# Petition for a Writ of Certiorari — Shellhammer v. Lehigh Valley Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1954
- **Citation:** 347 U.S. 990

## Text

Supreme Court of the United States

October Term, 1953

1727

Kar NR SHELLHAMMER, General Administratrix of the

Estate of Water R. SANA, deceased,
Petitioner,

VS.

Lenich VatiBy Ramszoap Company, a corporation,
Respondent.

et

PETITION FOR WRIT OF CERTIORARI OF THE
SUPREME COURT OF THE STATE OF
NEW JERSEY

1

JAoon Rasswen,
of Counsel.

EEE
3 V. 13, BExxman 3-2320
3

Point II— The broad purposes of the Federal Em-
ployers’ Liability Act, supra, were defeated by the
dismissal of the action at the close of the plain-
tiff’s. case il

Porrr III—Petitioner was denied both her constitu-
tional right to a jury trial and due process of law. 17

Arrenprx—Opinion of Supreme Court of New Jersey. 26

Affolder v. New York C. & St. L. R. Co., 70 S. Ct. 509,
339 U. S. 96

Auslender v. Boettcher, 78 Colo. 427, 242 P. 672 .

Austin v. Pennsylvania Ry. Co., 82 N. J. L. 418. 15

Baltimore & Ohio R. R. Co. v. Groeger, 458. Ct. 16,

B. C. & A. Ry. Co. v. Turner, 152 Ma, 228, 196 4 >
WO bs eek au civ ßßßßv esp euae aD ance 31
Benedick v. Plotts, 88 Md. 52, 40 A. 1067 . n

i
PAGE
Boston & Maine R. R. v. Meech, 156 F. 2d 19 19
Brady v. Terminal R. Ass 'n. of St. Louis, 58 G. Ct.
—:. x eck; 5 11 fn.
Casey v. American Export Lines, Inc., 173 F. 2d
324, reversed on other grounds ................. 24 fn.

Davidson v. Peoria, ete., R. Co., 203 Ti. App. 498 ... 11 fn.
Dickey v. Hochschild Korn & Co., 157 Md. 450. 146

FJ7J7J7%%%)ͤõ Ü (ase. 15
Dutton v. Atlantic Coast Line R. Co., 104 S. Ct. 16,
88 S. E. 263, aff d 38 S. Ot. 191, 245 U. S. 6377 23 fn.
Eiseman v. Pennsylvania R. Co., 151 F. 2d 222. 16, 20
Ellis v. Union Pac. R. Co., 67 S Ct. 598, 329 U. 8.

— E JJͤ 8 19 fn., 24 fn.
Fratta v. Grace Line, 139 F. 2d 7442. 21
Hellwig v. Telephone Co., 110 F. 2d 5433. 20
Howard v. Louisiana & A. Ry. Co., 49 F. 2d 571 20
Jackson v. Pa. R. R. Co., 3 A. 2nd 719. —. 15
Jacob v. City of New York, 62 S. Ct. 854, 315 U. 8.

e csikericsle ie os 23, 23 fn.
Jamison v. Encarnacion, 50 S. Ct. 440, 281 U. 8.

BB oes i case yecsnc Beak ABI Dos oi sccccg cs 13, 25

Johnson v. Dierks Lumber & Coal Co., 130 F. 2d 115.. 21

Jones v. East Tennessee, Virginia, Georgia R. Co.,
9 8. Ct. 118, 128 U. S. 4. 25 fn.

Lavender v. Kurn, 66 S. Ct. 740, 327 U. S. 645 . 24 fn.
Louisville & Jeffersonville Bridge Co. v. U. S., 39
S. Ct. 355, 249 U. . 63444. 10 fn.

McDonald v. Great Northern Ry. Co,, 166 Minn.
87, 207 N. W. 194 N

eee „ „„ „„

eee eee He,

PAGE
Missouri-Kansas-Texas R. Co. v. Evans, 250 8. W.

N. T., N. H. & H. R. Co. v. Leary, 204 F. 24 461 .
Norfolk & W. R. Co. v. Earnest, 33 S Ct. 654, 229

0 Rourke v. Pennsylvania R. Co, 194 F. 2d 612 .... 14

Parsons v. Bedford, 3 Pet. 433, 28 U. S. 433
Pennsylvania Co. v. U. S., 241 F. 824, 154 C. C. A.
5286, affirming, D. C. 237 F. 471

Saxton v. Delaware & Hudson Co., 256 N. T. 363,

Slocum v. New York Life Ins. Co., 228 U. S. 364 eae
Sokol v. Liebstein, 9 N. J. 93

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

Texas & P. Ry. Co. v. Mix, 193 S. W. R. 2d 542
Tracy v. Terminal R. Ass 'n. of St. Louis, 170 F.

i RULE a ea ie
Urie v. Thompson, 69 S. Ct. 1018, 337 U. S. 163 . 10 fn., 11

Wilkerson v. McCarthy, 69 S. Ct. 413, 336 U. S. 53... 18, 22
Williams v. New York Central R. R. Co,, 402 Il.
494, 84 N. E. 2d 399 . 11 fn, 24 fu.
Wilson v. Director General of Railroads, 95 N. J. L.
482, 112 A. 732, C. D. 41 S. Ct. 538, 256 U. S. 700... 23 fn.

iv
Ee ; ‘ ‘page
Wolf v. Chicago, M., St. P. & Pac. R. Co., 180 Minn.
TT... A ͤ es 23 fn.
Zumwolt v. Gardner, 160 F. 24.298 ................ 11 fn.
Statutes Cited
Title 28 U. S. C., Section 12. 1
Title 45 U. S. C., Section 1 et seq., Safety Appliance
JV! UE cee dks ew Sk ek 2, 4, 6, 10 fn.
Title 45 U. S. C., Section 51 et a ROE EOE 2, 3, 3 kn., 4, 11
Constitution of the United States, Fifth Amend-
e RE Ea Oe OME ORI Cae ee 3 fn.
Constitution of the United States, Seventh Amend-
C POLES ONS SAEWER TESTA AK ba 4fn.
\
> ji *

0

*
SuNLLAAM MAN, General Administratrix of the
Estate of Wala R. Sumizuamunn, deceased,
Petitioner,

vs.

Lauicn Vater Ramazoapn Company, a corporation,
Respondent.

anion

PETITION FOR WRIT OF CERTIORARI OF THE
SUPREME COURT OF THE STATE OF
NEW JERSEY

Katherine Shellhammer prays that a writ of certiorari
issue to review the mandate of the Supreme Court of the

State of New Jersey entered in the above entitled action
on the 25th da 1954.

Opinion Below

The opinion of the Supreme Court of the State of New
Jersey, not officially reported as yet, is annexed hereto.

Jurisdiction

The jurisdiction of this Court is invoked under Title
28 U. S. C,, Seotion 1264.

Questions Presented
1, Where the evidence permits of but one inevitable,
logical inference, does such inference meet the quantum
of proof necessary to establish a violation of a statutory

duty imposed by the Safety Appliance Act, 45 U. S. C.
Section 1, et seq.

2. In a death action for damages, predicated on the
provisions of the Federal Employers’ Liability Act, 45
U. S. C. Section 51, et seq., is circumstantial evidence suffi-
cient to establish a prima facie cause of action where the
proven facts permit of but one inevitable, logical inference:
that the employee could not have been killed by the train
at which he was working but for a breach of duty on the
part of his employer.

3. May a railroad create immunity for itself, from the
obligations imposed by the provisions of the Federal Em-
ployers’ Liability Act, supra, by asserting its own rules,
irrespective of the standard of care long established by
railroads generally throughout the United States, as the
custom and practice of the trade.

Reasons For Granting the Writ

1. Benefits provided by Acts of Congress, being matters
of general public concern, any evasion or curtailment
thereof, as in the case at bar, constitute a matter of great
and general importance, meriting a review by this Court.

2. Petitioner’s offer of proof, as to the established
standard of care promulgated by railroads generally
throughout the United States and adopted as the estab-
lished custom and practice of the trade, was rejected by
the Trial Court, on the sole basis that only the rules of
the respondent railroad were material and admissible as
evidence fifi

bat 7 7

Such revolutionary new rule, which in effect grants
immunity to a violator of the provisions of the Federal
Employers’ Liability Act, supra, contrary to the intent
of Congress,! and which permits a railroad, through the
expediency of creating its own standard of care to escape
iability for breach of a duty recognized by all other rail-
roads, merits review by this Court. )

3. Petitioner was denied due process of law* by the
action of the trial judge in taking from the jury, onto him-
self, the decision of disputed factual issues, solely on the

145 U. S. C., sec. 51 et geg.:

Every common carrier by railroad while engaging in commerce
between any of the several States or Territories, or between any of
the States and Territories, or between the District of Columbia and
any of the States or Territories, or between the District of Columbia

4

basis that it was for him and not the jury to decide issues
of fact when established by circumstantial evidence.

The decision of the lower Court, sustaining the action
of the Trial Court in directing a verdict at the close of
plaintiff’s case under such circumstances, is a matter of
general concern and utmost importance and seems to be a
denial of a most importance constitutional right: trial
by jury.

Statement

This is an action pursuant to the provisions of the
Safety Appliance Act, supra, and the Federal Employers’
Liability Act, supra.

Katherine Shellhammer, as Administratrix on behalf of
herself and her three children, Nancy, 16 years of age,
Raymond, 10 years of age and Jane, 18 months old, re-
spectively, claimed damage for the wrongful death of her
husband, Walter R. Shellhaminer.

Walter R. Shellhammer, the decedent herein, was em-
ployed by the respondent as a car inspector leader as
supervisor of car inspectors (P7a-11).

The decedent was 45 years of age (Plla-25).

On the 13th day of January, 1951, the decedent was
last seen alive by John Gumhold, a car inspector, who
“‘okayed’’ the train (P45a-26). Gumhold told the yard-
master~ef-the train was ‘‘okay’’ (P46a-29). Thereafter,
an air test was made by John P. Hann, the engineer, who
fixes the time of said test at shortly after 8:00 p. m.
(P9la-20). He stated no further tests were made (P88a-

Constitution of the United States, Seventh Amendment.

*

14).“ He fixed the time that the train pulled out at about
8:15 or 8:20 p. m. (P91a-16).5

James P. O’Donnell, the trainman, fixes the interval of
time from the last coupling and the starting of the train
at approximately 15 minutes (P67a-19).*
The body was discovered by Michael Kobal, a trainman,
who reported it to Joseph S. Smith, the yardmaster, at
8:30 p. m. (P19a-18). Decedent’s head was between the
tracks on the north side of the rail and the body on the
south side (P20a-27), 2% car lengths east of Washington
Street crossing and #3 track (P20a-3).

It was stipulated that the decedent was engaged in
Interstate Commerce at the time of his death (P1la-6).

It was stipulated that the first sign of blood was found
on the second wheel from the front end of the 24th car in
the train (Plla-19).

At the close of plaintiff’s case, the defendant moved for
judgment in its favor, which the Trial Court granted.

From the judgment entered thereon, the plaintiff ap-
pealed to the Appellate Division of the Superior Court of the

*Q. During those 10 minutes, did you make any other tests from
the last test to the time the train pulled out? A. It is not necessary.

N. Therefore you didn’t make it? A. That is right.

Q. Therefore you made no test after-10 minutes? A. No, sir.

2. The time when you got it completely finished and assembled
ready to go? A. It was about 8:15 or 8:20 when we pulled out.

*Q. And it was after that coupling that the train moved out, 15
minutes later. Is that correct? A. You are not figuring what tran-
spired between that period, you are just talking time?

Q. That is right. A. I would say, from the time we made that
coupling, I would say about 15 at the latest; I figure 15 minutes,
maybe not to a minute, but 15 minutes I would say.

State of New Jersey which Court affirmed the judgment
of the Trial Court on the 29th day of April, 1953,

Plaintiff then petitioned the Supreme Court of New
Jersey for certification to the Appellate Division to review
the judgment of the Appellate Division affirming the Su-
perior Court of New Jersey, which petition was granted
on September 14, 1953.

The Supreme Court of the State of New Jersey, after
argument on November 30, 1953, affirmed the judgment of
the Superior Court, Appellate Division, on the 25th day
of January, 1954.

ARGUMENT
POINT I

The defendant was liable as a matter of law for vio-
lating its statutory duty imposed by the Safety Appli-
ance Act, supra.

The probabilities or inferences that Shellhammer met
his death while in the act of replacing a defective air hose
can reasonably be drawn from the following facts:

Shellhammer was last seen alive in respondent’s yard
at Washington Street, Jersey City, New Jersey (P47a-21,
P7a-13). He was not wearing gloves ( P80a-34), and there

7

of any hose coupling in the vicinity prior to the accident
(P62a-28-630-8),' (Pé4e-1731).% ?:
The two car inspectors working under Shellhammer’s

supervision testified as to the work they each did (P47a-17,
P79a-80a). Neither testified that he changed the air hose.

Te evidence is that an air hose may spring 8 leak, the
same as an auto tire, without any prior notice (P85a-28-35).

Dr. Manuel Hernandez, Deputy County Physician, ex-
plained that when the pressure of the front wheel was

L. Did you at any time during the day or evening have occasion
to go east of the Washington Street crossing? A. In the tour of
duty?

Q. Yes. A. Starting as of 3:00 o'clock?

Q. Yes. A. Why, of course.

2. How many times would you say yo were east? A. That I
can’t answer.

©. Were you over in the vicinity of say the third electric pole?
A. I may have went even further.

* * *

2. At any time you were there, did you see any objects such as
coupling hose lying around the tracks? A. Not that I can recall,

. Stat
A. No flashlight. I had a white light and a red light.
2. Were you able to see the ground? A. Surely.
Q. Did you see any coupling hose there on the south side? A. No,
sir.

|

8 a
released, the blood might come down on the after part of
the train (P42025-P43n9)2

‘These facts justify the inference that after the two car
inspectors had | uded the work, given the (okay! sig-

the direct and proximate cause, in whole or in part, was
a defective part of the train break system.”

#0. Doctor, could you give us an opinion as to how long it would
take for the blood to come out of the body when a wheel goes over it,

the injury quite markedly so that it would allow very little bleed-
ing. It crushes the tissues so hard that it would not allow an

Mr. Broadhurst: I am moving to strike that out, the latter
part because it is a possibility.
The Court: Strike € word “subsequently”,
10 Title 45, U. S. C., Section 1: Driving-wheel brakes and appli-
ances for operating train-brake system

without
brakemen to use the common hand brake for that purpose/
1893, c. 196, Sec. 1, 27 Stat. 531. „

9

In the 2 Savton v. Delaware d Hudson Co. (1931)
256 N. T. 363, 176 N. E. 425, Justice Lehman rendering the

O Donnell v. Elgin, J. & E. Ry. Co. (1949), 70 8. Ct. 200,
338 U. S. 384, a death action predicated on the Safety

Appliance Act, supra, and Federal Employers’ Liability
held:

i
:
if

1

proof of care or diligence, St. Louis,
tain & Southern R. Co. v. Taylor, 210 U.
28 8. Ot. 616, 620, 52 L. Ed. 1061; Chicago,
R. Co. v. United States, 220 U. 8.

erg
215

3
Brady v. Terminal Railroad Ass’n of St. Louis, 303
U.S. 10, 15, 58 S. Ct. 426, 429, 82 L. Bd. 614”? (p. 904).

“As to the claim based on the Safety Appliance Act,
we hold that the plaintiff was entitled to a peremp-

a Affolder v. New York C. & St. L. R. Co, 70 S. Ct. 509, 330

U. S. 96, affirmed its decision in, and quoted O’Donnell case, supra.

In the case of Louisville & Jeffersonville Bridge Co. v. U. S., 39
held

for Congress when enacting the law and it has repeatedly been
held by this court that other provisions of the Safety Appliance
Act impose upon the carrier the absolute duty of compliance in
cases to which they apply, and that failure to comply will not be
excused by carefulness to avaid the danger which the appliances
prescri were intended to guard against, nor by the adoption
of what might be idered equivalence of the requirements of
the Act. St. Louis, Iron Mountain etc. Ry. v. Taylor, 210 U. S.
28 S. Ct. 616, 52 L. Ed. 1061; Great Northern Ry. Co.
: . S. 349, 36 S. Ct. 124, 60 L. Ed. 322; St. Joseph
G. I. Ry. Co. v. Moore, 243 U. 8. 311, 37 S. Ct. 278, 61
L. Ed. 741” (p. 359).
In the case of Urie v Thompson, 69 S. Ct. 1018, 337 U. S. 163, this
concise statement was made:
EIn this view the Safety Appliance Acts, together with the
Boiler Inspection Act, are substantively if not in form amend.
ments to the Federal Employers’ Liability Act. They dispense,

1¹

POINT 11.

There was a clear breach of duty under the provisions
of the Federal Employers’ Liability Act, supra.

The leading case of Urie v. Thompson, 69 8, Ot. 1018, 337
U. S. 163, on page 1030 enunciated the existing judicial

Liability Act, ewpra.
Justice Rutledge, delivering the opinion of the Court, stated:
“‘Considerations arising from the breadth of the
statutory language, the Act’s humanitarian purposes,
its accepted standard of liberal construction in order
to accomplish those objects, the absence of anything
in the legislative history indicating a congressional
intent to require a restricted interpretation
making proof of such violations is effective to show negligence as
a matter of law” (p. 1034).
The case of Brady v. Terminal N. Ass'n. of St. Lowis, 58 S. Ct. 426,
303 U. S. 10, again affirmed this holding as follows:
“The statutory liability is not based upon the carrier’s negligence.
The duty imposed is an absolute one, and the carrier is not

wanes revs hte ere

v. Peoria, etc. R. Co.,
203 Ill. App. 498; United States v. Northern Pac. R. Co., 287 Fed.
780; Williams v. New Y ork Central R. R. Co., 402 II. 494, 84 N.
2d 399; Pennsylvania Co. v. L. S., Ohio 1917, 241 F. 824, 154 C. C. A.
affirming, D. C., 237 F. 471; U. F. v. Chicago & A. R.
A. II. 1918, 250 F. 101; ;

re i 157 115 11174152
if ie 1 1173 Hi 21271 110
1 11 Laie
a Hi 1 %
e : iid
117 TE iy Hi 215411 15

i

*
3

1213

1

fi
bil

1115

“The Federal Employers’ Liability Act was de-

Terminal R. Ass'n of St. Lowis v. Schorb, 151 Fed. 2 361
365

„One of the main purposes of the Federal Em-
ployers’ Liability Act was to modify the common law
barriers against

3 the fellow servant rule, the defense of contributory
negligence, and the defense of assumption of risk.

14

O’Rourke v. Pennsylvania R. Co., 194 Fed. 2d 612 at
% * * to provide the railroad employees a remedy
for injury or death while engaged in interstate com-
merce, ’? aS 9 2 ;

Shortly after 8:00 p. m.—An air test was made by John

P. Hann (P91a-20). 7 |

8:15 or 8:20 p. m.—The train pulled out (P91a-16).

8:35—Discovery of body was reported to yardmaster by
Michael Kobal (P19a-18).

When Shellhammer was last seen alive he;

(a) was not wearing any work gloves,

(b) had no tools in his hands, :

(c) there was no air hose on the ground or in his
vicinty at the time.

After Shellhammer’s death;—

(a) he was wearing a glove on his left hand,

(o) a discarded air-hose was on the ground in his
vicinity. :

It would seem that such facts would constitute a proper
basis for a jury to determine that after the work coupling
made shortly after 8:00 p. m., that Shellhammer heard air
escaping from a connecting air-hose, put on his work gloves,
shut off the air cock, discarded the defective hose, replaced
it with a good one, turned on the air and the train started
before he had a chance to get out from between the 23rd
and 24th cars at 8:15 or 8:20 p. m.

15

These facts would justify an inference that respondent
caused the decedent’s death.

_ Whether a duty was violated was for the jury to say.**

The defendant was under a duty of so acting, in respect
of existing facts and circumstances, as not to inflict upon
Shellhammer fatal injury if such could have been avoided
by the exercise of that degree of care and prudence which

men of ordinary judgment and prudence would reasonably
be expected to exercise under like conditions.“

In addition to the negligence of the defendant in failing
to make diligent and proper inquiry as to whether or not
it was safe to start the train under the prevailing circum-

ee e e ae ee ee ee
violating its own rule (Rule 30), which provides for the
ringing of a bell when the engine is about to move (P28a-11).

13 In Austin v. Pennsylvania Ry. Co., 82 N. J. L. 416 (E. & A.
1911), Justice Swayze said:

32 ary iuntne sug age ane

E probability, rather

of certainty, exclude the inference favorable to the defendant.

The question arises only where the evidence is circumstantial,

and where probability may be all that is attainable.”

To have the quality of negligence, human action or non-action
does not have to be in the light of absolute knowledge that another
will be injured

See: Texas & P. Ry. Co. v. Mix, 193 S. W. R. 2nd 842.

10 See: B. C. & A. Ry. Co. v. Turner, 152 Md. 228, 136 A. 609
(1927); Dickey v. Hochschild Korn & Co., 157 Md. 450, 146 A. 282
(1929) ;Benedick v. Plotts, 88 Md. 52, 40 A. 1067 (1898) ; Jackson
v. Pa. R. R. Co., 3 A. 2nd 719 (Md. E. & A. 1939).

16

Such violation. constituted negligence.

The train was started at the suggestion of James
O’Donnell, who could not and did not see 6 to 8 cars

safety exists as a matter of law. See: Tennant v. Peoria

Evidence that railroad employee was killed ap-
proximately at point where engine, in violation of
railroad rule, commenced backward movement with-
out warning and where employee might properly
have been together with presumption that employee
was engaged in performance of his duties and exer-
cised due care for his own safety, was sufficient to
authorize jury finding that negligence of railroad
was proximate cause of employee’s death. Federal
Employers’ Liability Act, Sec. 1 et seq., as amended,
45 U. 8. C. A. Sec. 51 et seg.

i | ö liability by
United States Supreme Court in the case of Tennant v. Peoria &
: - Ry. Co., 321 U. S. 29 (1944), and also by the Court of b
i Circuit, in the case of Eiseman v. Pennsylvania R. Co. 151

7 8
1
2
8
8
a
8
8

17

POINT III
Petitioner was denied both her constitutional right
to a jury trial and due process of lam.
Thee des Process of law seems to be indicated by the

following :

The Court below barred any testimony as to a generally
accepted standard of care and, for that matter, any evi-
dence as to the standard of care established by the respond-
ent itself.

During the testimony of John T. Van Orman, General
Car Foreman, the Court sustained objections to the follow-
ing questions (P105a-12) :

„Did you make any provision to have the blue
light displayed while the air hose was being coupled?

Mr. Broadhurst: I object to that.
The Court: Objection sustained.’’

(Pllla-12) :

„. Isn't it a fact you had a rule which I believe
you personally promulgated in accordance with the
rules of all railroads, that an air slip should be
‘given to the engineer?

Mr. Broadhurst: I object to that question.
The Court: Sustained.”

During the testimony of John P. Hann, Engineer, the
Court sustained objections to the following questions (P97a-
15):

„Mr. Rassner: Then I make the tender of proof
that there is an established usage and custom

18

throughout the United States before any train engi-
neer pulls his train out of the yard, he must get an
air slip from the chief inspector, and until he gets
that slip he may not move the train at all out of the
yard. | 8

Mr. Broadhurst: I object to the tender of proof,
if your Honor please. We are dealing with the
operation of a specific railroad under its rules and
‘regulations of that railroad. What is done elsewhere,

if it is in fact done—

Mr. Rassner: I make the tender of proof, and
I say that is the law.

The Court: I understand. Sustain the objec-
tion.

During the testimony of Jesse A. Kerby, called as an
expert witness on behalf of the plaintiff the Court sus-
tained an objection to the following question (P116a-5) :

Can you tell us, based on your experience
of some 40 odd years, whether on January 13, 1951,
there was established usage and custom universal
with all railroads, including the Lehigh Valley Rail-
road, that is all A-1 Railroads in the United States,
specifying the manner of a formation of car inspec-
tors giving information upon which a train is moved
out of a yard after the cars are assembled? Yes
or no.

Mr. Broadhurst: If your Honor please—
The Court: Sustain the objection.’’

In the case of Wilkerson v. McCarthy, et al., 336 U. 8.
53 (1949), the Supreme Court was quite concerned with

19

whether the railroad lived up to the standard of care com-
mensurate to the dangers of the business.

A safe place to work, adequate lookouts and warning,
the surrounding facts and circumstances and the custom
and practice with reference to railroad operation have
always been considered as constituting factual issues ex-
clusively within the province of the jury to decide.

In the case of Boston & Maine R. R. v. Meech, 156 F. 2d
109 (C. C. A. Ist 1946), the Court of Appeals for the First
Circuit held that the failure to provide precaution of a
lookout and adequate whistle signals constituted negligence.

Said Court further held that the question of whether the
surrounding circumstances provided the deceased employee
with a reasonably safe place wherein to work was a question
of fact for the jury.

In the Tennant case, supra, it was quite apparent that
where it appeared that a locomotive had remained sta-
tionary for some minutes and then started, that the question
of the company’s own written rules, as well as the general
practice and custom also as to the ringing of an engine bell,
were all material matters.

The Court below erroneously refused to permit the
presumption that the decedent exercised due care for
his own safety at the time of his death, in spite of such
holding in the Tennant case, supra.

The Court below erroneously searched the record for
conflicting circumstantial evidence in order to take the case

18 In the case of Ellis v. Union Pac. R. Co., 329 U. S. 649 (1947),
the question of adequate warning was held to be of basic i
The fact that there was conflicting evidence was held not to be justi-
fication for the Court taking the case from the jury. The custom of
the trade was likewise held to be an important factor.

The ability of the engineer to see or have other knowledge or in-
formation of the surrounding circumstances were also submitted as
material factual questions.

20

away from the jury, when such procedure was specifically
held to be erroneous by the Supreme Court of the United
States in the Tennant case, supra.

In the case of Eiseman v. Pa. R. Co., supra, it was held
that a witness who testified that he did not hear a bell
ringing on the locomotive which struck plaintiff’s decedent
was in a position where in all probability’’ he would have
heard a bell signal if one had been given. Witness’ testi-
mony was more than ‘‘negative evidence’’ and presented
question for jury on the issue of giving bell signal.

The law is clear that on a motion to direct a verdict
for the defendant every fact in evidence and every reason-
able inference therefrom in favor of the plaintiff is ad-
mitted by the defendant.

Hellweg v. Telephone Co., 110 F. 2d 546 (C. A.

D. C., 1940); .
McKinney v. Public Service, 4 N. J. 229 (1950);
Sokol v. Liebstein, 9 N. J. 98, 98 (1952).

In the case of Howard v. Louisiana & A. Ry. Co., 49
F. 2d 571 (CO. C. A. 5th, 1931), the Court stated on page 574:

„This state of the evidence requires that the issues
of fact raised upon conflicting testimony ‘shall be
settled by a jury, and that the court shall not assume,
directly or indirectly, to take from the jury or to
itself such prerogative’.’’

In the case of Baltimore d Ohio R. R. Co. v. Groeger,
266 U. S. 521 (1924), the Court stated on page 524:

„The credibility of witnesses, the weight and pro-
bative value of evidence, are to be determined by
the jury and not by the judge.’’

21

As early as 1830, in the case Parsons v. Bedford, 3 Pet.
433, 1830, 28 U. S. 433, the Court laid down a principle
of law which has consistently been followed by all the
Courts of this country, and which principle was reiterated
in the case of Slocum v. New York Life Ins. Co., 228 U. S.
364, wherein the Court stated on page 378 as follows:

The trial by jury is justly dear to the American
people. It has always been an object of deep interest
and solicitude, and every encroachment upon it has
been watched with great jealousy.

Said Court further stated, on page 378, quoting from
the case of Walker v. New Mewico d c. Railroad Co., 165
U. S. 593:

This requires that questions of fact in law
actions shall be settled by a jury, and that the court
shall not assume directly or indirectly to take from
the jury or to itself such prerogative.“

In the case of Johnson v. Dierks Lumber d Coal Co.,
130 F. 2nd 115 (C. C. A. 8th, 1942), the Court stated on
page 119:

„Moreover, where reasonable men may draw dif-
ferent inferences from the evidence, it is the province
of the jury to determine which is proper.’’

The Court in Fratta v. Grace Line, 139 F. (2d) 743,
744 (C. C. A. 2nd, 1943) stated as follows:

„We take this occasion to suggest to trial judges
that, generally speaking—although there may be
exceptions—it is desirable not to direct a verdict at
the close of the evidence, but to reserve decision on
any motion therefor and allow the jury to bring in
a verdict; the trial judge may then, if he thinks it
improper, set aside the verdict as against the weight

tions as these as well as others.’ Jones v. Hast
Tennessee, V. & G. R. Oo., 128 U. S. 448, 445, 32 L. ed.

a | 52k

On 5884
11. 2 tances
8

> 7

York, 315 U. S. 752, 62

8. Ot. 854 (1942).
The Supreme Court of the United §

a

Jacob v. City of New

See:

Was a matter to be accepted
Trial Court was in error in

The importance of trial by jury cannot be over em-
phasized nor the denial of said constitutional right be per-

mitted to go unchallenged. 1e

O Donnell v. Elgin J. & E. Ry. Co.,
Me need not resolve the

Central Vermont Ry., ne., 63 S.
v. Peoria & P. U. Ry. Co,, 64 S.
Kurn, 66 S. Ct. 740, 327

R. R., 67 S. Ct. 401, 329
S. Ct. 598, 329 U. S. 649; stated:

22 Ane: Bement Senalareen, ability A toe, role

Cited with approval in Casey V. American Export Lines Inc., 173
Fed. 2d 324, reversed on other grounds.

;

Ff 4 .

.
„

Mr. Justice Butler declared in the case of Jamison v.
Encarnacion, supra: :

„The act is not to be narrowed by refined reasoning
or for the sake of giving ‘negligence’ a technically
restricted meaning. It is to be construed liberally
to fulfill the purposes for which it was enacted, and
to that end the word may be read to include all the
meanings given to it by courts, and within the word
as ordinarily used.“

ated repeatedly by this Court as requiring the s
of such instant case to the jury.

Jones v. East Tennessee, Virginia, Georgia R. Co., 9 S. Ct. 118,
128 U. S. 443:

why it should not decide such questions as
(negligence, etc.) as well as others.”
Missouri-Kansas-Texas R. Co. v. Evans, 250 S. W. 2nd 385:
“The Federal cases hold that this matter of causation must be
submitted to the jury unless there is a complete absence of proba-
tive facts to support the jury’s finding (p. 391).

(Orion or Supremes Count)

Argued November 30, 1953—Decided January 25, 1954.

On certified appeal from the Appellate Division of the
Superior Court.

Mn. Lovis J. Grzensenc arguéd the cause for the appellant.
Mn. Samuzt M. Corn, Attorney.

Ms. Cuantzs W. Broapuursr argued the cause for the
respondent. Messrs. Emory, Lancan & Lams, Attorneys.

The opinion of the Court was delivered by
Heuze, J.

On January 13, 1951 the deceased Walter R. Shellham- —
mer suffered fatal injuries while pursuing his employment
in interstate commerce with the defendant railroad; and,
asserting actionable negligence under the Federal Employ- —
ers’ Liability Act, 35 Stat. 65, 36 Stat. 291, 53 Stat. 1404,
45 U. S. C., sec. 51, et seq., recovery is sought in this pro-
ceeding of the pecuniary loss sustained by the widow and
next of kin of the deceased.

There was a judgment of dismissal at the close of plain-
tiff’s case, for want of proof of a negligent failure of duty
as the proximate cause of the fatality; and the Appellate —
— We certified the cause for appeal on plaintiffs
motion. ;

The deceased was a foreman of car inspectors and
repairers. His particular assignment involved the assem-
bling of three groups of freight cars into a single train, in
the railroad’s Jersey City freight yard, for movement to
Oak Island, eleven miles away. The last of the were i
coupled, the air hose connected and the valves by
eee,

sonable care, should have known, that Shellhammer was
in the vicinity of the train, and that a leak in an air
hose or any defect, for that matter, might present itself
at any moment, and a conscientious employee like Shell-
hammer would take steps to remedy such a situation,” and

But, if there is to be a submission to the jury, there must

injury, and not from the injury itself. The common-law
concept of negligence is embodied in the Federal statute.
The question is what a reasonable and prudent person

would have done under the circumstances; and, where fair-

minded men would differ on that, the issue goes to the
trier of the facts. Stone v. New York, C. & St. L. R. Co.,
344 U. S. 407, 73 8. Ct. 358, 97 L. ed. 441 (1958). And the
injury must perforce be the natural and probable conse-
quence of the negligence or wrongful act, such as ought to
have been foreseen in the light of the attending circum-
stances. Events ‘‘too remote to require reasonable pre-
vision need not be anticipated. Brady v. Southern R. Co.,
320 U. S. 476, 64 8. Ct. 232, 88 L. ed. 239 (1943). The
burden of proving negligence and proximate cause rests
upon the plaintiff; ‘‘mere speculation”’ is not enough; the
question is whether there are probative facts reasonably
justifying the inference of fault and proximate cause, and
when such is the case it is for the jury to determine whether
that inference ought to be drawn. Tennant v. Peoria and
Pekin Union R. Co., 321 U. S. 29, 64 S. Ct. 409, 88 L. ed.
520 (1944); Moore v. Chesapeake & Ohio Railway Co., 340 |
U. S. 573, 71 S. Ct. 428, 95 L. ed. 547 (1951). Since the
right of action comes by a federal statute, under the
Supremacy Clause of the Federal Constitution, Article VI,

the evidence is such that, without , the credibility _
of the witnesses, the absence of negligence is the only —
reasonable conclusion, there is no issue for the jury.
Brady v. Southern R. Co., cited supra, .

uch is the rule in the judicial administration of New
Jersey’s negligence law, derived as it is from the common
is whether the trier of the facts could, on any reasonable
view of the evidence, rejecting all evidence and inferences
unfavorable to the plaintiff, find that the plaintiff had
established the facts essential to his asserted cause of
action. Is there any evidence which, if accepted and given
its fullest probative force, reasonably tends to sustain the
pleaded cause of action? Mere surmise or conjecture is
not enough. Sivek v. New Brunswick, 122 N. J. L. 197
(E. & A. 1939). This is the English common-law rule.

There is no tangible evidential basis for the inference
that the apparently discarded piece of air hose found
nearby was connected with the deceased’s operations. His
ä k was supervisory; but, conceding the possibility of a
sudden emergency, the wrench which it is

was an indispensable tool in the replacement of an air hose

was nowhere to be found; nor was there a lantern, the hour ;

being 8:20 P. M. And the deceased did not conform to the

established rule, for the worker’s own protection, that
when emergency repair work is to be done under such
circumstances, a signal shall be given to the engineman
and fireman. No such signal was given. In a word, there
was no reason whatever to anticipate the deceased’s pres-
ence in a place of danger when the train was put into
operation; quite the contrary.

Indeed, in the final analysis, the spevific ground of negli-
gence asserted on the brief is that it is shown by ‘‘uncontra-
dicted evidence’’ that ‘‘an interval of 15 to 20 minutes had
elapsed between the all-clear signal, followed by the air-
brake test, which took thirty seconds; and the actual start-
ing of the train by Hann, the defendant’s engineer;’’ that
‘no one was assigned to check up and take any steps to
ascertain if a change of status had occurred during that
15 to 20 minute interval during which no check-up or inves-
tigation had been made to prove it was safe to start the
train, as to whether or not the decedent or anyone else
was working at or about the train or between the cars,
and the ‘‘engineer started the train relying solely on an
all-clear signal which had been given to him 15 to 20 min-
utes earlier. 5

The Court's preargument examination of the record
revealed no ground whatever for the statement that be-
tween 15 to 20 minutes intervened between the giving of
the all-clear signal and the movement of the train; and on
the oral argument, when counsel was asked to point out
the evidential justification for this factual assertion, he
was unable to do so and then agreed that it had no basis
in the record. In ostensible support of this affirmation of
fact, the brief cites evidence tending to show that there
was an interval of 15 minutes between the time of the last
coupling’’ of cars until the time the train moved out of
the yard, started to move,” a radically different thing.
Thus, the basic factor in the charge of negligence inade on

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_2152%3A1. Public record. Not legal advice.