Petition for A Writ of Certiorari — Chicago, Milwaukee, St. Paul & Pacific Railroad v. Woodrow

SUBJECT INDEX

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REROMONT OF (GO CORB. i io ceils Shae hw eee deisba bus eweea ws 3

Specification of Error to Be Urged..........c.cccevecseccces 16

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AUTHORITIES CITED

Cases:

Bailey v. Central Vermont Ry., Inc., 319 U. 8S. 350, 63 S. Ct. 1062,

OT Ta. Ws BORE CEOAG) ois ising ANS ce basen de eee edi een 16,17

Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U. S. 430,.70 S.

Ob BEG. Od Ta. WS: SOS CIAO) 5 is x oo bic od ec eee ee eee 29

Dice v. Akron, Canton & Youngstown R. Co., 342 U. S. 359, 72 8.

Ck SiS; BS Ls. BG: BOS CROSS) 5 iis k ss Fe See vba case es 18, 29

Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916

CARES oak Cee ea ee RGR Reh Mae SOREN Eee Re belelee welawh sr we 18, 28

M. St. P. & S. 8S. M. Ry. Co. v. Moquin, 283 U. 8. 520, 61 S, Ct, 601,

yi BAe RS eS |) Reema eerer a ee wa or deme a Gr tat rote 14

Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 64 S. Ct. 409,

OG: Ti. BG REO CLOGS ie as Se ee eas ofa Ce apees kere 18, 29

Tiller v, Atlantic Coast Line R. Co., 318 U. S. 54, 63 8S. Ct. 444,

87 L. Bd. 610 (1943)..........6- (aly 00 0b bay A hina Seen eee 17

Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413, 93 L. Bd. 497

CEDEOS ois a ORE Seb ONS ne Seek hees cheese 19, 22, 26, 27, 30

Statates:

Title 28, U. S. C., Section 1367 (8) ...cccceccececccvcssves 2

Title 45. U. S. C., Sections 51-60 ........ cece eee eeees ne teas 2

Title 46, U. 8. C., Section 51 ......- cee rerccvssnvecesecs 16

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1953

Ke

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

RAILROAD COMPANY, a Corporation,

Petitioner,

vs.

WILLIAM J. WOODROW,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MINNESOTA

To the Honorable Supreme Court of the United States:

The petitioner, Chicago, Milwaukee, St. Paul and Pacific

Railroad Company, respectfully prays that a writ of certio-

rari issue to review the judgment of the Supreme Couri of

the State of Minnesota entered in the above entitled cause on

the 4th day of December, 1953.

The opinions of the Minnesota Supreme Court (R. 646-661

and R. 699) are respectively reported at 60 N. W. (2d) 49 and

61 N. W. (2d) 240, but are not as yet reported in the Minne-

sota reports. (For purposes of clarity, the petitioner and

respondent herein will be referred to as defendant and plain-

tiff, respectively. )

2

JURISDICTION

This action was brought under the Federal Employers’

Liability Act, Title 45 U. S. C., Sections 51-60, to recover

damages for alleged personal injuries claimed to have been

sustained by plaintiff while employed by defendant as a loco-

motive engineer.

The jurisdiction of this Court is invoked under Title 28

U. 8. C., Section 1257(3) and upon the grounds that the ques-

tion presented is wholly of a Federal nature and of peculiar

gravity. It relates to the right of a defendant in a Federal

Employers’ Liability Act action to trial by jury. This right

was denied by the trial court when over defendant's objec-

tion (R. 482-483) it withdrew from the jury’s consideration

testimony of three witnesses, one a city police officer and one

a deputy sheriff, which established that the disabilities plain-

tiff complained of at the time of trial were caused in whole,

or at least in part, by injuries received in a serious automo-

bile accident two years after his alleged railroad injury and

three and one-half months before the trial. The trial court’s

action was assigned as error in defendant’s motion for a new

trial (R. 620) which was denied (R. 637, 638).

The question was specifically raised on appeal to the

Minnesota Supreme Court from the intermediate order below

denying defendant’s right to jury trial and was decided

adversely to defendant (R. 658). The issue was again raised

in defendant’s petition for rehearing (R. 692) and defend-

ant’s right was denied (R. 693).

When judgment was entered in the trial court, defendant

then appealed the judgment to the Minnesota Supreme Court

(R. 695) where the question was again raised (R. 696). The

judgment of the lower court was affirmed by decision of the

Minnesota Supreme Court of December 4, 1953 (R. 699),

thereby constituting final judgment of the highest court of

the State ot Minnesota.

3

QUESTION PRESENTED

In an action under the Federal Employers’ Liability Act

where the defendant has contested the happening of plain-

tiff’s alleged accident, as well as the nature and extent of

plaintiff's alleged injuries, is the defendant entitled to have

the jury consider and pass upon a vital, disputed issue of

fact as to whether the plaintiff was involved in a serious

automobile accident, resulting in the personal injury to him

for which he seeks to recover herein, and which occurred more

than two years after the time of the claimed railroad acci-

dent and several months before the time of trial?

STATUTES INVOLVED

Title 28 U. 8. C., Section 1257(3).

Title 45 U. 8. C., Sections 51-60.

STATEMENT OF THE CASE

This action was commenced on October 30, 1951, to recover

damages for personal injuries claimed to have been sustained

by plaintiff on November 12, 1949, while employed dy defend-

ant as a locomotive engineer (R. 3, 4). In the complaint

two years after the accident the plaintiff for the first time

claimed the shaker bar came off the grate lug and caused

the accident (R. 4). This was entirely different from his

earlier statements.

Defendant denied both liability and the extent of the

alleged injuries (R. 7, 8). The case was tried commencing

March 3, 1952, in the District Court of Freeborn County,

Minnesota, before the Court and a jury (R. 11).

Plaintiff testified that he was 52 years old, a resident of

Ottumwa, Iowa, and that on November 12, 1949, he was on

duty as engineer of one of defendant's freight ‘trains from

Laredo, Missouri, to Ottumwa, Iowa (R. 12, 15, 21). The

4

engine did not steam well (R. 22), because of the inferior

grade of coal that it was necessary to burn due to the national

coal strike in progress (R. 449, 454). Asa result it was neces-

sary for the fireman, Robert Boyd Jr., to periodically “clean

the fire” by opening and closing the engine grates, and remov-

ing the clinkers (R. 23, 24). At Powersville, Missouri, plain-

tiff volunteered to clean the fire for Boyd (R. 26). The engine

was stopped and Boyd went down to the ground, leaving

- plaintiff alone in the cab of the engine (R. 27). Plaintiff

then cleaned three of the four sets of grates in the engine

(R. 28). This was done in the customary manner by placing

the grate shaker bar upon the grate lug and then shaking

or moving the grates open and closed (R. 17, 27, 28, 29).

Plaintiff does not claim to have experienced any difficulty

in cleaning the first three sets of grates. He then proceeded

to clean the fourth set of grates (R. 28). He placed the

shaker bar on the grate lug in the regular manner (R. 28,

29) and testified that the shaker bar was down on the lug as

far as it would go (R. 29). There was some slack in the

shaker bar (R. 29).

Plaintiff testified that he then opened the grates by moving

the shaker bar backward toward the tender (R. 28). With

the shaker bar in this position, plaintiff claims to have

cleaned the clinkers out and shoved the live coal ahead onto

the front section of the grates with a “slide hook” (R. 29).

After having done this, it was his claimed intention to close

the grates by moving the shaker bar forward toward the

boiler head (R. 29, 30). Plaintiff claims that the grate rods

were sprung, bent or otherwise (R. 30), although he could

not see them (R. 99, 100), and that it was therefore neces-

sary for him to grasp the top of the shaker bar and pull it

forward with all his strength in the direction of the boiler

head, whereupon the shaker bar suddenly came off the grate

lug throwing him against the boiler head and causing the

5

injury to his back for which the action was brought (R. 30,

31).

It is defendant’s position that plaintiff's self-serving testi-

mony which alone supports his claim is wholly incredible

and inconsistent with the physical facts established by ‘all

the other evidence which demonstrates that it was not only

improbable but physically impossible for plaintiff to have

been injured in the manner claimed.

Plaintiff was contradicted by the testimony of his own son,

William E. Woodrow, Jr., plaintiff’s witness, as well as the

testimony of witnesses Brossard and Corr, all of whom stated

that the physical construction of the engine was such that the

grates opened by moving the shaker bar forward toward the

boiler head and closed by moving the shaker bar backward

toward the tender (Woodrow, Jr., R. 547, 548; Brossard, R.

232, 240; Corr, R. 441, 446). The grates could be forced open

only from one to three inches, depending on the condition of

the engine, with the shaker bar in the backward position (R.

545), but with such a narrow opening it would have been im-

possible for plaintiff to have knocked out the clinkers and

shoved the live coals ahead onto the front section of the grates

as he claims that he did (R. 29). The shaker bar, therefore,

must have been in the forward position in order for the grates

to be open wide enough for plaintiff to knock out the clinkers

and rebuild the fire, and it was thus physically impossible for

the accident to have taken place in the manner claimed by

plaintiff. :

The physical design of.the housing at the base of the shaker

bar is such that when it is engaged or placed over the tapered

protruding shaker stub or grate lug it is necessarily wedged

on in such a manner that it cannot be removed except by pull-

ing straight up. Even then it must frequently be pounded or

hammered before it can be pulled directly up from the stub

since the inside surface of the housing presses against and

6

opposes the exterior tapered surface of the shaker stub (R.

19, 20, 155, 156, 234, 237).

Further doubt is cast on the happening of the alleged acci-

dent by the fact that plaintiff made no mention of the alleged

accident or injury nor of the allegedly ‘defective condition of

the grate shaking apparatus to Robert A. Thomas, the con-

ductor in charge of the train movement (R. 219-221).

Although required by company rules to report every engine

defect at the end of each run, plaintiff made no reference

whatsoever to the grate shaking apparatus being defective on

his engine condition report made at the end of the run on

November 12, 1949 (R. 97-99, Ex. C).

Fireman Boyd used this grate shaking apparatus on all

four grate lugs many times on November 12, 1949, both before

and after plaintiff claims to have been injured, and had no

trouble whatsoever with it (R. 156, 164).

Fireman Storey had used the grate shaking apparatus on

this engine on numerous occasions before and after November

12, 1949, and had never observed a defect in the apparatus

nor had he found it to function improperly (R. 191, 192).

In January, 1950, plaintiff explained to Dr. Householder

how the alleged accident occurred and in so doing made no

reference to the shaker bar having come loose, nor did he

state that he had been thrown against the boiler head of the

engine (R. 265). Instead, it was his story at that time, that

while bent forward shaking the grates he felt a sudden and

unexplainable pain in his back (R. 264, 265).

In June, 1950, plaintiff described the occurrence to defend-

ant’s claim agent McLaughlin and said, “There was nothing

defective about the shaker bar, grates or other parts and the

shaker bar didn’t come loose; engine was standing still” (R.

485, 486, 492, 493).

It was not until this action was started, almost two years

after the alleged railroad accident, that plaintiff started

7

claiming that the grate shaking was defective and that he

was thrown against the boiler head.

Immediately following the alleged railroad accident, plain-

tiff continued on duty to the end of the train’s run at

Ottumwa (R. 34). The next day he visited Dr. Nelson at

Ottumwa who taped his back, administered some medication

and advised the use of hot packs (R. 35, 36). Plaintiff con-

tinued working without interruption until December 23,

1949, at which time he laid off (R. 37). On January 18,

1950, he was admitted to the Wesley Memorial Hospital in

Chicago on the basis of his subjective complaints of pain

in the sacro-iliac region which extended down over both

buttocks into the region of the scrotum and rectum (R. 263).

He made no complaint whatsoever of injury or pain along

the back of the spine (R. 263), nor in the area of the fourth

or fifth vertebra (R. 282). He had a temperature of 101

degrees (R. 266). He complained of feeling sick general-

ly (R. 263). The examination disclosed that plaintiff had

a rectal abscess which was swollen and very sensitive to even

slight palpation (R. 266). (The abscess is not claimed to

have been caused in the alleged railroad accident.) It was

Dr. Householder’s opinion that plaintiff's subjective com-

plaints of pain were caused solely by the abscess (R. 266) and

it was operated on immediately (R. 267). Further examina-

tion at that time revealed absolutely no objective evidence of

back injury (R. 270, 271, 272, 275), although certain degener-

ative changes of the back were observed from X-rays and

diagnosed as hypertrophic arthritis (R. 271, 273).

Plaintiff returned from Chicago and resumed working on

February 28, 1950. On March 9, 1950, he wrote and signed a

letter in his own handwriting to defendant’s district claim

agent (R. 105, 106, Ex. D), the body of which was as follows:

“T have recovered from my recent injury sufficiently to

return to work as a locomotive engineer on the K. C. divi-

8

sion at Ottumwa, Iowa on the 28th day of February.

I would appreciate settlement at your earliest conve-

nience.”

After resuming work, plaintiff continued working without

interruption for six months until August 28, 1950, when he

again laid off (R. 40). During this period he worked more

steadily and received more wages than he had at any time in

the four years preceding his claimed accident of November

12, 1949. Exhibit A (R. 87). In 1946, plaintiff’s total wages

were $3,867.56 with monthly average of $322.92. In 1947

his total wages were $3,884.40, and a monthly average of

$241.97. In 1949 his total wages through October were

$4,392.75 and a monthly average of $439.28. After the acci-

dent for six months, March to August, he earned $2,845.89

and a monthly average of $474.42. In 1948 for the first four

months he earned $297.67 with a monthly average of $74.42.

It seems clear his arthritis or other illness for four years

before the claimed injury of November 12, 1947, probably

prevented him from working regularly.

He said he started wearing a body brace in April, 1950

(R. 41). He was admitted to the Ottumwa Hospital about

September 1, 1950 (R.43) and remained a week. On the

basis of his subjective complaints (R. 277, 278) he was

again admitted to the Wesley Memorial Hospital in Chicago

on September 26, 1950 (R. 275), and remained until Decem-

ber, 1950 (R. 45). During the latter period he was attended

and treated by Dr. Householder (R. 275) and later he was

examined by Dr. Conley, head of the Orthopedic Surgery De-

partment of the 4000-bed Cook County Hospital, the Oak

Park Hospital and Chicago Memorial Hospital (R. 329).

Both of these doctors testified that plaintiff had a degenera-

tive condition of the back which could only be diagnosed as

hypertrophic arthritis (Dr. Conley, R. 387, 343, 344; Dr.

Householder, R. 269, 271, 273); neither doctor could find

9

any objective symptom of back injury (Dr. Conley, R. 340,

341, 342, 346; Dr. Householder, R. 270, 271, 272, 273, 275,

284, 285). The same opinion was expressed by Dr. Yoerg

who examined plaintiff just before the trial (R. 378, 379, 396,

411, 412).

Plaintiff returned to Ottumwa in December, 1950, and

claims to have remained under the care of Dr. Nelson up to

the time of trial (R. 46). Plaintiff also admitted that between

November, 1951, the time of the bridge accident and the time

of trial he had seen Dr. Nelson very often (R. 517, 518); that

Dr. Nelson had operated on him for a cyst in January, 1952

(R. 518) ; that during that time (November, 1951, to March,

1952) he had become very nervous and irritable and had a

stomach disorder (R. 520); that Dr. Nelson had treated him

for these conditions and that they were all “tied together”

with his back condition (R. 520). Defendant, of course, has

no way of knowing how much plaintiff was confined after the

bridge accident. °

Plaintiff claimed that as a result of his injury he doesn’t

sleep well (R. 49). The records of the Wesley Memorial Hos-

pital show that from January 18, 1950, until February 10,

1950, plaintiff “slept well,” “slept good,” “slept comfortably”

(Ex. 5). The same observation on the records are noted dur-

ing his later period of hospitalization from September 26th

to November 22nd, 1950.

Dr. Bratrud, plaintiff's only medical witness, had not

treated plaintiff and had examined him only once and that

was on February 28, 1952, three days before the case was

tried (R. 54). Dr. Bratrud testified that plaintiff had marked

hypertrophic arthritis (R. 63, 65, 73), which is ordinarily a

progressive thing that becomes increasingly worse (R. 74),

and that he may have had that condition for 10-15 years (R.

74). He also had an enlarged prostate which may be dis-

abling (R. 58, 75). It was further Dr. Bratrud’s opinion

10

based solely on his examination of February 28, 1952, that

plaintiff had a prolapsed or injured dise between the fourth

and fifth lumbar vertebrae and an aggravation of his pre-

existing arthritic condition (R. 67). Dr. Bratrud also testi-

fied that with such an arthritic condition as plaintiff had,

any injury or trauma always causes an aggravation and such

an aggravation always causes pain (R. 66).

Dr. Yoerg, a witness for defendant, also examined plain-

tiff shortly before the time of-trial and testified that in his

opinion plaintiff was not in condition to work at that time

(R. 378).

On cross examination, the plaintiff reluctantly admitted

that on November 23, 1951 (more than two years after the

date of his alleged railroad accident), he was involved in a

serious automobile accident (R. 107, 108). It is defendant’s

position that the disabilities plaintiff complained of at the

time of trial were caused in whole or in part by this automo-

bile accident.

The nature and seriousness of this accident was disclosed

by the testimony of witnesses Young, Kemp, and Lippincott.

Young, Ottumwa City Police Officer, was on duty the night

of November 23, 1951, and in response to an accident call,

went to the Blackhawk Bridge on the outskirts of the city

(R. 472). There he discovered a demolished automobile

identified as belonging to plaintiff (R. 474, 475). The auto-

mobile was found on the ground some 12 or 15 feet below the

floor of the bridge, resting on its top, the wheels in the air

(R. 474). The surface of the highway was somewhat upgrade

and was dry and not slippery (R. 469, 474). There had been

a heavy guard rail on the bridge, consisting of upright posts

4x4 inches or 4x6 inches in thickness (R. 466) and longi-

tudinal planks 2x4 inches and 1 inch or 2x6 inches in size

(R. 466). As shown in photographs, Exhibits E, F and G,

these upright posts were five or six feet apart. Plaintiff's

11

automobile had sheared off and destroyed 10 feet of this

heavy guard rail on the left side of the bridge (R. 465) and

then gone across the bridge and also sheared off 60 to 70 feet

of the posts and rail on the right side of the bridge (R. 467)

(this would be approximately 12 to 14 of the substantial

upright posts and guard rails). The plaintiff's hat and

driver’s license were found in the car but he was not present

(R. 474, 475). The officers looked for his body in the weeds

(R. 476). Shortly thereafter the plaintiff came into a restaur-

ant in Ottumwa near the scene of the accident where he was

observed by witness Kemp (R. 455). The plaintiff was bare-

headed, presented a disheveled, mussed-up appearance, and

there was mud and dirt on his clothes on one side only (R.

460, 461) (probably caused by his having been thrown out or

by his having crawled out of the car in the mud below the

bridge). There was vomit on his clothing (R. 462). Kemp

then went to the Blackhawk Bridge and observed the same

physical conditions as had Police Officer Young (R. 463-

467). On November 24, 1951, the morning after the bridge

accident, Deputy Sheriff Lippincott, of Wapello County,

Iowa, who was another wholly disinterested witness, went to

plaintiff's home for the purpose of serving an arrest warrant

on him and to take him in custody to downtown Ottumwa

for leaving the scene of an accident (R. 477, 478). During

the entire interview with Deputy Sheriff Lippincott the plain-

tiff remained seated on his davenport and did not attempt

to stand up (R. 478, 480). Plaintiff had a bandage on his

forehead and stated to Deputy Sheriff Lippincott that “He

wasn’t feeling well enough to go to town that morning” (R.

479). The blow on the head and vomit on his clothes would

justify the jury in finding he had concussion in the fall. It

is plaintiff’s contention that he did not sustain injury to his

back nor aggravation of the back’s existing condition in

this bridge accident. His version of the bridge accident is

12

that he was moving along at only five or six miles per hour,

that the bridge was a sheet of ice as a result of which his

car started to skid, that he slowed the car to about two miles

per hour and that he then stepped out of the car as it was

moving and before, as he said, the car “crashed” (R. 107)

into the guard rail on the right side of the bridge and plunged

to the ground (R. 107, 108). Plaintiff did not attempt to

explain how he could have stepped out of a car moving at such

a terrific rate of speed as to shear off 60 to 70 feet of the

heavy upright posts and longitudinal planking on the right

side of the bridge. Plaintiff further testified that the car

only fell five feet to the ground, instead of the 10 or 15 feet

estimated by all the other witnesses (R. 107-115). Either

fall would cause a serious jolt.

Dr. Bratrud, plaintiff’s only medical witness, who testified

that the plaintiff had marked hypertrophic arthritis (R. 63,

65, 73, 74), further testified that any injury or trauma

“always” causes an aggravation of such condition (R. 66),

and that such aggravation always results in pain (R. 66).

Dr. Bratrud had not treated plaintiff and had examined

him only once three days before trial, and then merely for

the purpose of testifying as to the plaintiff’s condition at that

time (R. 53, 54). Dr. Bratrud was the only medical witness

to find any objective symptom of back injury (R. 67), and

since he had not seen plaintiff until well after the date of

‘the bridge accident, his opinion and testimony were thus

necessarily based on plaintiff's condition after the bridge

accident, which of course indicates that the back condition

which Dr. Bratrnud found could have been caused by the

bridge accident or by the alleged railroad accident, or both.

The doctors who examined and treated plaintiff before the

bridge accident could find no objective evidence of back in-

jury (Dr. Householder, R. 270-273, 275, 284, 285; Dr, Conley,

R. 340, 341, 342, 346). Dr. Yoerg, defendant’s witness, who

13

had not seen plaintiff until after the bridge accident, testi-

fied that plaintiff was not in shape to work at that time

(R. 378), and that a fall such as plaintiff must have sus-

tained in the bridge accident could aggravate an arthritic

condition of the back (R. 410).

Obviously, if the testimony as to the bridge accident had

not been stricken, the jury certainly could have properly

found the shock of plaintiff's automobile breaking the heavy

guard rail, about 14 posts, falling 10 to 15 feet and having

the automobile land upside down on the ground below the

bridge would aggravate the arthritic condition of plaintiff's

back. The hospital record shows that on January 18, 1950,

the plaintiff weighed 190 pounds (R. 344, Ex. 5, p. 61); on

September 26, 1950, he still weighed 190 pounds (R. 343,

Ex. 5). The hospital record of September 26, 1950, states:

“He doesn’t complain of recent weight loss” (Exhibit 5,

page 3). Again, on March 29, 1951, Dr. Conley weighed plain-

tiff and found he still weighed 190 pounds (R. 344). Plain-

tiff weighed 160 pounds at the time of the trial (R. 115). The

records therefore show for 16 months from the alleged rail-

road accident on November 12, 1949, or at least until March

29, 1951, plaintiff's weight remained constant at 190 pounds

(R. 343, 344, 407, 408, Ex. 5). There is no record available

to defendant of the plaintiff's weight after March 29, 1951,

up to the time of the trial in March, 1952. However, during

that 12-month period, plaintiff's weight dropped 30 pounds

from 190 pounds to 160 pounds. The bridge accident occurred

during this period and if the Court had not stricken the

testimony as to the bridge accident, the jury could have

properly held the loss in weight all occurred after the bridge

accident.

At the conclusion of the testimony relating, to the bridge

accident, plaintiff’s motion to strike all the testimony relating

thereto was granted over defendant’s objection, and the

14

matter was withdrawn from the consideration of the jury

(R. 482, 483), it being held that as a matter of law there was

no evidentiary basis to establish that on November 23, 1951,

plaintiff was in an automobile accident of such a nature as to

cause injury to his back or to aggravete the pre-existing

arthritic condition of the back or to cause any disability

complained of.

The jury returned a verdict in plaintiff’s favor on March

8, 1952, in the amount of $86,560.00 (R. 614). The trial court

found that the amount of the verdict was grossly excessive

and not supported by substantial evidence (R. 638, 639) and

for that reason made an order granting defendant a new trial

unless plaintiff consent to an arbitrary reduction of $26,560

(30 per cent of total amount of the verdict) (R. 637). The

plaintiff so consented (R. 639).

In the State Supreme Court, among various grounds, de-

fendant asserted a new trial should be granted because such

a substantial remittitur showed the verdict was grossly ex-

cessive and must have been the result of passion and preju-

dice and was in conflict with the decision of this Court in

M. St. P. € 8. 8. M. Ry. Co. v. Moquin, 283 U. 8. 520, 521,

51 8. Ct. 501, 75 L. Ed. 1243, 1244 (1931), a case brought

under the Federal Employers Liability Act, in which this

Court said:

“In actions under the federal statute no verdict can be

permitted to stand which is found to be in any degree

the result of appeals to passion and prejudice. Obvious-

ly such means may be quite as effective to beget a wholly

' wrong verdict as to produté an excessive one. A litigant

gaining a verdict thereby will not be permitted the

benefit of calculation, which can be little better than

speculation, as to the extent of the wrong inflicted upon

his opponent.”

See petition for rehearing in the State Supreme Court,

pages 24 to 26.

15

We have set out some of the testimony in more detail than

we ordinarily would do in order that the Court may see that

the trial court presented fact questions to the jury even

though the overwhelming testimony of other witnesses dis-

puted the unsupported testimony of the plaintiff and then

when defendant presented testimony of two disinterested

police officials and one railroad employe to show that plain-

tiff must have been substantially injured in an automobile

accident at the Blackhawk Bridge the trial court said the un-

supported, unbelievable story of plaintiff as a matter of law

had to be believed and the jury could not consider the testi-

mony of the three defendant’s witnesses.

We believe the decisions of this Court mean that the de-

fendant as well as the plaintiff under the Federal Employers

Liability Act is entitled to a jury determination of facts and

the trial court had no right to determine as a matter of law

that it believed the testimony of the plaintiff and did not

believe the testimony of City Police Officer Young, Deputy

Sheriff Lippincott and railroad employe Kemp.

If the case had been brought at Ottumwa, Iowa, near where

the plaintiff and all three of the witnesses named lived and

near where the two accidents occurred, the Iowa Court and

jury very likely would have disagreed with the plaintiff.

If the testimony with reference to the Black Hawk Bridge

accident had not been decided by the trial court, the defend-

ant probably would have convinced the jury that whatever

disability the plaintiff had at the time of trial was due to

the Black Hawk Bridge accident and plaintiff’s general con-

dition, not to the claimed railroad accident of November

12, 1949.

While we believe the plaintiff failed to prove a cause of

action under the Federal Employers Liability ‘Act because

the accident could not have occurred as claimed by him and

while we also believe the verdict was so excessive as to indi-

16

cate the verdict was the result of passion and prejudice, we

have decided to assert one specification of error only in this

Court.

SPECIFICATION OF ERROR TO BE URGED

The Minnesota Supreme Court erred in holding that de-

fendant was not entitled to a jury trial on the question of

whether plaintiff sustained back injury or aggravation in the

Black Hawk Bridge accident. ~

REASONS FOR GRANTING THE WRIT

The question respectfully submitted in this petition is

exclusively of a federal nature since it relates solely to the

rights and liabilities created by the Federal Employer’s

Liability Act, Title 45 U. 8. C., Section 51, et seq.:

“The rights which the Act (F. E. L. A.) creates are

federal rights protected by federal rather than local

rules of law.” Bailey v. Central Vermont Ry., Inc., 319

U. 8. 350, 352, 63 8. Ct. 1062, 1063, 87 L. Ed. 1444, 1447

(1943).

As will be more specifically discussed hereinafter the ques-

tion presented is of particular significance in the uniform

adjudication of these federal rights, its determination hav-

ing import far beyond the particular parties and facts in-

volved herein.

It is submitted that the decision of the Court beiow is in

direct conflict with the applicable decisions of this Court and

with the principles of this Court’s holdings because the right

which Congress has granted to litigants in action brought

under the Federal Employer's Liability Act (hereafter re-

ferred to as “I. E. L. A.’’) to have disputed questions of

fact resolved by the jury, was denied defendant when the

trial court struck from the the record the testimony of wit-

nesses Young, Kemp and Lippincott. The stricken testimony

17

established that two years after plaintiff’s alleged railroad

injury and three and a half months before trial, plaintiff

was in a serious accident when he and the automobile he was

driving crashed through the guard rail of the Black Hawk

bridge, dropped 10 to 15 feet to the ground and overturned.

The impact was of such force as to mow down 10 feet of heavy

upright guard posts and longitudinal planking on the left

side of the bridge and 60-70 feet of the guard posts and plank-

ing on the right side of the bridge. The stricken testimony,

together with other evidence, particularly medical, much of

which is not controverted, created an evidentiary basis from

which the jury could have reasonably inferred that the dis-

ability plaintiff complained of at the time of trial, three and

a half months later, was caused in whole or in part by a back

injury or aggravation sustained in the bridge accident.

The independent resolution of this disputed question of

fact by both the trial court and the Minnesota Supreme

Court is not only legally erroneous but also ignores the strict

and repeated pronouncements of this Court in reference to

the separate function of the jury and the Court in F. E. L. A.

cases.

The jury’s function was defined in Tiller v. Atlantic Coast

Tine R. Co., 318 U. 8. 54, 68, 63 8S. Ct. 444, 451, 87 L. Ed.

610, 618 (1943), as follows:

“It appears to be the clear Congressional intent that,

to the maximum extent proper, questions in actions aris-

ing under the Act should be left to the jury * * *”

This was amplified in Bailey v. Central Vermont Ry., Inc.,

319 U. S. 350, 353, 354, 63 S. Ct. 1062, 1064, 87 L. Ed.

1444, 1447 (1943):

“The jury is the tribunal under our legal system to

decide that type of issue (Tiller v. Atlantic Coast Line

R. Co., supra) as well as issues involving controverted

evidence. Jones v. East Tennesee, V. and G. R. Co.,

128 U. 8. 443, 445, 9 S. Ct. 118, 32 L. Ed. 478; Wash-

18

ington and G. R. Co. v.McDade, 135 U. 8. 554, 572, 10

S. Ct. 1044, 1049, 34 L. Ed. 235. To withdraw such a

question from the jury is to usurp its functions.”

The distinction between the jury’s function and that of

the Court was clearly defined in Tennant v. Peoria & P. U.

Ry. Co., 321 U. 8. 29, 35, 64 S. Ct. 409, 412, 88 L. Ed. 520,

525 (1944), as follows:

“It is not the function of a court to search the record

for conflicting circumstantial evidence in order to take

the case away from the jury on a theory that the proof

gives equal support to inconsistent and uncertain in-

ferences. The focal point of judicial review is the rea-

sonableness of the particular inference or conclusion

drawn by the jury. It is the jury, not the court, which

is the fact finding body. It weighs the contradictory

evidence and inferences, judges the credibility of wit-

nesses, receives expert instructions, and draws the ulti-

mate conclusion as to the facts. The very essence of its

function is to select from among conflicting inferences

_ and conclusions, that which it considers most reason-

able. * * * That conclusion, whether it relates to negli-

gence, causation or any other factual matter, cannot be

ignored.”

In Lavender v. Kurn, 327 U. 8. 645, 652, 653, 66 S. Ct.

740, 744, 90 L. Ed. 916, 922 (1946), it was held:

“Under these circumstances it would be an undue in-

vasion of the jury’s historic function for an appellate

court to weigh the conflicting evidence, judge the credi-

bility of witnesses and arrive at a conclusion opposite

from the one reached by the jury.”

This Court has also recently held that it is exclusively

the jury’s function to resolve conflicting questions of fact

that arise in relation to defenses asserted in an action under

the F. E. L. A. Dice v. Akron, Canton & Youngstown R. Co.,

342 U. 8. 359, 72 8. Ct. 312, 96 L. Ed. 398 (1952).

19

The test of whether there is a sufficient evidentiary basis to

submit an issue of fact to the jury was stated in Wilkerson v.

McCarthy, 336 U. 8. 53, 57, 62, 69 S. Ct. 413, 415, 418, 93

L. Ed. 497, 502, 505 (1949):

“It is the established rule that in passing upon

whether there is sufficient evidence to submit an issue to

the jury we need only look to the evidence and reason-

able inferences which tend to support the case of a liti-

gant against whom a peremptory instruction has been

given.”

* * * * *

“And peremptory instructions should not be given in

negligence cuses ‘where the facts are in dispute, and the

evidence in relation to them is that from which fair-

minded men may draw different inferences.’ ”

On the basis of the foregoing decisions of this Court and

particularly the standard established in Wilkerson v. Mc-

Carthy, supra, it is clear that the evidence in relation to

the bridge accident when viewed in the light most favorable

to defendant created a jury issue.

The erroneous nature and prejudicial effect of the decision

below on this question is emphasized by the peculiar incon-

sistency between the lower court’s holding on the question

of the happening of the alleged railroad accident and the

happening of the admitted bridge accident. _

It is to be recalled that the only evidence to support plain-

tiff’s claim as to the happening of the alleged shaker bar acci-

dent, is plaintiff's own personal, self-serving testimony, the

credibility of which was completely destroyed by the testi-

mony of witnesses on both sides, including plaintiff's own

son.

Defendant’s witnesses Brossard and Corr, both intimately

acquainted with the physical construction and design of the

grate shaking equipment, as well as William E. Woodrow,

Jr., plaintiff's own son, whom plaintiff called as his own wit-

20

ness, all testified that in order to open the grates to such a

width as to permit one to insert a clinker rod, or “slide hook,”

knock out the clinkers and shove the live coals ahead onto

the front sections of the grate, as plaintiff said he was doing,

the shaker bar would have to be moved forward toward the

boiler head and that in order te then close the grates the

shaker bar would have to be moved backward in the direction

of the tender (Brossard, R. 232, 240; Corr, R. 441, 446;

Woodrow, Jr., R. 547, 548).

There was further testimony that the physical construc-

tion of the shaker bar was such that when it was properly

placed over the tapered shaker stub on the grate lug, it could

not possibly slip off on lateral motion, but only when pulled

directly upward, and even then it frequently had to be ham-

mered (R. 19, 20, 155, 156, 234, 237).

Fireman Boyd had personally used the grate shaking

equipment in question many times on the day of plaintiff’s

alleged accident, both before and after plaintiff claims to

have been hurt, and found nothing at all defective or unusual

in its operation (R. 156, 164). There is also testimony of

fireman Storey to the same general effect (R. 191, 192).

Even the plaintiff himself did not contend that such an

accident had occurred until almost two years later when a

lawsuit was started. Plaintiff saw his fireman, Robert Boyd,

a few minutes after the accident is now said to have taken

place, and made no comment to him, that he had been “vio-

lently thrown against the boiler head” (R. 149, 150); nor

did he tell Boyd that the grate shaking equipment was de-

fective and dangerous although he knew that Boyd would

have to and did use this same equipment on the rest of the

train’s run from Powersville, Missouri, to Ottumwa, Iowa.

Plaintiff also failed to mention the accident, the claimed in-

jury, or the alleged fact that the grate shaking equipment was

defective to Robert A. Thomas, the conductor in charge of

21

the train (R. 219-221). In making his engine condition re-

port for this date, it was plaintiff’s duty to report any un-

usual or defective condition of the engine in order that it

might be repaired; however, at that time he made absolutely

no reference to the shaker bar being worn and dangerous, nor

to the grate rods being caught, bent, sprung and otherwise

defective as he started claiming almost two years later (R.

97-99).

It should also have been significant to the lower court that

on January 18, 1950 (about eight weeks after the claimed

accident), the plaintiff told Dr. Householder how the alleged

accident occurred. At that time he made no claim that the

grate shaking apparatus had been defective; he made no

claim that the shaker had come loose; and although directly

related to the diagnosis and treatment of his condition he

made no statement to the doctor that he had been thrown

against the boiler head, striking his back (R. 265). Instead

it was his story at that time that he had experienced a sudden

and otherwise unexplained pain in his back while bent over

shaking grates (R. 264, 265).

Plaintiff told the same story to claim agent McLaughlin

in June, 1950, and expressly stated that the grate shaking

equipment was not defective (R. 485, 486).

It is also important that even before the alleged shaker

bar accident plaintiff's general physical condition was not

good. He had been suffering from “marked hypertrophic

arthritis” for many years (R. 63, 65, 73, 74, 269, 271, 273,

337, 343, 344). This alone is often disabling, but he also had

an enlarged prostate (R. 58, 75); he had rales in his chest

from being gassed in World War I (R. 74, 75); he had a

rectal abscess which required surgery (R. 266, 267). Asa

result of this generally poor health, plaintiff had not worked

regularly prior to the alleged shaker bar accident on Novem-

ber 12, 1949. However, for the six-month period from March

22

to August, 1950, he worked more regularly and made more

money than at any time before the alleged railroad accident

(Ex. A, R. 87).

In view of all these facts, not to mention the other medical

testimony in the case, which-is discussed in other portions

hereof, it is clear that the story plaintiff related at the time

of trial was opposed by his earlier statements and was not

only improbable, but impossible. It is unquestionably true

that when determining whether there is sufficient evidence

to submit a factual issue to the jury, a court is duty bound

to view the evidence and inferences therefrom in the light

most favorable to the party asserting the issue. But, it does

not follow that a court must blindly accept plaintiff's version

of the happening of an accident as true where it is contra-

dicted by immutable physical facts and by testimony of wit-

nesses on both sides.

However, such questionable testimony, alone, was held by

the courts below to create an evidentiary basis for the sub-

mission of the liability issue to the jury.

At the trial plaintiff made a weak and incredible attempt

to explain away the bridge accident. But in ruling on this

issue the courts below accepted his story as true as a matter

of law, and in an abrupt about-face, adopted a conflicting

and highly restricted view of the jury’s function in direct

disregard of the applicable decisions of this Court. The gross

inconsistency between these two holdings of the lower court

is shocking.

Had the courts below viewed all the evidence in relation

to the bridge accident in the light most favorable to defendant

and applied the test established by this Court in Wilkerson v.

McCarthy, supra, the following would have been shown:

1. Since plaintiff's automobile collided with the upright

guard posts 4” x 4” or 4” x 6” in thickness (R. 466) and

with the longitudinal planking 2” x 4” and 2” x 6” in dimen-

23

sion (R. 466) with such tremendous force as to shear it off

for a distance of 10 feet on the left side and then to cross

to the other side and shear off 60-70 feet on the right side

(R. 465-467) and since the surface of the highway was dry

(R. 469, 474), the car must have been moving at a terrific

rate of speed—much too fast to permit plaintiff to have

stepped out as he now claims.

2. This impact alone subjected plaintiff's person to a

severe jolt or concussion.

3. Since the car was moving much too fast to permit

plaintiff to step out and since his hat was found in the car

(R. 474), and since his clothes were covered on one side with

mud and vomit (R. 460-462), he must have been in the car

as it fell 10-15 feet to the muddy ground below the bridge

(R. 474) and landed upside down or rolled over (R. 474).

If not, he was thrown out of the car as it fell or as it rolled

over. In either event, he was subjected to a second traumatic

jolt or concussion.

4. Either one of the concussions which plaintiff’s body

received in the bridge accident was greater than he could

have received in the alleged and doubtful shaker bar accident

on the standing engine and either concussion received in the

bridge accident was sufficient to cause or contribute to the

disabilities plaintiff claimed thereafter at the time of the

trial.

5. Plaintiff’s physical appearance at the Milwaukee Cafe

immediately following the bridge accident (R. 460-462), the

fact that he was bareheaded (R. 460), the fact that his

clothing was soiled with mud and dirt on one side only

(R. 460), and the fact that there was vomit on his clothing

(R. 462) all substantiate the severity of the concussion plain-

tiff’s body must have received.

24

6. There was a cut or bruise on plaintiff’s forehead indi-

cating that he struck it against the steering wheel or dash-

board (R. 479). The fact that he was then nauseated indi-

cates the probability of a brain concussion or other serious

injury.

7. Up to the moment of the bridge accident, plaintiff was

able to drive his own automobile, but the day after the bridge

accident, according to his own admission, he was not even

physically capable of riding as a passenger a few miles into

Ottumwa in response to an arrest warrant and very possibly

he was not even able to stand up (R. 479, 480).

8. On March 9, 1950, four months after the alleged shaker

bar accident, plaintiff wrote a letter in his own handwriting

to defendant’s district adjuster stating that he had “re-

covered” from his alleged injury and returned to work (R.

105, 106, Ex. D).

9. Following the bridge accident, plaintiff, according to

his own testimony, was almost physically helpless, but follow-

ing his alleged railroad injury he worked for a long time and

made more money than at any other time in his life (R.

87, Ex. A).

10. Following the bridge accident and up to the time of

trial plaintiff was constantly under a doctor’s care (R. 517,

518). He visited the doctor every few days (R. 519), was

operated on for a cyst (R. 518), became nervous and irrit-

able (R. 520), and developed a stomach disorder (R. 520),

all of which was connected with his back injury according

to his own admission (R. 520).

11. Dr. Bratrud, plaintiff’s only medical witness, had

never seen plaintiff until about three and a half months after

the bridge accident, and testified that at that time (after

the bridge accident) plaintiff had a prolapsed intervertebral

25

disc (R. 67) and was suffering from an aggravation of his

long-exvisting arthritic condition.

12. Dr. Bratrud also testified that any injury or trauma

ALWAYS causes an aggravation of such an arthritic condi-

tion as plaintiff had (R. 66), and that such an aggravation

ALWAYS causes pain (R. 66).

13. Dr. Yoerg, a witness for defendant, like Dr. Bratrud,

had not examined nor seen plaintiff until February 25, 1952,

after the bridge accident (R. 370). While Dr. Yoerg did not

find a prolapsed intervertebral disc (R. 411 and 412), he did

testify that at that time plaintiff was not in a condition to

work (R. 378). Dr. Yoerg also said a fall of some consider-

able distance would aggravate an arthritic condition of the

back (R. 410).

14. The doctors who attended, treated and examined

plaintiff before the bridge accident, both outstanding men in

their profession, could find no objective evidence of back in-

jury and recommended that he continue working (Dr. House-

holder, R. 270-273, 275, 284, 285; Dr. Conley, R. 340, 341,

342, 346).

15. Plaintiff sustained a 30-pound loss of weight which

in all probability occurred after the bridge accident (R. 334,

344, Ex. 5, pp. 3 and 11) and clearly all occurred after March

29, 1951 (R. 344).

16. Plaintiff slept comfortably before the bridge accident

according to all the hospital records in evidence, for exam-

ple, see Exhibit 5, showing he “slept well,” “slept good,” or

“slept comfortably,” but after this bridge accident he could

not sleep well according to his own testimony (R. 216).

Surely these 16 separate strands of evidence and the in-

ferences that may be reasonably drawn therefrom created a

substantial evidentiary basis from which it could be reason-

26

ably inferred that the disabilities plaintiff complained of at

the time of trial were caused in whole or in part by an injury

sustained in the bridge accident.

However, both lower courts usurped the very essence of

the jury’s function by independently resolving this question.

In so doing, the test established in Wilkerson v. McCarthy, —

supra, was disregarded and the evidence in relation to the

bridge accident was NOT taken in the light most favorable to

defendant. Instead, the trial court and the Minnesota

Supreme Court each weighed the conflicting testimony and

determined what inference each would draw if sitting as

jurors in the case. In so doing, the plaintiff's view of the

evidence was adopted and the court below found, for example,

that the roadway was icy, and that the bridge was only five

or six feet above the ground. The only testimony to support

this is plaintiff's own self-serving statement and it is directly

contradicted by the testimony of police officers Young and

Kemp, who were wholly disinterested and said the roadway

was not icy and said the bridge was 10-15 feet above the

ground.

Similarly, the court below must have made the finding

that plaintiff's car was only going four or five miles per hour

and that while he was unable to stop the car, he stepped out

of the car before it went through the bridge railing. Surely,

the opposite conclusion, which seems to be almost inescap-

able, is clearly sustained by defendant’s evidence which

showed that the car was moving at such a terrific rate of

speed as to shear off 10 feet of posts and planking on the

left side and then to cross the bridge and shear off 60 to 70

feet of the heavy upright posts and longitudinal planking on

the right side of the bridge.

Completely ignored in the lower courts’ independent reso-

lution of this factual issue is the medical testimony itself.

Dr. Bratrud, the medical witness plaintiff vouched for, testi-

27

fied without qualification that ANY trauma or injury will

ALWAYS aggravate a back condition such as plaintiff had

and that ANY such aggravation ALWAYS results in pain.

Also overlooked is the vitally important fact that Dr.

Bratrud, the only medical witness to find objective evidence

of back injury, had not seen plaintiff until after the bridge

accident. Since his entire testimony and opinions were based

on plaintiff’s condition after the bridge accident, the injury

and disability found by Dr. Bratrud could have been caused

either by the bridge accident three months earlier or by the

alleged railroad accident 27 months earlier.

Since the physical facts demonstrate circumstantially that

plaintiff’s person and particularly his back were subjected

to a concussion of much greater force in the bridge accident

than in the alleged shaker bar incident, the inference is more

reasonable that the injury and disability found by Dr.

Bratrud were caused solely in the bridge accident or at the

very least were substantially contributed to by the bridge

accident. This conclusion also reconciles the conflict in

medical evidence that otherwise exists from the fact that the

doctors who examined and treated plaintiff before the bridge

accident could find no objective symptoms of injury from the

alleged railroad accident. Further reconciled is the conflict-

ing evidence as to plaintiff's claims of sleeplessness and loss

of weight.

To use the language of Wilkerson v. McCarthy, supra, “the

facts are in dispute and the evidence in relation to them is

that from which fair-minded men may draw different infer-

ences,” however, the lower court would not permit the jury

to pass upon this material evidence but made its own inde-

pendent resolution of it and must have held that the testi-

mony of three witnesses, two of whom were clearly disinter-

ested, in relation to the bridge accident must be disregarded

and the testimony of plaintiff alone (who was not disinter-

28

ested) as a matter of law must be believed and the court as a

matter of law should or could hold that smashing into the

guard rails and falling 10 or 15 feet could not have injured

plaintiff. This is manifestly beyond the function of a court,

the sole question for the court being whether the evidence

taken as a whole and viewed in the light most favorable to

defendant created an evidentiary basis from which the jury

could circumstantially infer subsequent injury or aggra-

vation.

On this basis it is submitted that the decision below is in

direct conflict with applicable recent decisions of this Court.

This conflict in principle is particularly striking in view of

the following:

“It is no answer to say that the jury’s verdict involved

speculation and conjecture. Whenever facts are in dis-

pute or the evidence is such that fair-minded men may

dra different inferences, a measure of speculation and

conjecture is required on the part of those whose duty it

ts to settle the dispute by choosing what seems to them

to be the most reasonable inference. Only when there

is a complete absence of probative facts to support the

conclusion reached does a reversible error appear. But

where, as here, there is an evidentiary basis for the jury’s

verdict, the jury is free to discard or disbelieve whatever

facts are inconsistent with its conclusion. And the

appellate court’s function is exhausted when the evi-

dentiary basis becomes apparent, it being immaterial

that the court might draw a contrary inference or feel

that another conclusion is more reasonable.”

Lavender v. Kurn, 327 U. 8. 645, 653, 66 8. Ct. 740,

744, 90 L. Ed. 916, 923.

Notwithstanding the obvious desirability of a compensa-

tion law which would protect railroad workers from the con-

sequences of injury on an insurance principle, extreme con-

cern has been expressed over the tendency of some State

Courts to administer the Federal Employer’s Liability Act as

if it were a Workmen’s Compensation Act. The decision of

29

the Minnesota Supreme Court herein goes even further, and

would permit “compensation” for an injury sustained in an

automobile accident not connected in any way with plaintiff's

employment.

National uniformity in the adjudication of the federally

created rights and liabilities of the F. E. L. A. requires strict

conformity to ann unced Federal standards on the part of

the State Courts. In Dice v. Akron, Canton & Youngstown

R. Co., 342 U. 8. 359, 361, 72 8. Ct. 312, 314, 96 L. Ed. 398,

403 (1952), it was stated :

“We granted certiorari because the decision of the

Supreme Court of Ohio appeared to deviate from pre-

vious decisions of this court that federal law governs

eases arising under the Federal Employer’s Liability

Act, 342 U. 8. 811, 72 8. Ct. 59.”

* * * * *

“Manifestly the federal rights affording relief to in-

jured railroad employees under a federally declared

standard could be defeated if states were permitted to

have the final say as to what defenses could and could not

be properly interposed to suits under the Act. Moreover,

only if federal law controls can the federal act be given

that uniform application throughout the country essen-

tial to effectuate its purposes.”

In particular, the failure of State Courts to respect the

jury function in F. E. L. A. cases has frequently motivated

the exercise of this Court’s discretion to grant certiorari.

“We granted certiorari because of important prob-

lems as to Petitioner’s right to a jury determination of

the issue of causation.”

Tennant v. Peoria & P. U. Ry. Co., 321 U. 8. 29,

30, 64 S. Ct. 409, 410, 88 L. Ed. 520, 522 (1944).

“Our duty to review certain cases of this nature is

settled.”

Carter v. Atlanta & St. Andrews Bay Ry. Co., 338

U. 8. 430, 431, 70 8S. Ct. 226, 228, 94 L. Ed. 236,

239 (1949).

30

“It was because of the importance of preserving for

litigants in F. E. L. A. cases their right to a jury trial

that we granted certiorari in this case.”

Wilkerson v. McCarthy, 336 U. 8. 53, 55, 69 8S. Ct.

413, 414, 93 L. Ed. 497, 501 (1949).

In the latter decision, a concurring opinion analyzes 55

petitions for certiorari in F. E. L. A. cases and makes the

following significant comment:

“From this group of cases three observations can be

made:

“(1) The basis of liability has not been shifted from

negligence to absolute liability.

“(2) The criterion governing the evercise of our dis-

cretion in granting or denying certiorari is not who loses

below» but whether the jury function in passing on dis-

puted questions of fact and in drawing inferences from

proven facts has been respected.

“(3) The historic role of the jury in performing that

function * * * is being restored in this important class

of cases.”

31

CONCLUSION

The question presented herein is unusual in that here it is

an employer rather than an employee who complains of the

deprivation of the right of jury trial. However, the principle

involved here is identical with the principle in those many

cases where this Court has granted certiorari on petition of

an injured employee.

Upon the grounds and for the reasons stated herein, it is

respectfully submitted that the decision of the Minnesota

Supreme Court is at variance with the applicable decisions

of this Court and that a writ of certiorari should be granted.

Respectfully submitted,

A, C. ERDALL,

Attorney for Petitioner.

OF COUNSEL:

M. L. BLUHM,

C. L. TAYLor,

of Chicago, Illinois.

S. W. Riper, JR.,

G. F. BENNETT,

of Minneapolis, Minnesota.