, 135 F. (2d) 153 (6 Cir., 1943); Mc-

Donald v. Jarka Corp., 144 F. (2d) 53 (2 Cir., 1944) ; Blair

v. Cullom, 168 F. (2d) 622 (2 Cir., 1948); Alaska Pacific

Salmon Co. v. Reynolds Metals Co., 163 F. ( 2d) 643 (2 Cir.,

1947); and Alcara v. Jean Jordeau, Inc., 138 F. (2d) 767

(3 Cir., 1943)—the appellate court held counsel for the

Railroad not to have complied with Federal Rule of Civil

Procedure No. 51, thereby construing Rule 51 in a manner

conflicting with its construction in Moreau v. Pennsylvania

Railroad Co., 166 F. (2d) 543, 545 (3 Cir., 1948) ; Green v.

Reading Co., 183 F. (2d) 716, 719 (3 Cir., 1950) ; Wright

v. Farm Journal, 158 F. (2d) 976 (2 Cir., 1947) ; and Smith

v. Gay, 190 F. (2d) 719 (4 Cir., 1951).

Rule 51 requires counsel, if he objects to an omission in

a jury charge, to state his objection to the court distinctly

before the jury retires. Counsel for the Railroad at-

tempted to do that by saying to the trial judge below, be-

fore the jury retired:

‘On behalf of the defendant, I call attention to the

fact that in describing negligence to the jury no men-

tion was made that that negligence should be the prox-

imate cause of the injury and I ask that the jury be

instructed on that.’’ (R. 159.)

To this the trial judge’s reply was: ‘‘I meant to say that’’

(R. 159). Of this reply the Court of Appeals said:

‘‘The reasonable interpretation of this exchange is

that when the trial judge informed counsel that he

‘meant to say that’, he was indicating that he be-

lieved his charge had covered adequately the issue of

proximate cause.’’ (R. 179.)

21

The Court of Appeals held the Railroad not to have com-

plied with Rule 51 because—

‘‘Counsel refrained from any response to this, but

went on to his next objection without further com-

ment.’’

The Railroad submits that the appellate court is per-

fectly correct in stating that the only reasonable interpre-

tation of the trial judge’s reply was that he believed his

charge had covered adequately the issue of proximate

cause. In other words, the statement ‘‘I meant to say

that’? amounted to ‘“‘I’ve already said that.’’ Counsel

knew that the trial judge had given the jury no instructions

on the law of proximate causation whatsoever, in other

words, had not ‘‘already said that,’’? but counsel had no

clue to the reason why the trial judge thought he had done

so. In sharp and revealing contrast to the case at bar is

Rosenfeld v. Curtis Publishing Co., 163 F. (2d) 660 (2

Cir., 1947), cited by the Court of Appeals, which held that

Rule 51 requires counsel to bring to the trial court’s atten-

tion any mistake of the trial court of which counsel is or

ought to be aware in the exercise of reasonable competence

and perspicuity as an attorney and officer of the court.

In this posture of the case at bar the appellate ruling

required counsel at the trial below, if he desired to comply

with Rule 51, to ask one of the two following questions of

the trial judge because they were the only comments of any

relevancy open to counsel:

‘‘Why, your Honor, do you believe you have already

adequately covered the issue of proximate cause?’’

or

‘‘Your Honor, may I repeat or insist on my attempt,

in behalf of the defendant, to call attention to the fact

22

that in describing negligence to the jury no mention

was made that that negligence should be the proxi-

mate cause of the injury, and may I repeat or insist

on my request that the jury be instructed on that?’’

The Railroad earnestly submits that either of these re-

sponses or ‘‘further comments’’ would have been disre-

spectful to the trial court, would be caleulated to incur a

trial judge’s reasonable displeasure, and would amount to

argument with rather than before a trial court.

This holding of the Court of Appeals therefore makes

it desirable that certiorari issue because of the extremely

unfortunate effects this holding will have on the adminis-

tration of justice, and because it conflicts with construc-

tions of Rule 51 in the Second, Third and Fourth Circuits,

as indicated above.

ITI.

The only issue in this case met squarely by the Court of

Appeals was the question whether the Railroad complied

with Rule 51, and that question, the Railroad submits, was

answered erroneously. Otherwise the opinion of the ap-

pellate court below is a continuous retreat from one ruling

to another, each imprecise, insecure and inadequate to

support its predecessor or successor. The appellate court

suggests that proximate cause was an issue in the case but

refuses to admit it, wonders whether the charge included

an instruction on proximate cause but declines to decide,

asserts that two aspects of the Railroad’s alleged negli-

gence proximately caused the accident as a matter of law

but declines to cite precedent or to indicate the materiality

of this, and finally retires behind the shrubbery of Rule 61

to the implication that, even if error taints the foregoing,

23

the Railroad’s case was so poor that it was deprived of no

substantial right when the trial court declined to submit

the issue of proximate cause to the jury. It is because

none of this provides a sure and sound basis for affirming

the judgment below that the Court of Appeals has to turn

its attention to the Railroad’s standing to assign these

errors on appeal. And this standing is impeached on the

basis of an astoundingly tortuous construction of the Fed-

eral Rules of Civil Procedure.

Therefore thirdly the Railroad petitions this honorable

court for a writ of certiorari because the Railroad has been

denied plain, simple justice. |

Conclusion.

It is respectfully submitted that this petition for writ of

certiorari should be granted.

EDMUND J. MOORE,

PAUL F. PERKINS,

Counsel for the Petitioner.

Noeu W. Deerine,

WitumaM Q. Keenan,

Of Counsel.