# Petition for Writ of Certiorari — New York, New Haven & Hartford Railroad v. Leary > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1810%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1953 - **Citation:** 346 U.S. 856 ## 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 10 14 19 21 22 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, v. 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. 2 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 3 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 4 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 5 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 a 6 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 7 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.’’ 8 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 9 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. 10 BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI. The facts are stated in the petition filed herewith. Argument. I. 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 11 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- 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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.) 21 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. 22 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. ne —— 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. a. 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 i 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 ~~ a 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 iv 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 V 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. eo 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 2 ‘‘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). 3 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 4 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 as 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: 5 ‘*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- 6 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 @ 7 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. 8 ‘‘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 9 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? ‘