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

Supreme Court brief1953

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Text

Subject Index.

PETITION

Opinions below

Jurisdiction

Statement of matter involved

Statement of the case

Statutes involved

Questions presented

Reasons relied on for allowance of the writ

BriEF

Argument

I. The evidence in this case was not sufficient as a

matter of law to warrant a finding that there was

a violation of Sections 1 and 9 of the Safety Ap-

pliance Act

II. If there was a violation of the Safety Appli-

ance Act, the evidence was not sufficient to war-

rant submitting the case to the jury on the

question of proximate cause

III. The trial judge erred in failing to charge the

jury as requested as to the difference between

legal condition and legal causation

IV. The trial judge erred in refusing to admit evi-

dence offered by the petitioner that the respond-

ent is receiving a disability payment to the cost

of which the petitioner contributed

Conclusion

onmnnrnnwns WS FF KF

—

oOo 2

Table of Authorities Cited.

CasEs.

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

Ed. 239 14, 20

Brady v. Terminal Railroad Assn., 303 U.S. 10 13

Brumberger v. Burke, 56 F. (2d) 54 20

Coray v. Southern Pacific Co. (Utah), 185 P. (2d) 962 12

Coray v. Southern Pacific Co., 335 U.S. 520

11, 12, 13, 15, 20

Davis v. Wolfe, 263 U.S. 239 13, 15, 16, 20

Detroit City Gas Co. v. Syme, 109 F. (2d) 366 20

Fairport, Painesville & Eastern Railroad Co. v. Mere-

dith, 292 U.S. 589; 79 L. Ed. 1446 12

Great Northern Railway Co. v. Wiles, 240 U.S. 444; 60

L. Ed. 732 16

Hetrick v. Reading Co., 39 F. Supp. 22 21

Lang v. New York Central Railroad Co., 255 U.S.

455 18, 20

Leuisville & Nashville Railroad Co. v. Layton, 243

U.S. 617 13

McCalmont v. Pennsylvania Railroad Co., 283 F. 736 18

McCarthy v. Palmer, 113 F. (2d) 721 21

Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U.S.

469 14

O’Donnell v. Elgin, Joliet & Eastern Railway Co., 338

U.S. 384 13

Reetz v. Chicago & Erie Railroad Co., 46 F. (2d) 50 16,20

Southwestern Brewery & Ice Co. v. Schmidt, 226 U.S.

162 22

Spokane & Inland Empire Railroad Co. v. Campbell,

241 U.S. 497 12,17

St. Louis & San Francisco Railroad Co. v. Conarty,

238 U.S. 243 18, 20

SraTures.

Carriers Taxing Act, 45 U.S.C. Sec. 263 ae

Federal Employers’ Liability Act, 45 U.S.C. Sees.

51-60 2,17

Railroad Retirement Act of 1937, 45 U.S.C. Sec. 228a

et seq. 9, 21

Safety Appliance Act, 45 U.S.C. Sees. 1, 9 2 et seq.

Safety Appliance Act, 45 U.S.C. Sec. 11 7, 10, 11, 13

28 U.S.C. Sec. 1254 2

TEXTBOOK.

Restatement of the Law of Torts, Sec. 430, Comment

(d) 18

Restatement of the Law of Torts, Sec. 431, Comment

(a) 18

Supreme Court of the United States.

Octoser Term, 1953.

No.

THE NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY,

Petitioner,

JOHN W. LEARY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT.

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

The petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the First Circuit, entered in the above-entitled action

on May 14, 1953.

Opinions Below.

The opinion of the District Court (R. 111-113) is unre-

ported. The opinion of the Court of Appeals (R. 119-131)

is reported in 204 F’. (2d) 461.

Jurisdiction.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1254.

Statement of Matter Involved.

This is an action brought under the provisions of the

and the Safety Appliance Act, 45 U.S.C. Sees. 1 and 9, to

recover for personal injuries sustained at Madison, Con-

necticut, on September 13, 1946. The action was begun in

the United States District Court for the Southern District

of New York, and was transferred to the United States

District Court for the District of Massachusetts by order

of the United States District Court for the Southern Dis-

trict of New York by an order dated October 18, 1951 (R.

1). The case was tried before Judge Wyzanski and a jury

on June 30, July 1 and July 2, 1952. On July 2 the peti-

tioner presented a motion for a directed verdict, which was

denied, and the jury returned a verdict for the respondent

in the amount of $84,000 (R. 14, 15). Judgment was en-

tered on July 2 in the above amount and costs were taxed

at $38.50.

Before the case was submitted to the jury, respondent’s

counsel waived all counts except those under the Safety

Appliance Act, and the case was submitted only on the

issues of the violation of the Safety Appliance Act, causa-

tion and damages (R. 91).

During the cross-examination of the respondent the peti-

tioner offered to prove that the respondent was receiving

a disability pension to the cost of which the petitioner had

contributed. The Court refused to admit the testimony (R.

66-68).

a a epee ee ANN ete ote ae ee te ee ee Ce ONT Ey) tar See ep Ge RRP eR

Before the Court instructed the jury, the petitioner filed

requests for instructions (R. 17-21). After the Court had

instructed the jury, the petitioner objected to part of the

charge (R. 101) and to certain omissions from the charge

(R. 102), which objections were overruled.

On July 11, 1952, the petitioner filed a motion for judg-

ment notwithstanding verdict and motion for a new trial.

The motion was denied on July 21, 1952 (R. 16). The peti-

tioner filed notice of appeal on August 19, 1952 (R. 114),

and was granted an enlargement of time for docketing ap-

peal until November 17, 1952 (R. 118).

The Court of Appeals for the First Circuit affirmed the

judgment of the District Court on May 14, 1953.

Statement of the Case.

The respondent, John W. Leary, brought this action to

recover for injuries sustained between Clinton and Madi-

son, Connecticut, on September 12, 1946, at about 3.30 a.m.

The respondent was the conductor-on a passenger train

which had left Boston en route to New York City at 11.45

p.m. on September 11, 1946 (R. 22). The train consisted

of either seven (R. 23) or eight (R. 106, Ex. 14A) cars at

the time of the accident and had proceeded uneventfully

until shortly after it had passed the station at Clinton, Con-

necticut (R. 56). At that time the engineer, whose name

was Geary, told the fireman, Scanlon, that he thought the

brakes were sticking, and asked Scanlon to look back and

see whether he could see fire flying (R. 74). At the trial

Scanlon was unable to remember whether he did, in fact,

see fire flying, but testified that the term is used to indi-

cate sparks caused by friction of the brakes against the

wheels, which might be seen in the dark if the brakes were

rubbing on the wheels (R. 75). The train involuntarily

came to a stop without the engineer’s applying the air, be-

cause the brakes were sticking, at an unscheduled stop be-

tween Madison and Clinton, Connecticut. It does not ap-

pear that any member of the crew was aware at the time

the train stopped that the front part of the locomotive was

resting on a bridge or trestle over a highway described as

Bishop Street. This was an open trestle bridge without

any railing along the right of way. Photographs of the

bridge were introduced in evidence and appear in the Rec-

ord on pages 104, 105, 108, 109 and 110.

Prior to the-stopping of the train Mr. Leary was riding

in the head coach (R. 24). He heard the brakes go on in

emergency, and the train came to an unscheduled stop. He

got up and got his electric lantern, and went outside and

stepped down to the ground on the engineer’s side or right-

hand side of the train (R. 25). The train was headed in a

westerly direction, and the side on which he got out was the

northerly side of the train. He met the engineer walking

back from the engine. The engineer had a lighted torch in

one hand and told him that there was a bad air leak, and

they then walked back together toward the rear of the

train to find it (R. 26). They found a broken air hose on

the head end of the head sleeper. The engineer had

brought back a spare hose with him, but it was not the right

type and Leary said that he would go back to the engine and

get another one (R. 27). In walking back toward the en-

gine Leary went on the opposite side of the train, which

would be the southerly side next to Track 2, or the east-

bound main line (R. 28). He testified that the reason he

went on that side was because the walking was better, as

he had noticed on walking down the other side there was

considerable loose ballast. On Track 2 side he could walk

on the ties and the footing was firmer. When he got to the

locomotive he climbed up on the rear end of the tender to

see if there was a spare hose in a tool box at the rear of the

tender (R. 30, 58). Not finding one there, he climbed down

on the northerly side of the train and went forward to the

gangway of the locomotive. He had some conversation

with the fireman, who was still on the engine, and the fire-

man handed him a hose—the type he was looking for.

Leary then decided to walk around the front of the engine

and go back on the Track 2 side rather than on the side

where he then was, as he felt the walking would be better

(R. 30, 60). He took a few steps toward the front of the

engine and walked off into space. He testified that the

weather was clear, but there was a ground fog and it was

dark. There was no artificial light in the vicinity, except

a glare that came from the ash pan of the engine. He did

not know before he fell that any part of the locomotive

was on the bridge and did not know he was near any bridge

(R. 47). He knew that the train had gone past Clinton but

did not know exactly where it was (R. 52). He knew that

there were open trestle bridges between Clinton and Madi-

son and knew that there was a bridge of this type some-

where beyond Clinton; at the time he fell he had with him

an electric hand lantern with a bulb in the bottom (R. 62) ; he

had to watch his step and be very careful; he was looking

down to see where each foot was going, as he was walking

along; he was watching the tank and could not see any dis-

tance in front; he had his lantern in his right hand but did

not see any portion of the buttress; the first thing he knew

his foot went right off, and he landed standing straight up

(R. 65).

Scanlon was still on the engine when Leary fell, and he

heard him crying for help and went to his assistance (R.

80). He did not know that the front of the engine was on

the bridge (R. 75), and did not know it was there until he

got down from the engine and started forward with a

flashlight and saw the edge of the abutment just as he got

to it (R. 81). He went forward about 8 feet before he

reached the abutment, and, realizing that Mr. Leary had

fallen, he got other members of the train crew, who carried

Leary back and put him on the train.

Statutes Involved.

The pertinent sections of the Safety Appliance Act (45

U.S.C.) are as follows:

‘“Sxo. 1. Driving-wheel brakes and appliances for

operating train-brake system.

“Jt shall be unlawful for any common carrier en-

gaged in interstate commerce by railroad to use on its

line any locomotive engine in moving interstate traffic

not equipped with a power driving-wheel brake and ap-

pliances 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 without requiring

brakemen to use the common hand brake for that pur-

pose.

‘“Szo. 9. Number of cars to be operated with power

or train brakes; increase of number.

‘“Whenever, as provided in sections 1-7 of this title,

any train is operated with power or train brakes not

less than 50 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 cars in such train which are associated together

with said 50 per centum shall have their brakes so used

and operated; and, to more fully carry into effect the

objects of said sections, the Interstate Commerce Com-

mission may, from time to time, after full hearing, in-

crease the minimum percentage of cars in any train

required to be operated with power or train brakes

which must have their brakes used and operated as

aforesaid; and failure to comply with any such re-

quirement of the said Interstate Commerce Commis-

sion shall be subject to the like penalty as failure to

comply with any requirement of this section.

[The following section is included only for purposes

of comparison. ]

Src, 11. Safety appliances required for each car;

when hand brakes may be omitted.

‘‘Tt shall be unlawful for any common carrier sub-

ject to the provisions of sections 1-16 of this title to

haul, or permit to be hauled or used on its line, any

car subject to the provisions of said sections not

equipped with appliances provided for in sections 11-

16 of this title, to wit: All cars must be equipped with

secure sill steps and efficient hand brakes; all cars re-

quiring secure ladders and secure running boards shall

be equipped with such ladders and runijing boards, and

all cars having ladders shall also be equipped with se-

cure handholds or grab irons on their roofs at the

tops of such ladders: Provided, That in the loading and

hauling of long commodities, requiring more than one

car, the hand brakes may be omitted on all save one of

the cars while they are thus combined for such pur-

pose.’’

Questions Presented.

1. Was the evidence sufficient as a matter of law to pre-

sent a question for the jury as to violation of the provisions

of the Safety Appliance Act?

2. If there was a violation of the Safety Appliance Act,

pt dl arya to present a

question for the jury as to whether the violation was the

proximate cause of the respondent’s injuries?

3. If there was a jury issue on the question of causation,

was there error in the failure of the trial judge to charge

as requested'as to the difference between legal condition

and legal causation?

4. Did the trial judge commit error in refusing to admit

evidence offered by the petitioner that the respondent is

receiving disability payments to the cost of which the peti-

tioner contributed?

Reasons Relied on for Allowance of the Writ.

1. The case involves the application of Sections 1 and 9

of the Safety Appliance Act in circumstances which have

not been previously considered by this Court. It is sub-

mitted that the standard applied to those sections by the

Court of Appeals was error.

2. The Court of Appeals erred in holding that the re-

spondent had made out a question for the jury on the ques-

tion of proximate cause.

3. The Court of Appeals erred in holding that the jury

was adequately instructed on the question of proximate

cause.

4, The Court of Appeals erred in holding that there was

no prejudicial error in refusing to allow petitioner to offer

evidence that respondent was receiving disability pension

from the United States Government under the Railroad

Retirement Act. This is a matter not previously deter-

mined by this Court.

Wherefore the petitioner prays that this petition be

granted and that a writ of certiorari issue.

PAUL F. PERKINS,

Attorney for Petitioner.

Nore. W. Deertne,

Caries W. Bartiert,

Joun O. Parker,

Exy, Bartiett, THompson & Brown,

Of Counsel.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

The facts are stated in the petition filed herewith.

Argument.

THE EVIDENCE,IN THIS CASE WAS NOT SUFFICIENT AS A MATTER

OF LAW TO WARRANT A FINDING THAT THERE WAS A VIO-

LATION OF Sections 1 AND 9 oF THE Sarety APPLIANCE AcT.

The petitioner submits that the only sections of the

Safety Appliance Act which are applicable to air brake

equipment are Sections 1 and 9. These sections are set

forth in the petition. Petitioner’s position is not that the

provisions of these sections are not mandatory, but rather

that the mandate was not violated. It is a different man-

date from that found in Section 11. Section 1 is specific as

to power-brake equipment on locomotives and requires that

there must be a sufficient number of cars equipped with

power or train brakes so that the ‘‘engineer on the locomo-

tive drawing such train can control its speed without re-

quiring brakemen to use the common hand brake for that

purpose.’’ It is to be noted that Section 1 is not even spe-

cific as to the number of cars to be equipped, provided that

the engineer can control its speed without requiring brake-

men to use hand brakes. Section 9, which is a later enact-

ment, specifies that not less than 50 per cent of the cars

shall have their brakes used and operated by the engineer,

and that the brakes on the cars which are associated to-

gether shall be so used and operated, and the Interstate

Commerce Commission is given authority to increase the

percentage of cars so used and operated. :

Although there was no evidence at the trial of any Inter-

state Commerce Commission orders, it is understood that

the percentage of cars has been increased by the Interstate

Commerce Commission as permitted by Section 9 to 85 per

cent.

It seems clear from the statute and from the order of the

Commission that the most that is required is to have brakes

on 85 per cent of the cars that can be controlled from the

engine, so that the train can be brought to a stop without

the use of hand brakes. There is no question that the en-

gine and cars were equipped as required by the statute.

From the very nature of the air-brake system, if there is a

leakage of air the train will stop without the necessity of

using hand brakes. It is clear that the underlying purpose

of the sections relating to air brakes is to prevent accidents

caused by inability to bring trains to a stop, and also to

prevent accidents to employees from the necessity of hay-

ing to use hand brakes while the train is in motion.

Sections 1 and 9 do not contain other mandatory provi-

sions such as are found in Section 11 of the Act: ‘‘ All cars

must be equipped with .. . efficient hand brakes.. .’’

While Section 11 does impose an absolute duty to have effi-

cient hand brakes, the language of the sections relating to

air brakes contains no such provision nor any other stand-

ard, but merely requires that the brakes must be sufficient

to bring the train to a stop without the use of hand brakes.

The Court below felt that it was bound by Coray

v. Southern Pacific Co., 335 U.S. 520, in its interpretations

of the sections of the statute.

We are therefore faced at the outset with the necessity

of distinguishing that case. It is true that in the Coray

case the train had stopped because of a defect in the air-

brake system and was run into by a motor car following

on the same track, and this Court stated that the air had

escaped because of a violation of the Federal Safety Appli-

ance Act. The Court did not refer to the particular section

of the statute that was claimed to have been violated, and

nothing more appears as to the alleged violation other than

that the threads on a valve were so badly worn that a nut

became disconnected. The question of violation does not

appear to have been argued in this Court, although an ex-

amination of the record indicates that the question was

raised in the trial Court. The trial judge, however, di-

rected a verdict for the defendant on the question of

causation, and the Utah Supreme Court sustained the di-

rected verdict on that issue alone after asserting that there

had been a violation of the Act.

Coray v. Southern Pacific Co. (Utah), 185 P.

(2d) 963.

It is therefore submitted that the question of violation of

the statute was not fully considered by any of the three

Courts that passed upon the Coray case. The cases cited by

this Court in the Coray opinion in support of the statement

that the Act ‘‘commands railroads not to run trains with

defective brakes’’ do not appear to support that proposition

as to air brakes. Only two of the cases cited involve the

question of air brakes. In the first, Fairport, Painesville &

Eastern Railroad Co. v. Meredith, 292 U.S. 589, 597; 79 L.

Ed. 1446, 1451, the train was not able to stop at a crossing,

because the air brakes were not hooked up at all. The other,

Spokane & Inland Empire Railroad Co. v. Campbell, 241

U.S. 497, involved a collision of trains, and there was evi-

dence that, when the engineer applied his air brakes, they

failed to work, and he was unable te stop the train. The

other czses cited arose under other sections of the statute

where the provisions undoubtedly were mandatory, and the

mandate was not that found either in Section 1 or 9.

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

(defective grab-iron).

Louisville € Nashville Railroad Co, v. Layton,

243 U.S. 617 (defective coupler).

Davis v. Wolfe, 263 U.S. 239 (defective grab-

ifon).

It is submitted that, since the question of interpretation

of Sections 1 and 9 was not squarely raised before this Court

in the Coray case, the statement by the Court that there was

a violation is not binding on all future cases where there is

a stopping of a train due to any air-hose defect. It is ap-

parent that the Court was applying to the facts in that case

the standard set up for hand brakes in Section 11 of the Act,

which is not to be found in either Section 1 or Section 9 of

the Act relating to air brakes.

In O’Donnell v. Elgin, Joliet € Eastern Railway Co., 338

U.S. 384, a case involving Section 2 of the Act, a similar dis-

tinction was pointed cut by Mr. Justice Burton (dissenting)

at page 394:

‘*We do not agree that the Safety Appliance Acts

contain a mandatory requirement that cars used in mov-

ing interstate traffic must be equipped with couplers

that ‘will remain coupled until set free by some pur-

poseful act of control.’ Congress might have so legis-

lated, as it did in the section which required cars to be

equipped with ‘efficient hand brakes; . . .’ However, it

did not do so.’

It is respectfully submitted that on the facts in this case

the Court of Appeals erred in holding that the defect in the

air hose was a violation of Sections 1 and 9 of the Safety

Appliance Act, and should have held as a matter of law that

there was no violation of the applicable sections of the

Safety Appliance Act.

Il.

Ir THERE WAS A VIOLATION OF THE SaFeTy APPLIANCE ACT,_THE-

EVIDENCE WAS NOT SUFFICIENT TO WARRANT SUBMITTING THE

——

CASE TO THE JURY ON THE QUESTION OF PROXIMATE CAUSE.

It is the petitioner’s contention that, even if a violation of

the Safety Appliance Act could have been found, the viola-

tion was a mere condition and was not the proximate cause

of the respondent’s injuries.

Even where violation of a duty is established, the trial

Court should direct a:verdict for the petitioner if the evi-

dence is not sufficient as a matter of law to establish that the

violation is the proximate cause of the injury.

Brady v. Southern Railway Co. (1943), 320 U.S.

476, 483; 88 L. Ed. 239, 245.

This Court in the case just cited adopted the language

from Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U.S.

469, 475, as follows:

‘But it is generally held, that, in order to warrant a

finding that negligence, or an act not amounting to

wanton wrong, is the proximate cause of an injury, it

must appear that the injury was the natural and prob-

able consequence of the negligence or wrongful act, and

that it ought to have been foreseen in the light of the

attending circumstances.’’

en sag falc atet

In Davis v. Wolfe (1923), 263 U.S. 239, 243, this Court

said, after reviewing four of its earlier opinions involving

the Safety Appliance Act:

‘*The rule clearly deducible from these four cases is

that, on the one hand, an employee cannot recover under

the Safety Appliance Acts if the failure to comply with

its requirements is not a proximate cause of the acci-

dent which results in his injury, but merely creates an

incidental condition or situation in which the accident,

otherwise caused, results in such injury; and, on the

other hand, he can recover if the failure to comply with

the requirements of the act is a proximate cause of the

accident, resulting in injury to him while in the dis-

charge of his duty, although not engaged in an opera-

tion in which the safety appliances are specifically de-

signed to furnish him protection.’’ (Emphasis added.)

It is the petitioner’s contention that the case at bar falls

within the first part of the rule of Davis v. Wolfe, and that

the breakdown of the train was merely a condition and not

the proximate cause of the accident.

Davis v. Wolfe is cited in Coray v. Southern Pacific Co.,

335 U.S. 520, 523, after the Court says ‘‘. . . petitioner was

entitled to recover if this defective equipment was the sole

or a contributory proximate cause of the decedent employ-

ee’s death.’’ (Emphasis added.)

Although in the Coray case this Court held that the ques-

tion of causation was for the jury, it is here submitted that

the case at bar is distinguishable from that case on its facts.

The Court of Appeals recognized the distinction, but never-

theless held that the situation in the case at bar presented a

question for the jury.

In Coray the accident was direct and almost immediate

following the stopping of the train. As this Court said, ‘all

of these circumstances were inseparably related to one an-

other in time and space”’ (p. 524).

In the instant case there was not only an intervening lapse

of time and space, but an entirely independent situation

which was the cause of the accident. It is undisputed that

there was an open and unguarded bridge or opening on the

petitioner’s right of way, and that the respondent fell into

it. Whether or not this constituted negligence on the part

of the railroad is not material, in view of the fact that the

respondent has chosen to rely entirely upon a violation of

the Safety Appliance Act as the cause of the injuries. In

any event, an accident may be caused by an act or a situation

which is not due to negligence on the part of anyone. The

existence of this unguarded opening, together with Leary’s

failure to observe it, was the cause of the accident, rather

than the remote condition which brought the train to a stop.

While it is true that Leary’s contributory negligence as such

would not bar recovery, nevertheless, if his conduct, whether

negligent or not, could be found to be the sole cause of the

accident, of course he could not recover.

Great Northern Railway Co. v. Wiles, 240 U.S.

444; 60 L. Ed. 732.

The case at bar is very similar to Reetz v. Chicago & Erie

Prairoad Co. (6 Cir. 1931), 46 F. (2d) 50.

There a train parted due to breaking of couplers and

draw bars. The plaintiff’s decedent took his lantern and

started to walk to the forward part of the train to find the

trouble and get the train under way. Unknown to him the

train had stopped over an unguarded bridge, and he fell to

the way below. One of the bases of liability asserted was

violation of the Safety Appliance Act. The Court, applying

the.rule of Davis v. Wolfe, 263 U.S. 239, held that violation

of the statute was not the proximate cause of the accident,

and sustained the directed verdict.

At page 51 the Court said:

‘‘Reetz’s fall had no direct relation to the defective

draw bar. It was not the instrumentality which caused

his death, even though, because of its failure, the condi-

tion was created whereby Reetz happened to be at the

place where he was injured.’’

The Court then points out the difference between collision

and non-collision cases involving safety violations as follows

(p. 52) :

‘*A careful consideration of the noncollision cases .. .

leads us to the conclusiun that at least in those cases

_where there has been a failure of a required appli-

ance, there is liability only where the failure of the

appliance not only creates a condition under which, or

an incidental situation in which the employee is injured,

but where the defective appliance is itself an efficient

cause of or the instrumentality through which the in-

jury is directly brought about. Here the incidental

situation existed, but the defective appliance bore no

other relation to the injury.”’

In some of the cases a great deal of emphasis is put on the

wording of the Federal Employers’ Liability Act ‘‘in whole

or in part.’’? The words ‘‘in part’? really add nothing to the

common-law concept of causation. Even though it is true

that the negligence or violation of duty does not have to be

the sole cause, it still has to be a cause of the injury, and a

mere condition still is not acause. Thus, as the Court points

out in Spokane ¢ Inland Empire Railroad Co. v. Campbell,

241 U.S. 497, the contributory negligence of the plaintiff, not

being a bar.to the action, although a cause, does not bar re-

covery where the defendant’s violation of duty is also a

cause. But it is perfectly clear that the defendant’s viola-

tion of duty still has to be a cause and nothing less.

See Restatement of the Law of Torts, Sec. 430,

Comment (d).

Other cases where recovery has been denied as a matter

of law for lack of causation between violation and injury

are:

Lang v. New York Central Railroad Co. (1921),

255 U.S. 455.

St. Louis & San Francisco Railroad Co. v. Con-

arty (1915), 238 U.S. 243.

McCalmont v. Pennsylvania Railroad Co. (6th

Cir. 1922), 283 F. 736.

In each of the foregoing cases it is clear that the accident

would not have occurred if there had not been a violation of

the statute, yet the Courts held that the violation was a mere

condition and not a cause of the accident.

These cases illustrate the proposition that, in order to

satisfy the requirement of legal cause, the plaintiff must

show something more than failure of duty preceding an ac-

cident. The failure of duty must be a substantial factor in

bringing about the end result, something more than the so-

called ‘‘if, but for’’ cause.

See Restatement of the Law of Torts, Sec. 431,

Comment (a).

The petitioner submits that, on the evidence most favor-

able to the respondent in this case, the breakdown of the

train was a mere condition, and that the trial judge should

haye direcied a verdict for the petitioner because the re-

spondent failed to prove as a matter of law that any failure

aaa naan

of duty arising out of the violation of the Safety Appliance

Act caused his injuries, and that the Court of Appeals should

have reversed the ruling of the trial judge.

III.

THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY AS

REQUESTED AS TO THE DIFFERENCE BETWEEN LEGAL CONDITION

AND LEGAL CAUSATION,

If there was a question for the jury on the issue of causa-

tion, instructions should have been given on the meaning

of legal causation as distinguished from legal condition. The

petitioner does not contend that, so far as the judge’s charge

went, it was not correct, but it fell short of giving the jury

any of the basic principles of legal causation. To tell a

group of laymen that they must be satisfied in their own

minds that there was ‘‘some kind of connection of a causal

nature between the failure of the brakes and the injury

which occurred”’ is wholly inadequate. The petitioner sub-

mits that in a case of this kind it is entitled to have the jury

instructed, not as to ‘‘some kind of connection,’’ but as to

what kind of connection it is proper for them to find. As

the charge was left, the jury could find, and obviously did

find, that the mere stopping of the train due to the leaking

of air was the cause of respondent’s injuries. In the absence

of any instruction as to the difference between legal cause

and legal condition they were free to assume that the “but

for’’ cause was an adequate ground for satisfying the re-

quirements as to causation in the case. ‘‘If the train had

not stopped, the plaintiff would not have been hurt”’ is prob-

ably as far as the jury ever went.

Many of the cases cited in the preceding section of this

brief illustrate the distinction as a matter of law between

legal cause and legal condition. In most of those cases a

verdict was directed because the Courts held as a matter of

law the failure of duty was a mere condition and not a

cause.

Brady v. Southern Railway Co. (1943), 320 U.S.

476.

Lang v. New York Central Railroad Co. (1921),

255 U.S. 455.

St. Louis & San Francisco Railroad Co. v. Con-

arty (1915), 238 U.S. 243.

Reetz v. Chicago & Erie Railroad Co., 46 F. (2d)

50.

In other cases the necessity for applying the distinction

by adequate instructions to the jury is recognized where

there is a question of fact for the jury.

Davis v. Wolfe (1923), 263 U.S. 239, 243.

Brumberger v. Burke, 56 F. (2d) 54, 56.

Even in Coray v. Southern Pacific Co., 335 U.S. 520, this

Court recognizes that proximate cause is the necessary basis

for recovery.

In Detroit City Gas Co. v. Syme (6 Cir. 1940), 109 F. (2d)

366, speaking of the charge in the trial Court, the Court of

Appeals said (p. 369) :

‘‘Tt fails to distinguish between efficient and ineffi-

cient causes ; between remote and immediate causes ; be-

tween circwmstances that are causes and those that are

mere conditions; and fails to admit of the possibility

of an efficient intervening cause which, notwithstanding

other causes, may come to be in some circumstances, the

sole efficient cause of the accident, and so its proximate

cause.’’ (Emphasis added.)

The language of the Court in the case just cited may be

used to describe the charge in the instant case. The peti-

tioner was entitled at least to have the jury instructed as to

the difference between legal cause and legal condition.

It is submitted that the failure of the trial judge to charge

as requested was prejudicial error, and the Court of Appeals

should have reversed for that reason.

IV.

THE TRIAL JUDGE ERRED IN REFUSING TO ADMIT EVIDENCE

OFFERED BY THE PETITIONER THAT THE RESPONDENT IS RE-

CEIVING A DISABILITY PAYMENT TO THE COST OF WHICH THE

PETITIONER CONTRIBUTED.

It is petitioner’s contention that it was entitled to put in

evidence in mitigation of damages the facts (1) that Leary

was receiving a pension based on his disability under the

provisions of the Railroad Retirement Act of 1937 (45

U.S.C. Sec. 228a et seq.), and (2) that the petitioner had

contributed to the cost of this pension under the provisions

of the Carriers Taxing Act (45 U.S.C. Sec. 263).

A similar question was raised in the case of McCarthy v.

Palmer (2d Cir. 1940), 113 F. (2d) 721. There the Court

overruled the defendant’s contention on the ground that the

trial judge had found as a fact that the plaintiff was not

totally and permanently disabled.

That case, therefore, is not a precedent in the present situ-

ation, and the language, by implication, indicates that, if

the disability were proved, the defendant would have been

entitled to the benefit at least of the amount paid in by it for

the plaintiff ’s pension.

In Hetrick v. Reading Co., 39 F. Supp. 22 (1941), the Dis-

trict Court of New Jersey, after reviewing the McCarthy

case, ruled that the defendant was not entitled to set up its

payments in mitigation of damages.

We do not believe that the precise question has been

passed upon by this Court.

It is submitted that in principle evidence should be ad-

mitted to show at least the extent of the petitioner’s contri-

bution to the disability payments. The petitioner is to some

extent paying twice for the same disability. The situation

is not the same as that where the injured person gets bene-

fits from an insurance policy for which he alone has paid the

premiums, or where he gets compensation from a collateral

_ source. In this case the petitioner has contributed toward

whatever annuity the respondent is receiving. This fact

relates the situation to the familiar principle that a plaintiff

cannot set up as an element of damage anything as to which

he has received compensation from defendant.

Southwestern Brewery & Ice Co. v. Schmidt, 226

U.S. 162, 169.

Conclusion.

For the reasons stated in the petition and in this brief the

application for a writ of certiorari should be granted.

PAUL F. PERKINS,

Attorney for Petitioner.

Noe. W. DEERING,

Cuar.es W. Bartuert,

Joun O. Parker,

Exy, Barruerr, THompson & Brown,

Of Counsel.

THE NEW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPANY,

Petitioner,

vs.

JOHN W. LEARY,

Respondent,

—_ =

BRIEF ON BEHALF OF RESPONDENT IN OP-

POSITION TO THE PETITION FOR WRIT

OF CERTIORARI.

——

O’NEILL, HIGGINS & LATTO,

Attorneys for Respondent,

No, 369 Lexington Avenue, —

Borough of Manhattan,

City of New York.

Tomas J. O’Nem1,

Joun V. Hisers,

Of Counsel.

Hicaina & Hicerns, Inc., Law Printsrs, 48 New CuHameurs St., N. Y.

INDEX

— ~o—=

PAGE

Opinions of the Courts Below.........cccsssccsssessssessscgesseeeeees 1

Summary and Short Reply to Petition... cesses 1

Ghatembaiank: OF Uk Oa iecicsicaieenetctessiioetcinsisnesnjnnscaventnatins 6

ATgUMeNt .....csscsocsrcecsorerersessssnenereerenencsencenenenssssnenenensnansaranseenens 12

Points:

I—AIl the evidence therein established that

this defendant’s train had a defective air-

brake-hose that ‘‘burst’’, and this caused

this express train to make a sudden unsched-

uled and unintended stop in an unguarded

and very dangerous place on a dark-

foggy night, on a trestle-bridge over a

highway on defendant’s right-of-way; and

this defective air-brake-hose indisputably

was a violation of the United States

‘Safety Appliance Act’’ which ‘‘result-

ed’? in immediate, unexpected and un-

known dangerous hazards, and plaintiff’s

injuries.

However, the District Judge left this

question of ‘‘causation’’ to the jury as a

question of fact (R. 94-95).

Sophistical contentions and the intro-

duction of dialectic subtleties in this

Court is not permissible to overturn or

avoid the established fact of defendant’s

causal neglect (Coray v. So. Pac. R. Co.,

385 U. S. 520),—even though it is claimed

INDEX—(Continued)

PAGE

that the injury resulted only in part from

the defendant’s neglect—or that defend-

ant’s negligence was merely ‘‘contribu-

tory’’ (Coray case, supra). 2

All of the facts and circumstances of.

this ‘“‘bursting’’ of the air-brake-hose,—

stopping this express train in this very

dangerous place, and plaintiff’s injuries,

‘‘were all inseparably related to one an-

other in time and space’’. (Coray case,

supra.) 12

II—The Court’s charge to the jury on ‘‘causa-

ation’’ was adequate, complete, and indeed

replete (R. 93, 94, 95, 99, 100). The

‘*record’’ presents no question reviewable

here as to ‘‘legal causation’’;—there was

no objection to the charge as required

by Rule 51 of the Federal Rules of Civil

Procedure; nor any petitioner’s request

for instruction on any such question,

and no exception to the Court’s charge

on causation, which charge petitioner now

seeks to review in this Court 24

I1I—Neither the petitioner’s answer herein, nor

this appeal record, PRESENTS its claim

here relating to alleged payments from

the Government to the plaintiff under the

Railroad Retirement Act; and in any

event this claim is herein viterly unsound

and without merit

iii

INDEX—(Continued)

PAGE

Concitusion—The application for a writ of

certiorari should be denied fina! ae

PBS: -cikicicc.contsncnicimonnidaiindinsicensnaianonebeicabain 44

United States Code, Title 26 sichohscbesaaimeh hipaa. ae

United States Code, Title 28, Rules of Civil Pro-

WII sa sonstaincasinspseoctetnadsccheliaacnsnibanihitciencivebdicabsiai 46

United States Code, Title 45, Chapter 9...cscss-. 48

United States Code, Title 45, Chapter 1.0... 48

United States Code, Title 45, Chapter 2.0.0.0... 50

AUTHORITIES CITED

ey Caen

Affolder v. New York, Chicago & St. L. Railroad Co.,

339 U. S. 96 17

Bailey v. Central Vermont Railway, Inc., 319 U. S.

350: at page 354 . 21

Blair v. Baltimore & Ohio Railroad Co., 323 U. S.

- 600 « lies 3

Brabham v. Baltimore & O. R. Co0., 220 BF. 85 ....ccsssenees 42

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

MD in 19

Brown v. New York Central R. R., 53 F. (2d) 490 Mies 21

Briggs v. N. Y. C. @ H. H. R. R. Co.,72 N. Y. 26 sahaleieos 42

Carter vy. Atlanta & St. Andrews Bay Railway Co.,

338 U. S., 430... jeacnipeidiiieaaaednsesniniise 15, 19

INDEX—(Continued)

PAGE

Chicago, Great W. R. R. v. Peeler, 140 F. (2d) 865... 38

Coray v. Southern Pacific Co., 335 U. S. 520 ......13, 14, 17,

32, 36

Eglsaer v. Scandrett, LBL F. (2d) 562.....cssesseereressensnes 20

Hetrick v. Reading Co., 39 F. Supp. 22....svsvsssssssersnes 42, 43

Kress, S. H. Co. v. Bullock Shoe Co., 56 F. (2d) 713... 42

McCarthy v. Palmer, 29 Fed. Supp. 585... 42, 43

Myers v. Reading Co., 331 U. S. 477 pone

New York, New Haven & Hartford Railroad Co, v.

Zermani, 200 F. 2d 240... is oiecbciea 30, 31

Northern Pacific Ry Co. v. Reynolds, 68 F. Supp. 492 40

O’Donnell v. Elgin, Joliet & Eastern Railway Co., 338

U. S. 384 .. ee paiva Bee? «|

St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.

(2d) B49 cree 18

Terry v. Jewett, 78 N. Y. 338 ‘ 42

Urie v. Thompson, 337 U.S. 163 16

a a

7 vo

INDEX—(Continued)

STATUTES

—_—o—

PAGE

Carriers Taxing Act (26 U. S. C. Int. Rev. Code,

See, 1500, et seq.) ceccccccccccsecoses sainiiapiincnisiciceubbanndawsiaies 5, 40

Fair Labor Standards Act of 1938, 29 U. S. C., See.

201, et seq. dees cussesansuactaginesoonaisonestbsonasnsasenentasteacboces 41

Federal Employers’ Liability Act, Title 45, See.

1AR sinseopsausdhsaepioaansioscnsabelnis ; ; 21, 39, 42

Federal Rules of Civil Procedure

ech oe ORCL LOT: 4, 22, 23, 29, 30, 31, 34, 36

FORME si nscrmbaiiantcuiecumannin ce 5, 6, 38

BRM DD. wirenibsoninunsibmuiniomtnisicien GL es 5, 38

Interstate Commerce Commission ..ccccrerrccssssssecccsssssssss..., 42

Public Service Commission ooicccccccrsrvcccsssesssssscooooccss, 42

Railroad Retirement Act of 1937 (45 U. 8. C., See.

TR, OU DOU icici 5, 38, 39, 40, 41, 42, 43

Railroad Unemployment Insurance Act, 45 U. S.C,

Sec. 351, ef s€q. cece donsntinibh 40

Railway Labor Act, 45 U. S. C., Sec. 351, et sequin... 40

COCtM BOOWED AOE Socvcicsincsscosectasiariebiictaacs 40

Safety Appliance Act .....0.0 1, 2, 4, 14, 22, 23, 27, 32,

33, 34, 36

Title 26, U. S. C. Sec, 1530 39, 40

a OO

Supreme Court of the United States

Tue New York, New Haven anp Hartrorp

RatLroap Company,

Petitioner,

Vs.

Joun W. Leary,

Respondent.

~~ wv

a as

BRIEF ON BEHALF OF RESPONDENT IN OP-

POSITION TO THE PETITION FOR WRIT

OF CERTIORARI.

Opinions of the Courts Below

The opinion of the District Court (Wyzanski, J.) (R.

111-113) is not reported. The opinion of the Court of

Appeals (R. 119-131) is reported in 204 F, 2d 461.

Summary and Short Reply to Petition

The petitioner, in its brief in support of its petition

for a writ of certiorari, contends (Argument I, p. 10)

that although this respondent’s verdict was based upon

the petitioner’s violation of the Safety Appliance Act

(in that the air-brake-hose on its express train in question

‘‘burst’’ and suddenly stopped the train in a very danger-

ous place at night—where there were no lights and it was

foggy and very dark—with the engine partly over its

short trestle over a public highway, which all led directly

to the respondent, the conductor of the train, being

severely injured while attempting in this dangerous situa-

tion to have the ‘‘burst’’ air-brake-hose replaced) the

Safety Appliance Act was not violated, and that the pro-

visions of Sections 1 and 9 of the Safety Appliance Act

are not mandatory.

This amazing suggestion or contention of the peti-

tioner is utterly unsound and contrary to the record and

all of the relevant decisions of this Court.

The petitioner then contends further in its argument

(II, p. 14) that if there was a violation of the Safety

Appliance Act,—the evidence was not sufficient to war-

rant submitting the case to the jury on the question of

proximate cause.

We will hereinafter call attention to the parts of the

record which will demonstrate that the violation of the

Safety Appliance Act suddenly stopped this defendant’s

express train in the very dangerous place as aforesaid, and

this stoppage in and of itself caused the respondent, in

accordance with his duty as conductor of the train, to do

all he reasonably could to have this train start again and

proceed to its destination, and while so doing he was very

severely injured;—and that the petitioner is liable be-

cause, in the language of Mr. Justice Black, ‘‘the negli-

gence of the employer may be determined by viewing its

conduct as a whole. And especially is this true * * *

where the several elements from which negligence might

be inferred are so closely interwoven as to form a single

* (All italics and emphasis herein are Respondent’s).

pattern, and where each imparts character to the others.”

(Blair v. Baltimore & Ohio Railroad Co., 323 U.S. 600).

This justifies respondent’s counsel at this point to

herein immediately call attention to the District Trial

Judge’s opinion (R. 111-113), and especially to where the

Court said:

‘‘With regard to the issue of causation, I point

out that once the train had stopped due to a de-

fective braking mechanism, a defective hose, it

became incumbent upon the conductor, the plain-

tiff in this case, in accordance with his obligation

under his employment contract, to go back and get

a second hose (the first hose not being satisfac-

tory). Having procured the second hose he had

two choices as to which side of the train he should

use in proceeding backward with the hose. Which-

ever choice he took the jury might easily have

thought presented elements of danger. On the one

side was the track on which a train might be go-

ing in an opposite direction from the direction in

which the conductor’s train was going; on the

other side was uncertainty, with the possibility of

a bridge or a bank without a sufficient safeguard

or protection. For reasons which the jury thought

adequate, the plaintiff chose to go on the side on

which there was no other track, As he proceeded

he slipped and fell. It is not without relevance

that a man who went to the rescue of the plaintiff

started and slipped in the same direction,—thus

fully supporting any inference the jury may have

drawn that the protection was inadequate and that

the fall was not due to the carelessness of the

plaintiff, if that carelessness may under any cir-

cumstances be thought to be relevant in a case

arising under a statute which does not open up

the possibility of the defense of contributory negli-

gence or the defense of the assumption of risk. In

short, it seems to me, within the language of Mr.

Justice Black in the case already referred to, the

plaintiff proved enough to permit a jury to make

an inference that violation of the Federal Safety

Appliance Act was in law the adequate cause of

the damages sustained.’’

It is not essential to add anything more to the ques-

tion of ‘‘causation’’ raised by the petitioner than to pre-

sent the above quotation,—which conclusively shows that

the petitioner’s violation of the Act was not only a prozi-

mate cause or one of the causes, but in fact the funda-

mental, basic, initial and continuing cause of plaintiff’s

injuries,

The petitioner took no exception to the Court’s charge

and made no request to instruct the jury upon the ques-

tion of causation, as required by Rule 51 of the Federal

Rules of Civil Procedure, even when the Trial Judge in

effect suggested that petitioner might possibly desire to

make some requests (R. 102). If the petitioner desired

any further charge upon the matter of causation, then,

under the aforesaid Rule 51, petitioner was obliged to

make a request and objection before the jury retired to

consider its verdict, ‘‘ stating distinctly the matter to which

he objects and the grounds of his objection * * *”?,

+ a

We believe that it will be found that the defendant’s

Point IV is obviously without any merit whatever.

The Court of Appeals opinion herein (204 F. 2d 461)

in Subdivision 5, states at page 467:

‘*Appellant’s final contention is likewise with-

out merit. There was no prejudicial error in re-

fusing to allow defendant to show that plaintiff

was receiving disability pension from the United

States Government under the Railroad Retirement

Act which should be considered in mitigation of

damages.”’

The opinion then goes on in detail, in this Subdivision

5 and Subdivision 6, to demonstrate how baseless this

claim is.

In addition to all of the above on this question, we

call the attention of the Court to the fact that this al-

leged defense was not pleaded (R. 12-14). See Federal

Rules of Civil Procedure, General Rules of Pleading,

Rule 8 (c) and 13. Under these rules petitioner was

obliged to plead any alleged payment or set-off in reduc-

tion of damages.

The petitioner’s contention is that it was entitled to

put in evidence, in mitigation of damages, the fact that

Leary was receiving a pension based on a disability

under the provisions of the Railroad Retirement Act of

1937 (45 U. S. C., Sec. 228a, et seq.), and that petitioner

had contributed to the cost of this pension under the

provisions of the Carriers. Taxing Act, (26 U. S. C., Int.

Rev. Code, See. 1500, et seq.).

Respondent contends that neither the petitioner’s an-

swer herein (R. 12-14) nor the appeal record presents its

claim, and in any event this claim is utterly unsound and

without merit. |

This contention of: the petitioner was so obviously

without any foundation or merit that the District Judge

did not even refer to it,—probably because it was not in

any way presented. (See Federal Rules of Civil Pro-

cedure, General Rules of Pleading, Rule 8 (ec), which re-

quires a defendant to set forth any alleged payments or

set-off in reduction of damages.) Having failed to so

plead, the petitioner could not put in any evidence to

establish any alleged set-off, and certainly cannot now

raise the question upon this appeal. Also see Rule 13,

same Rules.

As a matter of fact and law the petitioner made no

such payments to the respondent (R. 66-68).

Therefore, obviously, this petitioner’s last argument

is demonstrably without any merit whatever.

Statement of the Case

The plaintiff was the conductor on defendant’s express

passenger train which left Boston for New York at 11:45

p. m. on September 12, 1946 (R. 22). The train consisted

of either seven or eight cars (R. 22, 106; Ex. 14a), at the

time it made this unscheduled and unintended stop shortly

after the train passed the railroad station at Clinton,

Connecticut (R. 56).

At that time Geary, the engineer, told the fireman,

Scanlon, that he thought the brakes were ‘¢sticking’’, and

asked Scanlon to look back and see whether he could see

‘‘fire flying’’, which term he used to indicate sparks caused

by friction of the brakes against the wheels (R. 74).

The train involuntarily came to 4 stop without the

engineer applying the air, because ‘‘of a defective air-

brake-hose and the brakes sticking’’—and the train there-

fore made an unscheduled and unintended stop.

As stated in petitioner’s brief (p. 5), of course the

plaintiff, Leary, was unaware at the time the train stopped

that the front part of the locomotive ‘was resting on @

bridge or trestle over a highway described as Bishop

Street. This was an open-sided trestle bridge without

any railing along the right of way. (Photographs of the

bridge were introduced in evidence and appear in the

Record on pages 104, 105, 108, 109 and 110.) |

Before the train stopped, the plaintiff, Leary, was rid-

ing in the head coach immediately to the rear of the bag-

gage car. He heard the brakes go on hard im emergency,

and the train came to this unscheduled sudden stop (R.

24-25).

At the trial it was conceded that this unintended, un-

scheduled stoppage of this express train was caused by the

air-brake-hose bursting, which caused the compressed air

to go on in emergency and stop it (R. 84; also Exs. 14A

and 14B, R. 106-107).

Then the ‘plaintiff got his electric lantern and “‘went

out’? and met the engineer coming up from the engine,

heading back to the rear end of the train from the engine.

The engineer had a regular engine ‘‘torch’’ which burns

kerosene—in a sort of an open flame (R. 25).

From Boston to New York is called westbound and

the engineer’s side of that train was on its right, or the

right-hand side—the north side—of the train. At this

point there were two tracks, one westbound from Boston

and one eastbound toward Boston (R. 26).

The engineer told Leary he had a bad air leak so they

went towards the rear to find it. They walked back on

the same side—the engineer’s side (R. 26).

When they got back they heard the air escaping from

the other side and the brakeman went in and opened the

trap. They then went from one side to the other (R. 26).

The air hose was on the head end of the head sleeper.

‘‘So we went over and found the broken air

hose * * * the engineer had a hose, I can’t quite

remember, either that or he went back to the

engine to get a hose, but when he come down, him

and the brakeman was taking the old hose off,

which is screwed into a train pipe or water pipe,

and I happened to notice the hose he brought

down, instead of being a regulation air hose, it is

a spreader, it has a coupler on both ends, One

end of the air hose has threads on it that you screw

into the train line.

‘*T said, ‘The air hose is no good, I will go back

and get another one while you are taking that one

off’.

(The difference is) ‘‘the regular hose that would

go on the train has a coupler on one end of it

that couples with the air hose on the next car. On

the other end it has threads that screw into the

train line that lets the air pass through.

‘‘T went up to the engine. I took the one he

brought down, the spreader, and I went up to the

engine to get the regulation air hose,

‘When I got up to the head end of the baggage

car, the tool box was on the right hand side of the

engine so I climbed between the tank of the engine

and head of the head baggage car and I got down

and the fireman stuck his head out of the gangway

and he said, ‘What do you want, Jack’ and I said,

‘T have to have another hose.’ He said, ‘I got ©

one up here’ and I said, ‘All right’ so I walked up,

to the gangway of the engine and he handed me

one hose and I handed him the other.

‘‘Q. Before you go any further I want to ask

you this: when you left the place where they took

off the hose to go back toward the engine did you

go back on the same side you had come down on?

A. No, I went up on track 2 side on account of the

bad walking on the engineer’s side.

‘‘Q. Tell us now what you mean, what you no-

ticed about the bad walking on the engineer’s side

when you were walking down from the engine to

the place opposite where the hose was broken. A.

Well, there was a lot of loose ballast there. The

track—there was a lot of that spread all around.

In other words the track looked as though there

had been new work done and it wasn’t properly

trimmed,

* * * . . * * bd

‘‘When a track is properly trimmed there is a

space to walk. There is a space on the other side.

~The rock baiiast is, what they call the shoulder of

it, is up there and over here is clear ground.

‘There was a lot of loose rock ballast and it

was hard walking. That is why I walked up on

track 2 side, I walked up on the ties, it was better

walking, more level, solid footing.

“Q, Was there solid footing on that side? A.

On track 2?

‘<Q, On the place where you came down? A

No, bad walking.’”? (R. 26-28.)

After he got the hose he started to walk around the

head of the engine so as to go back track 2, and ‘‘I prob-

ably took half a dozen steps, I don’t know, and I just

walked right into space’ (R. 30).

Plaintiff then said that, when he ‘‘went off’’, the place

where he landed (as he knows now) was in the middle of

the street (R. 34). There was an underpass going under-

neath the tracks, and there were no lights or illumination

around there at all in the way of lamps, lampposts, elec-

trical or otherwise (R. 34).

It was a dark night with a lot of ground fog. You

could see the ground, but it hung above the ground.

You could not see the front of the locomotive, and be-

fore he was hurt he did not know whether or not any part

of the locomotive was over the highway or on this bridge,

and when he was walking just before he was hurt he did

not know he was near any bridge (R. 34).

He landed on his feet and went backwards. He did

not know where he was sving (R. 34).

‘“‘Q. And finally did you lay down or roll over

or just what was your position? A. I fell back-

wards on my—I was sitting down when I come

to,’? (R. 35.)

He tried to get off the street, but couldn’t.

Scanlon, the fireman, heard the ‘‘ery for help” (R,

80), and ‘‘I went down the gangway on the engineer’s

side and ran towards the direction of the ery * * * I got

over to the edge of the bridge and I stopped myself im

time. Looked down and saw Leary on the street below’’

(R. 81): :

““Q, Then were « u asked this question and did

you give this answer. (Reading):

«<Q. You say you got over to the edge of the

bridge and stopped yourself in time. What do you

mean by that? A. I went over towards the bridge

abutment there, too, and I just caught myself on

the edge.’ ** , Pe

‘“‘A, That’s right.

“‘Q. That’s true, isn’t it? A. That’s right.

““Q. And that is what you meant, just caught

yourself on the edge or you yourself would be over;

is that right? A. That’s right.’’ (R. 81-82.)

Also see the following comment of the Court on this

fact (R. 112):

‘‘It is not without relevance that a man who

went to the rescue of the plaintiff started and

slipped in the same direction,—thus fully support-

ing any inference the jury may have drawn that

the protection was inadequate and that the fall

was not due to the carelessness of the plaintiff,

if that carelessness may under any circumstances

be thought to be relevant in a case arising under

a statute which does not open up the possibility

of the defense of contributory negligence or the

‘defense of the assumption of risk. In short, it

seems to me, within the language of Mr. Justice

Black in the case already referred to, the plaintiff

proved enough to permit a jury to make an infer-

ence that violation of the Federal Safety Appli-

ance Act was im law the adequate cause of the

damages sustained,’’

The air brakes of the train when coupled together

constituted one continuous unit. A defect or breakage

of one hose on one car put all the brakes in the entire

train line in emergency and made them all inoperative.

Ic was not a question of only one air hose and one brake

on one car becoming inoperative—the brakes on every

car in the continuous line went into emergency and they

were all inoperative.

Finally, the engineer and brakeman made a cradle out

of their arms and carried him over the bank, and lifted

him into the head coach (R. 36).

ARGUMENT

All the evidence herein established that this defend-

ant’s train had a defective air-brake-hose that “burst”,

and this caused this express train to make a sudden,

unscheduled and unintended stop in an unguarded and

very dangerous place on a dark-foggy night, on a trestle-

bridge over a highway on defendant’s right-of-way; and

this defective air-brake-hose INDISPUTABLY was a

violation of the United States “Safety Appliance Act”

which “resulted” in immediate, unexpected and unknown

dangerous hazards, and plaintiff’s injuries.

However, the District Judge left this question of

“causation” to the jury as a question of fact (R. 94-95).

Sophistical contentions and the introduction of dia-

lectic subtleties in this Court is not permissible to. over-

turn or avoid the established fact of defendant’s causal

neglect (Coray v. So. Pac. R. Co., 335 U. S. 520),—

even though it is claimed that the injury resulted only

in part from the defendant’s neglect—or that defendant's

negligence was merely “contributory” (Coray case,

supra).

All of the facts and circumstances of this “bursting”

of the air-brake-hose,—stopping this express train in

this very dangerous place, and plaintiff's injuries, .“‘were

all inseparably related to one another iu; time and space”.

(Coray case, supra.)

It is very clear that the Act commands a railroad

company not to operate an interstate railroad train, such

as the one involved herein, with defective power-brakes.

It is also undeniable that the abrupt and unexpected

stoppage of this train, due to its defective air-brakes,

sureiy resulted in immediate, unexpected and unknown

dangers to the train crew.

The provisions of this Act with reference to power

train brakes apply not only to cases where the injury is

the direct and immediate result of failure to stop the trai,

but also where the injury results from thus causing these

unexpected and unknown hazards which result im em-

ployee’s injuries—as they frequently do. (See quotations

in this brief, pages 14 to 22, from Coray v. Southern Pacific

Co., 335 U. S. 520, and other cases et seq.)

When the air-brake-hose burst on this night, about

3:40 a. m., where it was very dark, with a ground fog,

and the front of the engine was ona rather short trestle-

bridge over a highway which crossed underneath, and the

location of this engine on the trestle-bridge was not ob-

servable by the plaintiff or any member of the train crew

(R. 75, 104-105, 108-110), it then became the duty of the

train crew, and particularly the conductor, to see that this

express train, and particularly its air-brake-hose and

apparatus, were repaired and placed in such condition as

to continue the trip as soon as possible; and plaintiff

therefore proceeded to do his work properly—the details

of which are set forth in the statement of facts in this

brief. While doing so, and in endeavoring to get back

with a new air-brake-hose to the place where the old

brake-hose had broken, he fell onto the highway under-

neath and received ‘his injuries. So it will be seen that

the fundamental, initial and continuous cause of plain-

tiff’s injuries was a result of said violation.

No better or more complete reply and answer to the

appellant’s various contentions herein on the issue of

the injuries being a result ‘‘in whole or in part”? of de-

fendant’s violation of the Safety Appliance Act cou!d be

made than that set forth in the stenographic record of

the hearing on the motion for a new trial herein, in which

Wyzanski, D. J., directed himself to that specific ques-

tion (R, 112):

Of course, Judge Wyzanski’s decision is in complete

accordance with the following decisions of the United

States Supreme Court:

In Coray v. Southern Pacific Co., 335 U. 8. 520 (decided

January 3, 1949), Mr. Justice Black, writing for the Court,

said at page 521:

‘“The train unexpectedly stopped just before the

crash occurred because the air in its brake lines

escaped, thereby locking the brakes. The air had

escaped because of a violation of the Federal

Safety Appliance Act in that the threads on a

valve were so badly worn that a nut became dis-

connected.’’

And at page 522:

‘‘First, We cannot agree with the State Su-

preme Court’s holding that although the railroad

ran its train with defective brakes it thereby ‘vio-

lated no duty owing’ to the decedent. That court

said that the object of the Safety Appliance Act

‘insofar as brakes might be concerned, is not to.

protect employees from standing, but from moving

trains’.

‘“‘We do not view the Act’s purpose so nar-

rowly. It commands railroads not to run trains

with defective brakes. An abrupt or wnexpected

stop due to bad brakes might be equally dangerous

to employees and others as a failure to stop a train

because of bad brakes. And this Act, fairly inter-

preted, must be held to protect all who need pro-

tection from dangerous results due to maintenance

or operation of congressionally prohibited defec-

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

dith, 292 U. S. 589, 597. Liability of a railroad

under the Safety Appliance Act for injuries in-

flicted as a result of the Act’s violation follows

from the unlawful use of prohibited defective equip-

ment ‘not from the position the employee may be

in or the work which he may be doing at the mo-

ment when he is injured.’ Brady v. Terminal R.

Assn., 303 U. S. 10, 16; Lowisville & N. R. Co. v.

Layton, 243 U. 8S. 617, 621.”’

In Carter v. Atlanta & St. Andrews Bay Railway Co.,

338 U. S. 430 (decided December 19, 1949), the Court said

at page 434:

‘In this situation the test of causal relation

stated in the Employers’ Liability Act is applic-

able, the violation of the Appliance Act supplying

the wrongful act necessary to ground liability

under the F. E. L. A. See Moore v. Chesapeake &

Ohio R. Co., 291 U. S. 205, 216 (1934) ; O’Donnell

v. Elgin, Joliet & Eastern R. Co., supra; Coray

vy. Southern Pacific Co., 335 U. 8S. 520 (1949).

Sometimes that violation is described as ‘negli-

gence per se’, H. R. Rep. No. 1386, 60th Cong.,

1st Sess., p. 6; San Antonio & A. P. R. Co, v. Wag-

mer, 241 U. S. 476, 484 (1916); but we have made

clear in the O’Donneli case that that term is a con-

fusing label for what is simply a violation of an

absolute duty.

**Once the violation is established, only causal

relation is in issue. And Congress has directed

liability if the injury resulted ‘in whole or in part’

from defendant’s negligence or its violation of the

Safety Appliance Act, We made clear in Coray

vy. Southern Pacific Co., supra, 335 U. S. at 523,

that if the jury determines that the defendant’s

breach is ‘a contributory proximate cause’ of in-

jury, it may find for the plaintiff. See also Union

Pacific R. Co. v. Hadley, 246 U. 8. 330, 333 (1918) ;

Spokane & I. E. R. Co. v. Campbell, 241 U. 8. 497,

510 (1916).”’

In Urie v. Thompson, 337 U. S. 163 (decided May 31,

1949), the Court said at page 189:

‘For where §1 ‘refers to ‘‘any defect or in-

sufficiency, due to its negligence, in its cars, engines,

appliances”’, ete., it clearly is the legislative intent

to treat a violation of thc Safety Appliance Act

as ‘‘negligence’’—what is sometimes called neg-

ligence per se.’ San Antonio & A. P. R. Co. v.

Wagner, 241 U. S. 476, 484.

“In this view the Safety Appliance Acts, to-

gether with the Boiler Inspection Act, are sub-

stantively if not in form amendments to the Fed-

eral Employers’ Liability Act. They dispense, for |

the purposes of employees’ suits, with the neces- —

sity of proving that violations of the safety stat-

utes constitute negligence; and making proof of

such violations is effective to show negligence as

a matter of law. Thus taken, as has been the con-

sistent practice, the Boiler Inspection and Safety

Appliance Acts cannot be regarded as statutes

wholly separate from and independent of the Fed-

eral Employers’ Liability Act. They are rather

supplemental to it, having the purpose and effect

of facilitating employee recovery, not of restrict-

ing such recovery or making it impossible.’’

See also O’Donnell v. Elgin, Joliet € Eastern Railway

Co., 338 U. S. 384; Affolder v. New York, Chicago & St.

L. Railroad Co., 339 U. S. 96; Myers v. Reading Co., 331

U. S. 477.

The Supreme Court in Coray v. Southern Pacific Co.,

335 U. S. 520 (decided January 3, 1949), said at page 523:

‘‘In this case where undisputed evidence estab-

lished that the train suddenly stopped because of

defective air-brake appliances, petitioner was en-

titled to recover if this delective equipment was

the sole or a contributory proximate cause of the

decedent emplovee’s death. Davis v. Wolfe, 263

U. S. 239, 243; Spokane & I. E. R. Co. v. Campbell,

941 U. S. 497, 509, 510.”’

And at page 524:

‘The language selected by Congress to fix lia-

bility in cases of this kind is simple and direct.

Consideration of its meaning by the introduction

of dialectical subtleties can serve no useful inter-

pretative purpose. The statute declares that rail-

roads shall be responsible for their employees’

deaths resulting in whole or in part from defec-

tive appliances such as were here maintained. 49

U. 8. Cc. $51. And to make its purpose crystal

clear, Congress has also provided that ‘no such

employee * * * shall be held to have been guilty

of contributory negligence in any case’ where a

violation of the Safety Appliance Act, such as

the one here, ‘contributed to the * * * death of

such employee.’ 45 U. S. C. $53. Congress has

thus for its own reasons imposed extraordinary

safety obligations upon railroads and has com-

manded that if a breach of these obligations con-

tributes in part to an employee’s death, the rail-

road must pay damages. These air-brakes were

defective; for this reason alone the train suddenly

and unexpectedly stopped; a motor track car fol-

lowing at about the same rate of speed and op-

erated by an employee looking in another direc-

tion crashed into the train; all of these circum-

stances were inseparably related to one another

in time and space. The jury could have found

that decedent’s death resulted from any or all of

the foregoing circumstances.”’

In St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.

(2d) 949 (decided June 23, 1950), the Circuit Court for the

Eighth Circuit said at page 952:

‘‘And as to causal relationship, the court in

such a case equally has no right to direct a ver-

dict on legalistic refinements between remote and

immediate causation. Cf. Carter v. Atlanta & St.

Andrews Bay Ry. Co., supra, 338 U. S. 430; 70 S.

Ct. at pages 228 and 229. The Federal Employers’

Liability Act, 45 U. S. ©. A., See. 51, et seq., which

is the vehicle of suit for injury from a violation

of a Safety Appliance Act, gives the employee a

recovery right, even though the violation has been

only ‘in part’ responsible for the injury. 45 U.S.

C. A., Sec. 51. The causal question therefore too

must be allowed to go to the jury in every case

where there is probative evidence from which it

would be rationally possible for any one to be

persuaded that the violation has been ‘a contrib-

utory proximate cause’ of the injury. Coray v.

Southern Pacific R. Co., 335 U. S. 520, 523, 69 S.

Ct. 275, 277, 93 L. Ed, 208. The choice between

the conflicting theories of causation, each of which

is a rational possibility on some probative fact

or facts, is one which the jury alone is entitled to

make. Ellis v. Union Pacific R. Co., 329 U. S. 649,

653, 67 S. Ct. 598, 600, 91 L. Ed. 572.”

In Carter v. Atlanta & St. Andrews Bay Railway Co.,

338 U. S. 430 (decided December 19, 1949), the Court said

at page 434:

‘‘Once the violation is established, only causal

relation is in issue. And Congress has directed

liability if the injury resulted ‘in whole or in part’

from defendant’s negligence or its violation of

the Safety Appliance Act. We made clear in

Coray v. Southern Pacific Co., supra, 335 U. S.

at 523, that if the jury determines that the de-

fendant’s breach is ‘a contributory proximate

cause’ of injury, it may find for the plaintiff. See

also Union Pacific R. Co. v. Hadley, 246 U. S. 330,

333 (1918); Spokane & I. E. R. Co. v. Campbell,

241 U. S. 497, 510 (1916).”’

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

10 (decided January 31, 1938), the Court said at page 15:

‘“The statute has been liberally construed ‘so

as ta give a right of recovery for every injury

the proximate cause of which was a failure to

comply with a requirement of the Act.’ Swinson

v. Chicago, St. P.. M. € O. Ry. Co., 294 U. 8. 529,

531. In Davis v. Wolfe, 263 U. S. 239, 243, re-

viewing the earlier cases, the Court held that one

can recover ‘if the failure to comply with the re-

quirements of the act is a proximate cause of the

accident, resulting in injury to him while in the dis-

charge of his duty, although not engaged in an

operation in which the safety appliances are specif-

ically designed to furnish him protection.’ ”’

The Court of Appeals for the Seventh Cireuit in

Eglsaer v. Scandrett, 151 F, (2d) 962 (decided October

25, 1945), devoted its entire opinion to an analysis of the

most recent decisions of the Supreme Court with refer-

ence to the doctrine of proximate cause, which at one

point in a quotation in its opinion it describes as ‘‘ap-

proximate cause’. The opinion is extremely interesting

because it makes a complete analysis of the authorities

and also the textbook writings on this question. The

judge writing the opinion himself stated at page 565:-

‘‘Perhaps the reconciliation of the earlier ac-

cepted, sometimes called the old-fashioned idea,

of ‘proximate cause’ as the direct or efficient cause

of the accident (as would be the district court’s

illustration of a shock from a defective electric bell

ringer causing injuries and death) in cases where

this statute applies, and the conception of prox-

imate cause which now obtains, is to be found

in the enlarging phrase of the statute. It pro-

vides that if the railroad’s negligence ‘in part’

results in the injuries or death, liability arises.

Under the old concept of proximate cause, that

cause must have been direct, the complete, the

responsible, the efficient cause of the injury. Con-

tributing and remotely related causes were not

sufficient. Now, if the negligence of the railroad

has ‘causal relation’—if the injury or death re-

sulted ‘in part’ from defendants’ negligence, there

is liability.

‘“‘The words ‘in part’ have enlarged the field

or scope of proximate causes—in these railroad

injury cases. These words suggest that there

may be a plurality of causes, each of which is

sufficien‘’ to permit a jury to assess a liability.

If a cause may create liability, even though it be

but a partial cause, it would seem that such partial

cause may be-a producer of a later cause. For

instance, the cause may be the first acting cause

which sets in motion the second cause which was

the immediate, the direct cause of the accident.

Such a rule found some support in Wisconsin be-

fore the statute in question was passed. In Stef-

anowski v. Chain Belt Co., 129 Wis. 484, 109 N. W.

532, 533, 7 L. R. A., N. S., 955.”?

See also Brown v. New York Central R. R., 53 F. (2d)

490; Bailey v. Central Vermont Railway, Inc., 319 U. S.

300, at page 354:

There are opinions in cases decided many years be-

fore the cases cited and quoted in this brief which do not

recognize the recent development of the doctrine of causa-

tion under the Federal Employers’ Liability Act estab-

lished by the above recent line of decisions of the Su-

preme Court of the United States. These older decisions,

as far as they relate to the doctrine of causation, are

obsolete and, in effect, overruled by the decisions cited

by the respondent.

In this particular case the jury had the benefit of

a very clear, definite and informative charge of the Court

on the principles of law by which the jury were to be

guided in deciding the questions of defendant’s liability

herein.

Judge Wyzanski charged the jury, in part, as follows:

‘*The lawyers in the case have now agreed that

the only problems which have to be put to you arise

under the Federal Safety Appliance Act, That is

an Act of Congress which has been on the books

now for over half a century and has to do with

the duty which is imposed upon the owner and

operator of a railroad. A railroad is required, as

a matter of absolute duty, to have safe brakes and

appliances in connection with the braking mechan-

ism; that is to say, it is the absolute obligation of

the railroad to have its brakes in good order.

Liability flows if there is a violation of that abso-

lute duty and that violation is the cause, in whole

or in part, of an injury sustained by the plaintiff.’’

(R. 93 )

Of course, at the trial the petitioner did not, as

required by Rule 51 of the Federal Rules of Civil Pro-

cedure, object to any of the above instructions or sug-

gest that they were in the slightest degree erroneous—

which petitioner’s counsel was obliged to do at the trial

if he wished to thereafter claim that it was erroneous.

Of course, no contention could have been sensibly

made that. any one of such instructions was erroneous.

The fact is, of course, that the petitioner was attempt-

ing to defend a very bad case against it and had no

defense as to its having violated the Safety Appliance

Act, and that the violation thereof was at least ‘‘in whole

or in part’’ the cause of plaintiff’s injury.

On the liability issue the defendant at the trial had

no evidence to refute plaintiff’s claim of liability.

There was no evidence upon which the petitioner could

claim that it had not violated the Safety Appliance Act

with reference to adequate power-brakes, and no one could

sensibly claim that as a matter of fact such failure and

violation of the Safety Appliance Act did not at least

‘‘in part’? result in plaintiff’s injury.

There was no merit in the defense then, and of. course

there is none now.

The record shows that the defendant at the trial made

no objection to the charge except as to the Court’s failure

to charge (R. 101-102) the defendant’s 22d and 23d re-

quests, which are as follows (R. 21):

‘*22. The evidence in this case does not war-

rant a finding that there was a violation of Sec-

tions 1 and 9 of the Federal Safety Appliance Act.

‘623. The evidence does not warrant a finding

that any violation of the Federal Safety Appliance

Act caused the plaintiff’s injuries.’’

This merely raised the legal question as to the cor-

rectness of petitioner’s claim that the evidence did not

warrant a finding that there was a violation of Sections 1

and 9 of the Federal Safety Appliance Act; and does not

warrant a finding that the violation of the Act, in whole

or in part, caused the plaintiff’s injuries,

We assume that the defendant’s counsel knew, or

should have known, of the provisions of Rule 51 relating

to the Court’s giving, or failure to give, the jury an

instruction.

No one can now urge that defendant complied with this

rule, and did not then take proper objections, and surely

did not state ‘‘distinctly the matter to which he objects

and the grounds of his (petitioner’s counsel’s) objection.’’

Applicable Rule 51 prevents any assignment now of

any such alleged error, and prohibits the petitioner from

claiming in this Court that the trial judge committed such

an error,

The Court’s charge to the jury on “causation” was

adequate, complete, and indeed replete (R. 93, 94, 95,

99, 100). The “record” presents no question reviewable

here as to “legal causation” ;—there was no objection

to the charge as required by Rule 51 of the Federal Rules

of Civil Procedure; nor any petitioner’s request for in-

struction on any such question, and no exception to the

Court’s charge on causation, which charge petitioner

now seeks to review in this Court.

The District Judge below adequately, clearly and

correctly charged the law on the issue of ‘‘causation of

plaintiff’s injuries’? herein in the language of the Fed-

eral statute (R. 94-95), and clearly and correctly explained

the application of same to this particular case.

The Court (R. 93), after charging the jury upon the

necessity of the railroad company having its brakes in

good order, charged:

‘‘Liability flows if there is a violation of that

absolute duty and that violation is the cause, in

whole or im part, of an injury sustained by the

plaintiff. I shall go over that in somewhat more

detail in a minute.’’

And again the Court charged (R. 94-95) :

“The first issue having been disposed of, I

now come to what is the second issue and this

is a much more difficult issue. Now, if there was

a failure of the company to live up to its abso-

lute obligation with respect to tke braking mech-

— a eanamemanidimemmelia

anism, was that failure—to use the statutory lan-

guage—in whole or in part the cause of an ac-

cident suffered by Mr. Leary? In order to sat-

isfy this formula—‘in whole or in part’—it isn’t

necessary for the plaintiff to show that the cause

was exclusively and immediately and directly due

to some impact caused by the putting on of the

brake or the failure to put on the brake. It is

a question, ultimately, of fact as to whether the

«failure of the braking mechanism was a cause—

not necessarily immediately, but a cause of the

injury sustained. There must be a causal connec-

tion, however, It isn’t enough that a man was

on a train where the brakes were defective and he

got off the train and he was injured. You must

be satisfied in your own minds that there was some

kind of connection of a causal nature between the

failure of the brakes and the injury which oc-

curred.’’

And again (R. 95) the Court further said:

‘¢And here the second issue, as I have said to

you, is whether, if there was a defect m the brak-

ing mechanism, that defect was in whole or in part

the cause of the injury sustained. If you decide

that in the affirmative, you will then go on to the

question of damages. If you decide in the nega-

tive, that is the end of the case.’’

2 « * * & * . °

«‘Let’s assume, without indicating my own view

at all, that you have decided that there was a

defect in the brake or the hose attached thereto

and that defect was in whole or im part the cause

of the injury.” :

e & af * ” ° °.

The Court’s further charge appears on R. 95, “)6, 97

and 98, and then, as ‘he Court was about to final'y sub-

mit the case to the jury, the Court further said (R. 99):

‘J hope you will first find out how the injury

was sustained and whether or not there is a

violation of the Safety Appliance Act, and after

you have unanimity on that issue go to the next

one—if you have to go to the next one, which is

was the violation in whole or in part the cause

of the injury to the plaintiff, and seek wnanimity

on that. If you are unanimously for the plaintiff

on that, you go to the third issue. If you are

unanimously for the defendant, you fill in the form

which is called the Defendant’s Verdict, and don’t

put im any dollars or cents but just sign your

mame.”’

e * : * * * 2 * e

““If you, on the other hand, take the view as a

Jury that this is a case in which violation of the

Safety Appliance Act was in whole or im part

the cause of the injury, then you proceed to the

problem of damages.”

The District Judge’s last statement to the jury was

as follows (R. 100):

PE Oe i RETO ee ae eg en eS

‘The rules of law, which you are in honor

and good conscience bound to apply, state that

the plaintiff is entitled to prevail only if he per-

suades you that there was a violation of the

Safety Appliance Act; that violation was in whole

or in part the cause of the injury * * °.”

The above quotations from the Court’s charge show

that in seven different parts of the charge the Court

charged the jury that there must be a violation of the

afety Appliance Act, and not only that, but fu,ther that

vis vyplation must be in whole or in part the cause of

6 imjwry.

The respondent cannot understand how the Trial Judge

yuld have more completety and correctly charged the

iry on the question of the Safety Appliance Act vioia-

on, and more distinctly submitted to the jury as an

sue of fact, the determmation to be made by them, as

. whether or not it was the cause in whole or in part

’ plaintiff’s injury.

The record on appeal herein shows that this case was

ied for the defendant-petitioner by its attorney of

cord, Mr. Deering. The record suggests that a Mr.

artlett, an attorney, was present during the charge—

yssibly as an associate to Mr. Deering; as a consultant

* advisor.

Mr. Deering opened and closed the case to the jury,

d made requests to charge on other matters; and, fin-

ly, after it was agreed between counsel that defendant

uld deduct from the verdict afterwards (R. 101) the

sounts which it had specifically advanced and loaned

the plaintiff (presumably while it was endeavoring

settle with him before this suit was instituted), Mr.

irtlett, who was appearing either apparently as a

unsel or advisor to defendant’s trial counsel, said in

swer to the Court’s query:

“The Court: All right. Is there anything

else, Gentlemen?

“Mr, Bartlett: Well, your Honor, I don’t claim

to be an authority on causation, but I, as a jury-

man, would say, ‘Sure, there was a cause’, There

is no explanation what a condition is.

‘The Court: No explanation of what?

‘‘Mr. Bartlett: What is legal condition, and

what is legal causation.

‘““The Court: Do you want to define it for me?

“‘Mr, Bartlett: No, I don’t.’”’ (R. 102.)

The above occurred just before the jury was sent out

to deliberate, at the judge’s bench—of course, not in the

presence of the jury.

By what stretch of the imagination can this be called

an objection by a party? Apparently it was just Mr.

Bartlett expressing his opinion to the trial judge. One

might describe it as ‘‘just chatting’’, It certainly was

no objection to the Court’s charge, or request for in-

struction.

When the Court then questioned Mr. Bartlett, neither

Mr. Deering nor Mr. Bartlett made any request for an

instruction to the jury as to just what was the difference

between a legal ‘‘condition’’ and a legal ‘‘causation’’,

or suggest or make any request for any further instruc-

tion about causation.

It would seem to be rather childish to contend that

this was a compliance with Rule 51, which reads (in part)

as follows:

‘‘No party may assign as error the giving or

the failure to give an instruction unless he objects

thereto before the jury retires to consider its ver-

dict, stating distinctly the matter to which he ob-

jects and the grounds of his objection. Opportun-

ity shall be given to make the objection out of

the hearing of the jury.’’

The query would seem to arise: How could any

‘‘party’’, upon what occurred at the trial, now ‘‘assign as

error’”’ the giving or the failure to give an instruction

with reference to the difference between legal condition

and legal cause?

We suggest that it is not possible for any person

to make any sensible contention to establish this propo-

sition, because it clearly shows that the petitioner did

not object to any relevant part of the charge, and did not

make any request for any instruction whatever upon this

question.

Upon this record, the petitioner upon this proposition

has just ‘‘nothing’’ to present to this Court.

Mr. Bartlett’s first statement was very indefinite

and quite incomplete. He merely stated that there was

no explanation of what a condition is, and when the Court

said: ‘‘No explanation of what?’’ he merely replied:

‘What is legal condition, and what is legal causation.’’

Nothing was said whatever about how it could be’

applicable to this case. And when the Court said ‘‘Do

you want to define it for me?’’ Mr. Bartlett merely re-

plied: ‘‘No, 7 don’t.”’

This is precisely the point where, if he had any ob-

jection to the charge or ‘‘failure to give an instruction”’,

he should have then and there made a request to the

Court to instruct the jury and have stated in definite

language any request to charge, if he had one.

However, Mr. Bartlett said nothing further except

‘No, I don*t.’? In other words, he declined, or surely

failed, to make a request for an instruction.

We would like to know how any sensible and truthful

person could now say that he, or anybody representing

the petitioner, then complied with the very important

Rule 51,

In view of this record, we are amazed to find the fol-

lowing language in III of petitioner’s Argument on this

question (p. 19, Petitioner’s Brief) :

‘The trial judge erred in failing to charge the

jury as requested as to the difference between

legal condition and legal causation.”’

No ‘‘request to charge’’ was made to the trial judge.

This colloquy cannot possibly be construed to amount

to anything more than that a Mr. Bartlett—who did not

try the case, but was apparently advising and consulting

with Mr. Deering, the attorney of record—said in a dis-

cussion with the judge at the bench that possibly it might

be well if the judge had charged on the subject of con-

dition and causation, etc.

Under Rule 51, in order to claim a failure to instruct

or rule in that regard, a request for a charge or ruling

was required to be made to the trial judge with sufficient

clarity to explain to the trial court defendant’s position,

and to give the trial court the opportunity to consider

those questions and decide on rulings with reference

thereto. .

This same petitioner in another case, New York, New

Haven & Hartford Railroad Co. v. Zermani, decided by

the United States Court of Appeals for the First Circuit

on December 8, 1952, 200 F. 2d 240 and certiorari denied

by the United States Supreme Court, Oct.’Term, 1952,

No. 582, March 16, 1958, .... U. 8. .... 97 L. ed. (Advance,

p. 591), raised this same proposition, and the Court of

Appeals decided that Rule 51 must be complied with, and

that it had not complied with it in that case. In that

case the Court of Appeals said (200 F. 2d 240, at 245):

‘“‘The purpose of Rule 51 is to require the

parties to enable the trial court to ‘clarify or

correct his statement before the jury retires.’

McDonald v. Jarka Corporation, 144 F. 2d 53, 54

(2d Cir. 1944). See Williams v. Powers, 135 F. 2d

153 (6 Cir. 1948); Alcare v. Jean Jordeau, 138 F.

2d 767 (3d Cir, 1943) and Blair vy. Cullom, 168 F.

2d 622 (2d Cir. 1948). Althongh defendant’s

counsel did not remain completely silent as in

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

163 F. 2d 643, 658 (2d Cir. 1947), yet it does not

appear that his objection was clearly stated. The

language in Rosenfeld v. Curtis Pub. Co., 163 F.

2d 660, 663 (2d Cir. 1947), seems appropriate here:

¢* * * Bot it seems to us it was for counsel

to realize that the judge had not recalled or re-

peated all of what had happened and to take

-such steps as were necessary to bring this home

to the judge. Such imprecision in asserting al-

leged error is destined to produce at the most

only confusion as to what is in counsel’s mind

and what is desired of the court. We do not think

a verdict justified on the evidence and by the

trial generally should be upset when counsel have

thus ‘failed to make their criticisms of the judge

clear to him at the time. Under the circumstances

the court’s refusal to add to the original charge

was not reversible error.’ ’’

Of course, in the Zermani case, immediately above

referred to, the record was much more favorable to the

petitioner than it is here. Here the petitioner has noth-

ing—nothing whatever—to indicate any attempt to com-

ply with Rule 51, or even that petitioner’s counsel was

aware of its existence, In any event he certainly did not

make any request for an instruction. At most it could

be considered only an informal discussion, or rather

merely a comment to the Court.

Upon the merits of this question, it is all-sufficient

to say—as in the Coray case, supra, and others cited

in this brief in our main argument—that the United States

Supreme Court has held that similar facts relating to

violation of the Safety Appliance Act did not merely

establish a condition, but did establish a violation of the

Safety Appliance Act which surely was at least ‘‘in part’’

a cause of the injury.

In the Coray case the appellant also made the claim

that the violation of the Act merely established a condi-

tion and not a cause, but it was held that the injury re-

sulted ‘“‘in whole or in part’? from the violation of the

Safety Appliance Act.

The opinion in the Coray case shows that the appellant

in that case raised the very same question as the peti-

tioner here, as to whether the violation of the Safety

Appliance Act merely caused conditions to exist which

in and of themselves could not be considered a legal cause

of injury. The Supreme Court rejected that contention

and analyzed and discussed it at length, 335 U. 8S. 520,

at page 524, and held that the injury, according to the

statute, ‘‘resulted in whole or in part’’ from the violation

of the Safety Appliance Act:

“The language selected by Congress to fix

liability in cases of this kind is simple and direct.

Consideration of its meaning by the introduction

of dialectical subtleties can serve no useful inter-

pretative purpose. The statute declares that rail-

roads shall be responsible for their employees’

death ‘resulting in whole or in part’ from defec-

tive appliances such as were here maintained. 45

U. 8.'C., Sec. 51. And to make its purpose crystal

clear, Congress has also provided that ‘no such

employee * * * shall be held to have been guilty

of contributory negligence in any case’ where

a violation of the Safety Appliance Act, such as

the one here, ‘contributed to the * * * death of

such employee.’ 45 U.S. C., Sec. 53. Congress

has thus for its own reasons imposed extraordi-

nary safety obligations upon railroads and has

commanded that if a breach of these obligations

contributes in part to an employee’s death, the _

railroad must pay damages. These air-brakes were

defective; for this reason alone the train suddenly

and unexpectedly stopped; a motor track car fol-

lowing at about the same rate of speed and op-

erated by an employee looking in another direction

erashed into the train; all of these circumstances

were inseparably related to one another in time

and space, The jury could have found that de-

cedent’s death resulted from any or all of the

foregoing circumstances.”’

The record, however, plainly shows that the trial judge

here (Wyzanski, J.) very accurately, definitely and fully

charged the jury upon the question of the defendant’s

liability for. the violation of the Safety Appliance Act,

and stated that the question submitted to them was whether

the failure of the braking mechanism was a cause of the

injury sustained, and stated that there must be a causal

connection, and stated: ‘‘It isn’t enough that a man was

on a train where the brakes were defective and he got

off the train and he was injured’’ (R. 95).

The plaintiff, from beginning to end, stated that the

defective air-brake-hose which broke produced this im-

mediate unscheduled stop, with the engine in a position

causing sudden and unexpected great dangers and haz-

ards to the train crew, who were immediately then oblig-

ed to do work in an endeavor to get the train started

again, and that this initial Safety Appliance Act viola-

tion, by continuous chain reaction, most certainly caused

the injury to this plaintiff.

Any layman could understand this Court’s precise and

definite language. :

Furthermore, the respondent desires to again assert

that when the Court thus correctly charged that it was

not necessary for the plaintiff to show that the cause

was exclusively and immediately and directly due to some

impact caused by putting on the brake or the failure to

put on the brake, and that it was a question ultimately

of fact as to whether the failure of the braking mechanism

was a cause, not necessarily immediate, but a cause of

the injury sustained, that this petitioner then did not

apparently even think of making any objection to that

part of the charge and said absolutely nothing; and it

stands as the unchallenged law of the case,

And we again assert that, if this Rule 51 is not dis-

regarded altogether, the question, as now suggested by

the petitioner, as to condition and cause, etc., is not pre-

sented by this appeal.

We suggest that it is entirely clear that the petitioner

cannot complain of the Court’s charge herein, or the

alleged failure of the Court to charge as petitioner now

suggests;—first, because the Court’s charge on ‘‘causa-

tion’? was entirely correct, and on this particular ques-

tion it was much more favorable to the petitioner than

it had any right to legally expect. It would seem that

the Court could and should have charged as matter of

law that there was a failure of the petitioner to live up

to its absolute obligation to supply brakes and braking

mechanisms and appliances appurtenant thereto which

were at all times in good order. Nevertheless, the Court

-_pseegeeat

that there was a failure of the petitioner to have its

train equipped with such adequate brakes. The Court

then submitted to the jury as a question of fact whether,

if there was a failure of the company to live up to its

obligation with respect to the braking mechanism,—‘‘ ‘* * *

was that failure—to use the statutory language—in whole or

in part the cause of am accident suffered by Mr, Leary?

In order to satisfy this formula— in whole or in part’—

it isn’t necessary for the plaintiff to show that the cause

was exclusively and immediately and directly due to

some impact caused by the putting on of the brake or

the failure to put on the brake. It is a question, ulti-

mately, of fact as to whether the failure of the braking

mechanism was a cause—not necessarily immediately,

but a cause of the injury sustained. There must be a

causal connection, however. It isn’t enough that a man

was on a train where the brakes were defective and he

got off the train and he was injured. You must be sat-

isfied in your own minds that there was some kind of

connection of a causal nature between the failure of the

brakes and the injury which occurred. I am not going

to make any observations as to what I think about this

matter for it is a matter of your own information. I

may tell you I am scrupulously avoiding coming in my

own mind to any conclusion on this question, It is a

Jury question, and it is a question on which the plain-

tiff has—as he has on the first and on the last issue—

the burden of proof. That is, the plaintiff must per-

suade you that his side of the story is right—not that

it is right beyond a reasonable doubt, but it probably

right.’’ (R. 94-95.)

To all of the above, as shown by the Record, the

petitioner made no objection and took no exception, and

made no request for instruction before the jury retired

to consider its verdict, and did not state at all, distinctly

or otherwise, as required by the aforesaid Rule 51—

‘¢ * * * stating distinctly the matter to which he objects

and the grounds of his objection. * * *.’’

Therefore, we contend that upon the record here the

petitioner cannot assign any alleged error in giving or

failing to give any further instruction on ‘“causation”’,

as is now suggested by the petitioner herein.

We respectfully suggest that this claim of alleged

error is not only obviously unsound, but is a matter

which cannot legally be presented to this Court on the

record in the District Court (R. 102).

The Record on Appeal herein (R, 111-113) contains 4

stenographic record of a hearing on petitioner’s motions

for judgment notwithstanding verdict and for a new trial,

and the opinion of the District Judge (Wyzanski, D. J.)

on said motions. This opinion clearly and convincingly

shows—indeed demonstrates—that the violation of the

Safety Appliance Act herein was the cause of plaintiff’s

injury—and, to use the language of Mr. Justice Black

in the Coray case, supra, the bursting of the air-hose,

the stoppage of the train, the defendant’s violation of

the Safety Appliance Act, and all of the circumstances

continuously leading up to plaintiff’s fall and injuries,

were “all * * * circumstances * * * inseparably related

to one another in time and space’’, and therefore was the

cause of plaintiff’s injuries (Coray v. So. Pac. Co., 3

U. S. 520, at 524).

Neither the petitioner’s answer herein, nor this appeal

record, PRESENTS its claim here relating to alleged pay-

ments from the Government to the plaintiff under the

Railroad Retirement Act; and in any event this claim

is herein utterly unsound and without merit.

As stated in our Summary above, the Court of Ap-

peals in this case (204 F. 2d 461, at 468) discusses and

correctly disposes of this wnpleaded and belated conten-

tion of the petitioner.

In the defendant’s answer (wherein it demanded judg-

ment dismissing the plaintiff’s complaint [R. 14]) there

is no plea of separate defense except that the defendant

made payments to the plaintiff totalling $3225 (which

the defendant had advanced to plaintiff before he insti-.

tuted suit and while it was endeavoring to settle with

him), and for which the plaintiff agreed that they were

entitled to make a reduction (R. 101), and it was agreed

at the trial that the defendant could deduct that amount

‘‘from the verdict afterwards’’, and defendant’s counsel

said it was not necessary to let the jury consider it (R.

101-102).

The defendant’s answer made no reference whatever

to any payments from the Railroad Retirement Fund,

and did not suggest any such set-off or partial or affirma-

tive defense. The only reference to the matter will be

found in the Record at pages 66-68.

The ‘‘answer’’ presented no claim of separate defense

that the defendant contributed to some Railroad Retire-

ment Fund, or that the plaintiff has received, or may

receive, or is entitled to receive, some sum as payment

of pension from the Railroad Retirement Fund; and it is

an idle and absurd gesture for the petitioner to herein

make the contention in this Court that the petitioner

is entitled to a reversal of this judgment and a new trial

because of anything set forth in its brief relating to the

Railroad Retirement Fund.

Under the Federal Rules of Civil Procedure, General

Rules of Pleading, Rule 8 (c), the defendant was obliged

to set forth ‘‘* * * payment * * * and any other matter

constituting an avoidance or affirmative defense’’.

Under the Federal Rules of Civil Procedure, Rule 13,

a set-off or recoupment is treated as a counterclaim and

must be pleaded (Chicago, Great W. R. R. v. Peeler, 140

F. (2d) 865).

Under these Rules of Civil Procedure, 8 (c) and 13 (a),

(b) and (c), the defendant was obliged to plead any al-

leged payments or set-off in reduction of damages, Hav-

ing failed to so plead, the defendant could not put in

any evidence to establish any alleged set-off, and cer-

tainly cannot now raise the question upon this application.

If the defendant had properly pleaded payments by

the defendant to any fund for the benefit of the plaintiff

as to which under the law it would be entitled to re-

coupment from the plaintiff, an entirely different propo-

sition would be presented, but no such situation exists

in this case either upon the facts or the law.

As a matter of fact and law, the defendant made no

such payments to the plaintiff (R. 66-68). At the most

it merely made some unspecified payment to the Govern-

ment which the Government received and collected as an

internal-revenue tax (Title 26, U. S. C., Sec. 1530)—not

for the benefit of the plaintiff, but solely from which a

fund could be established from moneys supplied by (1)

the plaintiff, (2) the defendant and its shippers and

a and (3) the general public and the Govern-

ment,

Under the Federal Employers’ Liability Act, Title 45,

Sec. 55, payments which a railroad employee might re-

ceive from the United States Government under the Rail-

road Retirement Act are not admissible or provable as

a defense, in mitigation of damage or otherwise, in an

action under the Federal Employers’ Liability Act for

damages for personal injuries.

Section 55 reads as follows:

‘Sec, 55. Contract, rule, regulation, or device

exempting from liability; set-off.

Any contract, rule, regulation. or device what-

soever, the purpose or intent of which shall be

to enable avy common carrier to exempt itself

fvom any liability created by this chapter, shall

to that extent be void: Provided, That in any

action brought against any such common carrier

under or by virtue of any of the provisions of

this chapter, such common carrier may set off

therein any sum it has contributed or paid to any

insurance, relief benefit, or indemnity that may

have been paid to the injured employee or the

person entitled thereto on account of the injury

or death for which said action was brought.’’

The Railroad Retirement Act does not constitute “‘any

insurance, relief benefit, or indemnity.”’

The Railroad Retirement Act is one of the legal pro-

| ORES ES eRe ana SRA RBR SOs ee

visions of the United States Government which consti-

tutes a part of the general plan of social legislation that

has been inaugurated and adopted by the United States

Government for the general welfare of the Union.

Payments to railroad employees under the Railroad

Retirement Act are made, instead of payments under the

Social Security Act, which applies to persons who are

not employed by common carriers or certain designated

affiliates.

Railroad’ employees are not entitled to Social Security

because they cannot be within the scope of both plans of

legislation as they are mutually exclusive.

Persons not employed by railroads are within the

coverage and protection of either the Social Security Act

or the Fair Labor Standards Act of 1938, 29 U. S. C.,

Sec. 201, et seg. No one would ever claim that Social

Security or other benefits should be deducted in mitiga-

tion of damages in personal injury suits. A railroad

employee is solely under the coverage and protection of

the Railroad Retirement Act of 1937, 45 U. S. C., Sec. 228a,

et seq., the Railway Labor Act, 45 U. S. C., Sec, 151, et

seq., the Carriers Taxing Act of 1937, 26 U. S. C., Int.

Rev. Code, Sec. 1500, et seqg., and the Railroad Unem-

ployment Insurance Act, 45 U.S. C., Sec. 351, et seq.

(See Northern Pacific Ry Co. v. Reynolds, 68 F. Supp.

492).

The taxes which provide the income for the railroad

retirement system are collected under the Railroad Re-

tirement Tax Act, Int. Rev. Code, Title 26, U. S. C., Secs.

1500-1538.

Under the provisions of that Act both the employer

and the employee now contribute equally at the rate of

644% of compensation up to $300 per month (see Title 26,

Secs. 1500, 1520). Under Section 1530 the taxes paid

ee ee ee ee ee a a a a ok a

= oOo

are paid to the Treasury of the United States as internal-

revenue collections,

Section 1530 (a) reads as follows:

**See. 1530. Collection and payment of taxes—

(a) Administration, The taxes imposed by this

subchapter shall be collected by the Bureau of

Internal Revenue and shall be paid into the Treas-

ury of the United States as internal-revenue col-

lections.’’

In addition to the taxes collected, Congress has appro-

priated an amount to be transferred to the retirement

account in annual installments, equal to (1) the combined

railroad and employees taxes that would have accrued

during periods of creditable military service from Sep-

tember, 1939, through June, 1948, if the employees had

remained in railroad service and earned $160 a month,

and (2) the actuarial value of additional benefits based

on creditable military service performed before 1937 (45

U. 8. C., Sees, 228¢ (m) ; 2280 (p).

The amount transferred from the Treasury during

1951-52 came to $770,662,000. This included $33,000,000

which represented the 1951-52 installment of the military

service appropriation. In addition, $78,889,000 was earned

on investments. In all, $849,551,000 was made available

to the retirement account during the year. After de-

ducting the $394,153,000 paid to railroad employees and

their families in benefits under the retirement and sur-

vivor programs, and the $6,331,000 spent for administer-

ing these programs, the excess of income over outgo for

the years was $449,067,000. This amount raised the total

reserve on June 30, 1952, to $2,868,969,000, Any part of

the reserve not immediately needed for benefit payments

or administrative expenses is invested in 3% Treasury

notes, and: the interest earned becomes a further source

ae eeeeeerreemeenesenenersseeternesncennetenenennenmnensnenninanemsnsinnesaaee

of income to the retirement account. (See Monthly Re-

view, Railroad Retirement Board, August, 1952, Vol. 13,

No. 8, pp. 147-148; Title 45, U. S. C., Sec. 2280).

The United States Government also makes fitting ap-

propriations for the administration expenses of the Rail-

road Retirement Board and the administration of the Act

(Title 45, U. S. C., Sec. 228p).

From the provisions of the Act it is clear that the

moneys paid under the Railroad Retirement Acts are

paid by the United States Government out of moneys

collected from the employee, the employer, and the gen-

eral public, and are not payments by the railroad, and

any contributions paid by the railroad are out of moneys -

collected by it from shippers and passengers in the course

of its operations, and estimated by the various Public

Service Commissions and the Interstate Commerce Com-

mission in the fixing of permissible rates by railroads,

and cannot be specifically ear-marked as any set-off or

payment or in mitigation or diminution of damages award.

able under the Federal Employers’ Liability Act.

It is generally established that a wrongdoer causing

a plaintiff damages is not entitled to have the damages

for which the wrongdoer is liable reduced by proving

that the plaintiff has received or will receive compen-

sation from a collateral source (Brabham v. Baltimore ¢

O. R. Co., 220 F. 35; 8S. H. Kress Co. v. Bullock Shoe Co.,

56 F. (2d) 713; Terry v. Jewett, 78 N. Y. 338; Briggs v.

N. Y. C. @ H. H.R. R. Co., 72 N. Y, 26; McCarthy vy,

Palmer, 29 F. Supp. 585),

The opinions rendered in Hetrick ~. Reading Co.

39 F. Supp. 22, and McCarthy v. Palmer, 113 F. (2d) 721

(cert. den. 311 U. 8. 680), contain a full and complete

analysis of the reasons why Railroad Retirement Act

payments cannot be proved in mitigation of damages in

Federal Employers’ Liability Act cases, in addition to

those set forth in this brief. Reference is made to those

opinions without reiteration here.

The petitioner, in its efforts to raise the question

of the Railroad Retirement Act payments, cites the

McCarthy and Hetrick cases, and makes the contention

that ‘‘We do not believe that the precise question has been

passed upon by this Court’’ (page 22, petitioner’s brief),

but completely fails to make any argument or legal

presentation in an effort to persuade this Court that the

trial court’s ruling was wrong or that the rulings in

the McCarthy and Hetrick cases were wrong. No cases

are cited in opposition. No argument is made in opposi-

tion, All that the point contains is the bald statement

that the proof should have been admitted.

If the petitioner cannot cite any authorities or pre-

sent any plausible argument to support its position, the

respondent submits that the question is not worthy of

consideration by this Court on this application.

CONCLUSION

The application for a writ of certiorari should be

denied.

Respectfully submitted,

O’NEILL, HIGGINS & LATTO,

Attorneys for Respondent,

No. 369 Lexington Avenue,

Borough of Manhattan,

City of New York.

Tromas J. O'NEILL,

Joun V. Hicers,

Of Counsel.

—————

APPENDIX

FeperaL Statutes AND F'eperaL Ruue#s or Crvit Procepursz

CITED IN THIS BRIEF.

~~ ws

i ad

United States Code, Title 26.

“SUBCHAPTER B.—EMPLOYMENT BY CARRIERS

‘¢Parr I.—Tax on EMPLOYEES

**§ 1500. Bate of taz.

‘‘In addition to other taxes, there shall be levied, col.

lected, and paid upon the income of every employee a tax

equal to the following percentage of so much of the com-

pensation, paid to such employee after December 31, 1946,

for services rendered by him after such date, as is not in

excess of $300 for any calendar month:

‘*1, With respect to compensation paid during the

calendar years 1947 and 1948, the rate shall be 534 per

centum ;

‘*2. With respect to compensation paid during the

calendar years 1949, 1950, and 1951, the rate shall be 6

per centum;

‘*3. With respect to compensation paid after Decem-

ber 31, 1951, the rate shall be 614 per centum. (53 Stat.

179; July 31, 1946, ch. 709, § 3 (a), 60 Stat. 723.)

‘*Parr []7.—PDax on Emproyers

**§ 1520. Rate of taa.

‘‘TIn addition to other taxes, every employer shall pay an

excise tax, with respect to having individuals in his em-

ploy, equal to the following percentages of so much of the

compensation, paid by such employer after December 31,

1946, for services rendered to him after December 31, 1936,

as is, with respect to any employee for any calendar month,

not in excess of $300: Provided, however, That if an em-

ployee is paid compensation after December 31, 1946, by

more than one employer for services rendered during any

calendar month after 1936, the tax imposed by this section

shall apply to not more than $300 of the aggregate compen-

sation paid to such employee by all such employers after

December 31, 1946, for services rendered during such

month, and each employer other than a subordinate unit

of a national railway-labor-organization employer shall be

liable for that proportion of the tax with respect to such

compensation paid by all such employers which the com-

pensation paid by him after December 31, 1946, to the em-

ployee for services rendered during such month bears to

the total compensation paid by all such employers after

December 21, 1946, to such employee for services rendered

during such month; and in the event that the compensation

so paid by such employers to the employee for services ren-

dered during such month is less than $300, each subordi-

nate unit of a national railway-labor-organization employ-

er shall be liable for such proportion of any additional tax

as the compensation paid by such employer after Decem-

ber 31, 1946, to such employee for services rendered during

such month bears to the total compensation paid by all

such employers after December 31, 1946, to such employee

for services rendered during such month:

‘1, With respect to compensation paid during the

calendar years 1947 and 1948, the rate shall be 534 per

centum;

‘62. With respect to compensation paid during the

calendar years 1949, 1950, and 1951, the rate shall be 6

per centum;

‘*3. With respect to compensation paid after Decem-

ber 31, 1951, the rate shall be 614 per centum. (53 Stat.

180; July 31, 1946, ch. 709, § 3 (d), 60 Stat. 724.)”’

‘‘Parr [V.—GeneraL Provisions

‘§ 1530. Collection and payment of tawes—(a) Adminis-

tration.

““The taxes imposed by this subchapter shall be col-

lected by the Bureau of Internal Revenue and shall be

paid into the Treasury of the United States as internal-

revenue collections.’’

[Subdivisions (b), (c) and (d) are not necessary for

this presentation, and are not copied. }

ahs

United States Code, Title 28, Rules of Civil Procedure.

‘Rute 8.—GeneraL RULES OF PLEADING

‘“‘(e) Affirmative defenses.

‘In pleading to a preceding pleading, a party shall set

forth affirmatively accord and satisfaction, arbitration and

award, assumption of risk, contributory negligence, dis-

charge in bankruptcy, duress, estoppel, failure of consid-

eration, fraud, illegality, injury by fellow servant, laches,

license, payment, release, res judicata, statute of frauds,

statute of limitations, waiver, and any other matter con-

stituting an avoidance or affirmative defense. When 2

party has mistakenly designated a defense as a counter-

claim or a counterclaim as a defense, the court on terms,

if justice so requires, shall treat the pleading as if there

had been a proper designation.”’

[Subdivisions (a), (b), (d), (e) and (f) are not neces-

sary for this presentation, and are not copied.]

‘“Rute 13.—CounrerctaIm AND Cross-CLaIM

““(a) Compulsory counterclaims,

‘‘A pleading shall state as a counterclaim any claim

which at the time of serving the pleading the pleader has

against any opposing party, if it arises out of the trans-

action or occurrence that is the subject matter of the oppos-

ing party’s claim and does not require for its adjudica-

tion the presence of third parties of whom the court cannot

acquire jurisdiction, except that such a claim need not be

so stated if at the time the action was commenced the claim

was the subject of another pending action.

‘“(b) Permissive counterclaims,

‘‘A pleading may state as a counterclaim any claim

against an opposing party not arising out of the transac-

tion or occurrence that is the subject matter of the oppos-

ing party’s claim.

‘*(e) Counterclaim exceeding opposing claim.

‘‘A counterclaim may or may not diminish or defeat

the recovery sought by the opposing party. It may claim

relief exceeding in amount or different in kind from that

sought in the pleading of the opposing party.”’

[Subdivisions (d) to (i), inclusive, are not necessary

for this presentation, and are not copied.]

Ss e « * ° : 9 *

‘Rute 51.—Insrrvuctions To Jury: OssEction

‘“‘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 in-

form 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 giving or the failure to give an

instruction unless he objects thereto before the jury re-

tires to consider its verdict, stating distinctly the matter

to which he objects and the grounds of his objection. Op-

portunity shall be given to make the objection out of the

hearing of the jury.’’

7Vv?

Unitec! States Code, Title 45, Chapter 9.

‘‘RAILROAD RETIREMENT ACT OF 1937

- o = * * * *

““§ 228p. Appropriation.

‘There is hereby authorized to be appropriated from

time to time such sums as may be necessary to provide for

the expenses of the Board in administering the provisions

of sections 228a to 228c-1, 228e-228h, 2281-228p, 228r, and

228s and former sections 215-228 of this title. (Aug. 29,

1935, ch. $12, § 16, as added June 24, 1937, ch. 382, part I,

§ 1, 50 Stat. 317.)”’

ovr

United States Code, Title 45, Chapter 1.

“SAPETY APPLIANCES AND EQUIPMENT ON

RAILROAD ENGINES AND CARS, AND PROTEC-

TION OF EMPLOYEES AND TRAVELERS

““§ 1, Driving-wheel brakes and appliances for operating

train-brake system.

‘‘Tt shall be unlawful for any common carrier engaged

jn interstate 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 oper-

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

traffic that has not a sufficient number of cars in it so

eguipped with power or train brakes that the engineer on

the locomotive drawing such train can control its speed

without requiring brakemen to use the common hand brake

for that purpose, (Mar. 2, 1893, ch. 196, § 1, 27 Stat. 531.)

* . * . . * + *

“$9, Number of cars to be operated with power or train

brakes; mcrease of number.

‘*Whenever, as provided in sections 1-7 of this title, any

train is operated with power or train brakes not less than

50 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 cars in such

train which are associated together with said 50 per centum

shall have their brekes so used and operated; and, to more

fully carry into effect the objects of said sections, the In-

terstate Commerce Commission may, from time to time,

after full hearing, increase the minimum percentage of

cars in any train reqiired to be operated with power or

train brakes which must have their brakes used and oper-

ated as aforesaid; and tailure to comply with any such re-

quirement of the said Inierstate Commerce Commission

shall be subject to the like penalty as failure to comply

with any requirement of this section. (Mar. 2, 1903, ch.

976, § 2, 32 Stat. 943.)”’

United States Code, Title 45, Chapter 2.

“LIABILITY FOR INJURIES TO EMPLOYEES

**§ 51. Liability of common carriers by railroad, in mter-

state or foreign commerce, for mjuries to employees

from negligence; definition of employees.

‘‘Every common carrier by railroad while engaging in

commerce between any of the several States or Territories,

or between any of the States and Territories, or between

the District of Columbia and any of the States or Terri-

tories, 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 ease of the death of such employee, to his or her per-,

sonal representative, 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 neg-

ligence of any of the officers, agents, or employees of such

carrier, or by reason of any defect or insufficiency, due to

its negligence, in its cars, engines, appliances, machinery,

track, roadbed, works, boats, wharves, or other equip-

ment,

‘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 commerce as above set forth

shall, for the purposes of this chapter, be considered as

being employed by such carrier in such commerce and shall

be considered as entitled to the benefits of this chapter.

(Apr. 22, 1908, ch. 149, § 1, 35 Stat. 65; Aug. 11, 1939, ch.

685, § 1, 53 Stat. 1404).

“§ 55. Contract, rule, regulation, or device exempting

from liability; set-off.

‘‘Any contract, rule, regulation, or device whatsoever,

the purpose or intent of which shall be to enable any com-

mon carrier to exempt itself from any liability created by

this chapter, shall to that extent be void: Provided, That in

any action brought against any such common carrier under

or by virtue of any of the provisions of this chapter, such

-¢ommon carrier may set off therein any sum it has con-

tributed or paid to any insurance, relief benefit, or indem-

nity that may have been paid to the injured employee or

the person entitled thereto on account of the injury or

death for which said action was brought. (Apr. 22, 1908,

ch. 149, § 5, 35 Stat. 66.)’’

(12738)

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.