Petition for Writ of Certiorari — Burch v. Reading Co. (No. 886)

g Supreme Court of the United States

October Term, 1956.

No. 886

LUCILLE H. BURCH,

Petitioner,

v.

READING COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIROUIT.

B. Natuanret, Ricersr,

Szeymour I. Torx,

Barsara Ann Dorry,

Ricuter, Losp & Levy,

Counsel for Petitioner.

121 South Broad Sti et,

Philadelphia 7, Pa.

Taternational, 236 Chestnut St., Phila. 6, Pa.

INDEX.

Page

emennenss DRAB <a vooesc ve evedhvecwacg tes ne emesseds ss 1

JURISDICTION .. 2... e cece cee eee eee eee teen eee ee es 2

QUESTIONS PRESENTED ...... 2... 02020 eee cree cere e eee eees 2

es Deeeee GWU ow. ccc ces ccc cccccticsnccnvececes 3

STATEMENT OF THE CASE ..... 2.0.22 2c eee eee ee ence eeees 4

REASONS FOR GRANTING THE WRIT .......-.- 5-0-0 0 eee eee 6

Point I. In an F. E. L. A. Acion Evidence Susceptible of

the Inference That an Employee Had Negligently Been

Directed or Permitted to Do Work Beyond Her

Capacity Must Be Submitted to the Jury as Well as

the Theory Underlying It, and the Fact That Such

Testimony May Present Conflicting Inferences Also

Commands Submission to the Jury ...........-.++. 9

Point I]. Under the F. E, L. A. the Employer’s Absolute

Duty to Use Reasonable Care to Furnish a Reasonably

Safe Place to Work Includes the Duty of Antecedent

Inspection of That Place .............++02e+eeee- 14

Point III. Where There Is Evidence From Which a Jury

Can Infer the Cause of the Accident in Suit, Instruc-

tions Permitting a Fiading That Injuries Resulted

From a Mere Accident Are Erroneous ...........- 17

Point IV. A Jury Charge in an F. E. L. A. Case Which

Places Upon the Plaintiff the Burden of “Convincing”

the Jury of Negligence and Exonerates Defendant of

Liability in the Absence of That “Conviction” or “If

There Is Just a Doubt” in the Jury’s Mind Imposes

Upon Plaintiff a Prejudicial and Patently Erroneous

INDEX (Continued).

Point VA Jury Charge in an F. E. L. A. Case Which

Instructs That “. . . [the Jury] Should No More

Be Swayed by Sympathy for the Plaintiff Than for

the Widows and Orphans Who May Be Receiving

Dividends or Interest From [Defendant Railroad] and

Who May Need That Income for Themselves and for

Their Families” Is Highly Prejudicial and in and of

Itself Commands the Grant of a New ‘Trial if a Verdict

for Defendant Is Returned ............cccseeeeees

NE I Ab Sods hice adbccpeebsnnnscecepe%'ss.a

Judgment of the United States Court of Appeals for the

ee ee)

Page

TABLE OF CASES CITED.

Page

Beattie v. Elgin, Joliet & Eastern Railway Co., 217 F. 2d 863

eS TEES TEU TOUTE FET OT EET pebasccas 8, 17

Blair v. B. & O. R. R. Co., 323 U. S. 600, 65 S. Ct. 545 (1945) 6, 13

Boatright v. U. S., 105 F. 2d 737 (C. A. 8, 1939) .......... 8, 26

Botta v. Brunner, 42 N. J. Super. 95 (1956) .............. 24

Brock v. Gulf Mobile & Ohio Railroad Company, 270 S. W. 2d

es Uy UE KG Tk Ga Wh RETo Ss COAG choeescbaadacle 8, 17

Carpenter v. B. & O. R. Co., 109 F. 2d 375 (C. A. 6, 1940) .. 7,19

Cereste v. New York, New Haven & Hartford R. Co., 231

F, 2d 50 (C. A. 2, 1956), cert. denied 351 U. S. 95, 76

We PE TEMES SRA Ci ecVd eC end ca wa bobo kkk ood ecks 7,17

Chesapeake & Ohio Ry. Company v. Thomas, 198 F. 2d 783

(C. A. 4, 1952) cert. denied 344 U. S. 921, 73 S. Ct. 387

RE Sh bps dod cu nccat uae Nbek Cebaaceees cawakee cin 7,17

Chicago G. W. R. Co. v. Casura, 234 F. 2d 441 (C. A. 8

NE GN ANG AN Scnawidg CASARUA Camerceees raced cokes 8, 17

Chicago G. W. R. Co. v. Smith, 228 F. 2d 180 (C. A. 8, 1955) 8, 17

Comiskey v. P. R. R., 228 F. 2d 687 (C. A. 2, 1956) ........ 7,13

Cook v. U. S., 18 F. 2d 50 (C. A. 8, 1927) ................ 8, 26

Deen v. Gulf, Colorado and Santa Fe Railway Company, 275

S. W. 2d 529, cert. granted October 8, 1956 ............ 7,13

Futrelle v. Atlantic Coast Line R. R. Co., No. 782, decided

I MA A Wiis wih a Ha Sas WAAR ws awadiicnnc's cfs ke 6, 13

Hill Grocery Co. v. Wilson, 89 So. 2d 687 (1956) .......... 8, 24

Johnson v. Erie Railroad Co., 236 F. 2d 352 (C. A. 2, 1956) .. 7,23

Johnson et al. v. Macias, 193 F. 2d 475 (C. A. 5, ot eye 7,18

Kansas City, M. & O. Ry. Co. v. Estes, 228 S. W. 1087 (Tex.

EE CaN RCCKWG AR Gand bab abd was oc kb Nk ROR OITLA re hekak 19

Knapp v. Kinsey, 232 F. 2d 458 (C. A. 6, 1956), cert. denied

S52 U. S. G02, 77 S. Cr. 181 (1956) coo. ccc cc ccc ccccs 8, 26

Knight v. Allegheny County, 377 Pa. 502, 105 A. 2d 141 (1954) 8, 27

Larson v. Jo Ann Cab Corp., 209 F. 2d 929 (C. A. 2, 1954) ..7, 22, 23

Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740 (1946) .... 6,13

Lillie v. Thompson, 332 U. S. 459, 68 S. Ct. 140 (1947) .... 6,13

TABLE OF CASES CITED (Continued).

Page

Maher v. St. Louis & S. F. Ry. Co., 234 S. W. 1034 (St. Louis

Ct. of App., Mo., 1921) ....--.2-eee reece eee eeeeeeeee 19

McGuigan v. Southern Pacific Company, 247 P. 2d 415 (D. C.

of App. Ist Dist., Cal., 1952) ....-.+--+e+eeereeeeees 13

Myers v. Reading Company, 331 U. S. 477, 67 S. Ct. 1334

(147) .nccccscccccccesccccnccccceccucserscssaneres 6, 14

Narcisco v. Mauch Chunk swp., 369 Pa. 549, 87 A. 2d 233

(1952) 2.2 ccccecececceccnceceteceresenersceesenenes 8, 27

Nelson v. Lee, 32 So. 2d 22 (Ala., 1947) ...--.-++-eeeeeeee 8, 24

Nuttall v. Reading Company, 235 F. 2d 546 (C. A. 3, 1956) .. 7,13

Pennsylvania R. Co. v. Ribkee, 174 N. E. 427 (Indiana, 1930) 19

Quercia v. U. S., 289 U. S. 466, 53 S. Ct. 698 (1933) .......- 6, 26

Robak v. P. R. R., 178 F. 2d 485 (C. A. 3, 1949) .....-.--- 7,13

Robinson v. Pennsylvania R. Co., 214 F. 2d 798 (C. A. 3,

1954). cccvevccnccccccncccccncccescscesseaesesers 7,26

Rogers v. Missouri Pacific Railroad Co., 352 U. S. 500, 77 S. Ct.

rVX 2 6.7) ee 6, 14

Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635

(IDIA) 2... ccrcececenncccccecsenccseccesceseceenees 20

Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45, 73 A. 2d 387

GC. |) ee 8, 24

Shaw v. Atlantic Coast Line R. R. Co., No. 743, decided April

1, 1957 ...cccccccccccccccncccnccccccscccescocescess 6, 13

Sperber v. Connecticut Mut. Life Ins. Co., 140 F. 2d 2 (C. A.

8, 1944), cert. denied 321 U. S. 798, 64 S. Ct. 939 (1944) 8, 26

Stewart v. B. & O. R. R. Company, 137 F. 2d 527 (C. A. 2,

ES ROO ae OTST Tree 7,13

Stone v. N. Y. C. and St. L. R. R., 344 U. S. 407, 73 S. Ct. 358

Se nn eked a gun aha Sees henSS ANAS nasndee aA 6,13

Stoneking v. United States, 232 F. 2d 385 (C. A. 8, 1956),

cert. denied 352 U. S. 835, 77 S. '&. 54 (1956) .......... 8, 26

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

PROGR sisi Sccks ave cisies <huan ns vkGOogezaai <oees 6, 14

Terminal R. Ass’n. of St. Louis v. Fitzjohn, 165 F. 2d 473

(C. A. 8, 1948) . 02. e eee e eee e eee ee eee eee ete renee 8, 17

TABLE OF CASES CITED (Continued).

Page

Texas & Pacific Railway Company v. Thompson, 232 F. 2d 313

(C. A. 5, 1956), cert. granted on October 22, 1956, No. 321 7,13

Virginian Railway Co. v. Armentrout, 166 F. 2d 400 (C. A. 4,

1Q4B) oc cece cccccccccccecececcnccccececescsseseees 7,27

Waddell v. Chicago & E. I. R. Co., 142 F. 2d 309 (C. A. 7,

1944), cert. denied 323 U. S. 732, 65 S. Ct. 69 (1944) .. 8,17

Webb v. Illinois Central R. Co., 352 U. S. —, 77 S. Ct. 451

(1957) 2... sec ee cece cece ee ceneceneenecenceeneeees 6, 14, 15

Wetterer v. The Atchison, Topeka & Santa Fe Ry. Co., 277 Il.

App. 275 (1934), cert. den. 295 U. S. 754, 55 S. Ct. 835

GOONS fo ca civscowasneanesssiuancrsventesesucuwares 18

Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413 (1949) .. 6,20

Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744 (C. A.

S IDGL) ccavcnccvccccccccsccvecsesessunecesesecs 7, 13, 17

TABLE OF STATUTES CITED.

Page

Act of June 25, 1948, c. 625, 62 Stat. 928, 28 U. S. C. Sec.

1254(1) 2... cecccecccccecnenceenececeseseceseeeecees 2

Federal Employers’ Liability Act, 35 Stat. 65, as amended, 36

Stat. 291, 53 Stat. 1404, 45 U. S. C. § 51 et seq. ......-.-- 2, 3,9

IN THE

Supreme Court of the United States.

October Term, 1956.

No.

LUCILLE H. BURCH,

Petitioner,

v.

READING COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT.

To the Honorable Chief Justice, and the Associate Justices,

of the Supreme Court of the United States:

Lucille H. Burch, by her attorneys, respectfully peti-

tions that a Writ of Certiorari issue to review the judg-

ment cf the United States Court of Appeals for the Third

Cireuit entered on January 8, 1957.

OPINIONS BELOW.

The opinion of the Court of Appeals is to be found at

9240 F. 2d 574 (C. A. 3, 1956). The opinion of the District

Court, with which the majority of the Court of Appeals was

“in full accord” is to be found at 140 F. Supp. 136 (D. C.

E. D. Pa., 1956). This is the final judgment of the United

States Court of Appeals for the Third Circuit, where judg-

ment was entered for the respondent-defendant affirming

the judgment of the United States District Court for the

Eastern District of Pennsylvania, where judgment was en-

tered for respondent-defendant on the verdict. Judge

Kalodner dissented in the Court of Appeals.

2 Jurisdiction—Questions Presented

JURISDICTION.

The judgment of the United States Court of Appeals

for the Third Circuit was entered on January 8, 1957.

The jurisdiction of this Court is invoked under ec. 646, Act of

June 25, 1948, 62 Stat. 928, 28 U. S. C. Sec. 1254 (1).

QUESTIONS PRESENTED.

I. In an action under the Federal Employers’ Liability

Act' is it not error for the Court of Appeals to affirm the

action of a trial judge in taking from the jury’s considera-

tion competent evidence from which the jury could find re-

spondent negligent in directing that petitioner do work be-

yond her capacity solely on the ground that such evidence

presented conflicting inferences?

II. Is not the Court of Appeals in error in affirming

the trial judge’s charge, the substance of which was that an

employer under the F. E. L. A. has no antecedent duty of

inspecting premises where it knows or should know that

one of its employees is required to perform her duties?

III. Is it not error for the Court of Appeals to affirm

a jury instruction that as a matter of law if the petitioner’s

injury resulted from an accidental slip on a few pebbles,

there would be no liability when those very pebbles pre-

sented evidence from which a jury could have found an

unsafe place to work?

IV. Is it not error for the Court of Appeals to affirm

the trial judge’s submission to the jury of the question of

whether the accident in suit occurred by reason of ‘‘sheer

and unavoidable accident’’ where the submission of that

issue was unrelated to a record containing admitted facts

1. 35 Stat. 65, as amended, 36 Stat. 291, 53 Stat. 1404, 45

U. S. C. § 51 et. seg.

The Statute Involved 3

that indicated negligence and nothing to suggest an act of

God?

V. Is not the Court of Appeals in error in affirming

a jury charge regarding plaintiff’s burden of proof as to

negligence in an F. E. L. A. action which variously in-

structed the jury that the plaintiff’s burden of proof was

one of the ‘‘big points’’ in the case; that a verdict for de-

fendant must be returned unless the jury had a ‘‘convic-

tion’’ as to negligence; that it is plaintiff’s burden ‘‘to con-

vince [the jury] that there was . . . negligence’’ and that

‘If there is just a doubt in your mind, you must bring in a

verdict for the defendant . . .’’?

VI. Is not the Court of Appeals in error in affirming a

jury instruction that the jury ‘‘ . . . should no more be

swayed by sympathy for the plaintiff than for the widows

and orphans who may be receiving dividends or interest

from [respondent railroad] and who may need that income

for themselves and for their families’’?

THE STATUTE INVOLVED.

The Federal Employers’ Liability Act, 45 U.S. C. A.,

35 Stat. 65, as amended, 36 Stat. 291, 53 Stat. 1404, § 51

et seq. the pertinent portion of which reads as follows:

‘‘Every common carrier by railroad while engaging

in commerce between any of the several States . . . ,

shall be liable in damages to any person suffering in-

juries while he is employed by such carrier in such

commerce, . . . for such injury . . . resulting in

whole or in part from the negligence of any of the

officers, agents or employees of such carrier, or by rea-

son of any defect or insufficiency, due to its negligence,

in its ears, engines, appliances, machinery, track, road-

bed, works, boats, wharves, or other equipment.’’

Statement of the Case

STATEMENT OF THE CASE.

This is a suit brought under the above statute for in-

juries sustained by petitioner on November 27, 1950, while

in the employ of respondent.

Petitioner had been employed by respondent in a track

gang for six years prior to the date of the accident (44a,

46a). On the day in question, her foreman, Mr. DiLuzio,

had sent her gang to repair Scott’s Lane grade crossing

in Philadephia (15a, 219a). Respondent’s track bisects

Scott’s Lane. The road came up a hill with a fifteen degree

grade immediately beyond the crossing to the south. This

is a very steep grade (128a). The surface of Scott’s Lane

was badly worn and full of pebbles all the way from the

crossing down to the bottom of the hill (25a, 136a, 137a).

It was pitted with holes and many pebbles which had pulled

loose because the asphalt surface or binding material which

was supposed to hold the pebbles in place had worn away

(25a, 78a, 124a, 127a, 136a, 137a). Ii was difficult to get a

decent footing when walking on this hill and it was very

slippery due to the loose pebbles (127a, 128a). This whole

section of the road, including the point at which petitioner

was injured, was to be completely repaved by the City of

Philadelphia (133a, 134a).

On the day in question, petitioner had been directed

by her foreman to carry dirt in a three-foot shovel from

a pile lying east of the roadway and south of the crossing

and she was to dump it into a hole in the crossing (15a,

16a, 27a). While walking diagonally down across Scott’s

Lane to the dirt pile to get another shovelful, she fell

nd suffered the injuries complained of. As she fell her

feet rolled under her. She felt pebbles under her shoes

(55a). The place in question was surrounded with pebbles

aud those pebbles caused her to fall (63a-67a). Her fore-

man admitted that he found the skid mark of her shoe

right after the accident had happened and saw twenty or

thirty pebbles around the immediate area (221a, 222a). The

Statement of the Case 5

day was cold and the streets were dry and free of ice and

snow (15a, 226a). There was thus no condition other than

the loose pebbles which could have contributed to the acci-

dent in suit.

R. W. Morrison, respondent’s track supervisor, ad-

mitted that he had issued an order to the track foreman

to keep female employees out of sight so that they would

not be visible to respondent’s Board of Directors who would

be going past on trains (146a, 148a). Morrison admitted

that he had directed that they keep the track cleaned up,

in good shape and free of debris. Another of Morrison’s

orders was to the effect that women were to be made to

work as hard as men and render the same services as

men (161a-162a). This was respondent’s policy. Other

evidence established that any women who complained that

the work was too hard were to be laid off (157a, 158a, 162a).

All of Morrison’s testimony and underlying exhibits were

stricken by the trial court and the jury was instructed to

disregard it (291a, 321a, 324a).

The aforementioned DiLuzio admitted that he had an

order to make the women work as hard as the men but

that he tried to circumvent the order because he knew that

women were not able to do this kind of work, and that he

tried to act ‘‘human’’ and gave them lighter jobs when he

could (224a, 227a-228a). Notwithstanding this, on the day

in question DiLuzio assigned petitioner the job of carrying

soil in a shovel up and down the hill in question (228a,

229a).

As a result of the accident in suit, the petitioner

suffered a severely fractured ankle, atrophy of the bone,

arthritis of the joint with narrowing of the articular spaces

where the various bones of the ankle are made up and a

thickening of the outer surface. The site itself represents

in its entirety a completely abnormal joint. The condi-

tion is permanent (86a, 87a). There was also considerable

soft tissue damage, traumatic arthritis of the left ankle

and a foot drop as a result of nerve damage (95a).

Reasons for Granting the Writ

The case was submittel to the jury after a charge by

the trial judge which was fraught with error as indicated

in the ‘‘Argument”’ infra. Appropriate exceptions were

taken by the petitioner to various portions of the charge

and petitioner in addition moved for the withdrawal of a

juror because of the error and unfairness of it (346a-353a,

356a-357a). The jury returned a verdict for the defendant.

Petitioner thereafter filed a motion for a new trial

(371a-375a) which was subsequently denied by the trial

court in an opinion reported at 140 F. Supp. 136 (376a-

412a). Petitioner appealed from the judgment of the Dis-

trict Court and the judgment was affirmed by the United

States Court of Appeals for the Third Circuit on January

S, 1957, by a divided court. Circuit Judge Maris was joined

in the affirmance by District Judge Wortendyke. Circuit

Judge Kalodner dissented. This petition for certiorari

follows.

REASONS FOR GRANTING THE WRIT.

For the purpose of clarity, a statement of reasons for

granting the writ is here set forth. These are expanded in

the argument following this resumé.

1. This decision is in conflict with the decisions of this

Court in Quercia v. United States, 289 U. S. 466, 53 S. Ct.

698 (1933); Blair v. B. € O. R. R. Co., 323 U. S. 600, 65

S. Ct. 545 (1945) ; Lavender v. Kurn, 327 U. 8. 645, 66 S. Ct.

740 (1946); Tennant v. Peoria é P. U. Ry. Co., 321 U. 8.

29, 64 S. Ct. 409 (1944); Myers v. Reading Company, 331

j. S. 477, 67 S. Ct. 1334 (1947); Lillie v. Thompson, 332

S. 459, 68 S. Ct. 140 (1947); Wilkerson v. McCarthy

t al., 336 U. S. 53, 69 S. Ct. 413 (1949) ; Stone v. N. Y. C.

& St. L. RR. 344 U. 8. 407, 73 St. Ct. 358 (1953) ; Rogers

v. Missouri Pacific Railroad Co., 352 U. 8. 500, 77 S. Ct.

443 (1957) ; Webb v. Illinois Central Railroad Co., 352 U.S.

—, 77 S. Ct. 451 (1957) ; Shaw v. Atlantic Coas! Line R. R.

Co. .. No. 743 and Futrelle v. Atlantic Coast Line R. R. Co.,

No. 782, both decided April 1, 1957.

Reasons for Granting the Writ 7

2. One of the questions presented by this case is now

before this Court in Tezas ¢ Pacific Railway Company v.

Thompson, 232 F. 2d 313 (C. A. 5, 1956), cert. granted

on October 22, 1956, No. 321, and Deen v. Gulf, Colorado

and Santa Fe Railway Company, 275 S. W. 2d 529, cert.

granted October 8, 1956, No. 199 both set for argument the

week of April 1, 1957.

3. This decision is in conflict with the decisions of the

United States Court of Appeals for the Second Circuit in

Stewart v. B. d O. R. R. Company, 137 F. 2d 527 (C. A. 2,

1943) ; Comiskey v. P. R. R., 228 F. 2d 687 (C. A. 2, 1956) ;

Cereste v. New York, New Haven & Hartford R., Co., 231

F. 2d 50 (C. A. 2, 1956), cert. denied 351 U. S. 95, 76 S. Ct.

848 (1956); Larson v. Jo Ann Cab Corp., 209 F. 2d 929

(C. A. 2, 1954); Johnson v. Erie Railroad Co., 236 F. 2d

352 (C. A. 2, 1956).

4. This decision is in conflict with the decisions of the

same Court of Appeals in Nuttall v. Reading Company, 235

F. 2d 546 (C. A. 3, 1956); Robak v. P. R. R., 178 F. 2d 485

(C. A. 3, 1949) ; Robinson v. Pennsylvania R. Co., 214 F. 2d

798 (C. A. 3, 1954).

5. This decision is in conflict with the decisions of the

United States Court of Appeals for the Fourth Circuit in

Chesapeake & Ohio Ry. Company v. Thomas, 198 F. 2d 783

(C. A. 4, 1952) cert. denied 344 U. S. 921, 73 S. Ct. 387

(1953) ; Virginian Rwy. Co. v. Armentrout, 166 F. 2d 400

(C. A. 4, 1948).

6. This decision is in conflict with the decisions of the

United States Court of Appeals for the Fifth Cireuit in

Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744

(C. A. 5, 1951); Johnson et al. v. Macias, 193 F. 2d 475

(C. A. 5, 1952).

7. This decision is in conflict with the decisions of the

United States Court of Appeals for the Sixth Circuit in

Carpenter v. B. € O. R. Co., 109 F. 2d 375 (C. A. 6, 1940) ;

8 Reasons for Granting the Writ

Knapp v. Kinsey, 232 F. 2d 458 (C. A. 6, 1956), cert. de-

nied 352 U. S. 892, 77 S. Ct. 131 (1956).

8. This decision is in conflict with the decisions of the

United States Court of Appeals for the Seventh Circuit

in Waddell v. Chicago & E. I. R. Co., 142 F. 2d 309 (C. A.

7, 1944) cert. denied 323 U. S. 732, 65 S. Ct. 69 (1944);

Beattie v. Elgin, Joliet € Eastern Railway Co., 217 F. 2d

863 (C. A. 7, 1954).

9. This decision is in conflict with the decisions of the

United States Court of Appeals for the Eighth Circuit in

Terminal R. Ass’n. of St. Louis v. Fitzjohn, 165 F. 2d 473

(C. A. 8, 1948); Chicago G. W. R. Co. v. Smith, 228 F. 2d

180 (C. A. 8, 1955); Chicago G. W. R. Co. v. Casura, 234

F. 2d 441 (C. A. 8, 1956) ; Sperber v. Connecticut Mut. Life

Ins. Co., 140 F. 2d 2 (C. A. 8, 1944), cert. denied 321 U. S.

798, 64 S. Ct. 939 (1944) ; Cook v. United States, 18 F. 2d

50 (C. A. 8, 1927); Boatright v. United States, 105 F. 2d

737 (C. A. 8, 1939) ; Stoneking v. United States, 232 F. 2d

385 (C. A. 8, 1956), cert. denied 352 U. S. 835, 77 S. Ct. 54

(1956).

10. This decision is in conflict with the decisions of the

State Courts of last resort in Brock v. Gulf Mobile & Ohio

P-‘lroad Company, 270 S. W. 2d 827 (Mo., 1954) ; Nelson

v. Lee, 32 So. 2d 22 (Ala., 1947) ; Hill Grocery Co. v. Wilson,

89 So. 2d 687 (Ala., 1956); Se-Ling Hosiery, Inc. v. Mar-

gulies, 364 Pa. 45, 73 A. 2d 387 (1950) ; Narcisco v. Mauch

Chunk Township, 369 Pa. 549, 87 A. 2d 233 (1952) ; Knight

v. Allegheny County, 377 Pa. 502, 105 A. 2d, 141 (1954).

11. This decision, unless corrected, will inevitably and

rapidly generate a flood of additional litigation and appeals

on aspects of the Federal Employers’ Liability Act which

are common to most such cases and equally common to a

vast number of cases in general civil litigation.

Reasons for Granting the Writ 9

Point I.

In an F. E. L. A. Action Evidence Susceptible of the In-

ference That an Employee Had Negligentiy Been Di-

rected or Permitted to Do Work Beyond Her Capacity

Must Be Submitted to the Jury as Well as the Theory

Underlying It, and the Fact That Such Testimony May

Present Conflicting Inferences Also Commands Sub-

mission to the Jury.

This Petition unavoidably raises a number of critical

issues of law, the resolution of which will have extremely

widespread ramifications into the administration of the

Federal Employers’ Liability Act, 35 Stat. 65, as amended,

36 Stat. 291, 53 Stat. 1404, 45 U. S. C. § 51 et seq. and vital

areas of general civil litigation.

In the case at bar, the majority of the Court of Appeals

below did not deal with all of them in its opinion but that

Court did however find itself ‘‘in full accord’’* with the

holding of the trial judge (at page 2a). It is therefore

clear that the source of the errors which must be corrected

by a grant of this Petition and a reversal of the judgment

below can fairly be said to be in the Court of Appeals for

the Third Circuit.

This was a simple F. E. L. A. case. As a result of the

errors below which are the product of extraordinary indif-

ference to the integrity and force of prevailing rules of

law, it has become a grotesque cause.

Petitioner’s case was tried on the double theory that:

(1) respondent had negligently failed to furnish her with

a safe place to work and/or (2) had negligently directed

or permitted her to do work beyond her capacity. Noth-

ing more than that was involved. We shall shortly discuss

the manner in which the trial court erroneously emasculated

the ‘‘safe place to work’’ issue. As to the other issue, that

2. All subsequent references to the opinion of the Court of

Appeals are to the opinion as paginated in the “Appendix”, infra.

10 Reasons for Granting the Writ

court simply tore it bodily out of the case. The rationale

on which it did so finds no justification in the record and,

most remarkably, the very language with which it seeks to

justify that excision propounds a rule of law which is in

absolute conflict with a large and until now uniform body

of rulings on the point. In holding itself in ‘‘full accord’’

with the trial judge the Third Circuit has isolated and

set itself at war with this Court, and other Courts of Ap-

peals. The courts below stand alone in the views they have

taken of the issues here.

At the trial petitioner proved in support of this sec-

ond theory of liability that each woman was instructed

that she must do the same hard work as men; that com-

plaints had been made by female employees that the work

was too hard; that respondent was on notice that this work

was too hard for women and had taken the position that

since there were such complaints, the female employees

would be held responsible (155a, 156a, 157a, 158a, 161a, 162a,

417a-419a). In Exhibit 10 (419a), specifically addressed

to petitioner, respondent stated that another female laborer

had made a complaint about the work being too arduous

and that since petitioner had not taken exception thereto,

she was considered by the respondent as likewise making

the same complaint.

There was thus before the jury evidence ir the nature

of an admission by respondent that this work was beyond

petitioner’s capacity. The author of the exhibit, Morrison,

was respondent’s track supervisor under whom petitioner

worked. On his direct examination he testified (158a) :

““Q, Now, having had these notices brought to your

attention, was there or was there not and had there

or had there not been substantial discussion between

the railroad company, through you, and these women

laborers in regard to the duties that were being im-

posed upon them as laborers?

A. Not upon the duties being imposed upon them.

Upon the amount of work they were turning out.

Reasons for Granting the Writ 11

Q. And whether they could do that kind of work?

A. There was a discussion about that.

Q. Whether they could do that kind of work; is

that right?

A. Yes, sir.’’

On cross-examination he testified (161a) :

‘«*Q. Were they expected to do the same kind of

work when they were hired that men laborers were

expected to do?’

A. That is my understanding, that they were.

By Mr. Brown:

Q. During the years from 1944 to 1950 was there

ever any instruction given by the management of the

company that women track laborers were not to do the

same kind of work as male track laborers?

A. No, sir.

Q. Did they continue during that time from 1944

to 1950 to do the same work as male laborers, with the

approval of the management?

A. Yes, sir, the management approved the arrange-

ment.”’

2 s *

‘<Q. What, if you know, was the policy of the man-

agement as it came down to you with respect to

whether track laborers should be doing heavy work as

opposed to picking up papers?

‘‘A. It is the policy of the management to get as

much heavy work done as we can, but they recognize,

in fact, that there is a certain amount of light duties

that must be taken care of also, but primarily it is to

do the heavy work.’’

The court struck out all of Morrison’s testimony and

underlying exhibits and so charged the jury (321a, 324a).

In its opinion the trial court denied that it ruled as a

matter of law that petitioner could not recover on this

12 Reasons for Granting the Writ

theory, and rested its denial on the assertion that ‘‘The

court did not use any such language in the charge . . .”’

(383a). The court also claimed that we had neither re-

quested to charge on the theory nor specifically pointed

out to the court its failure so to charge (383a-384a).

This was not so. We raised it as early as the pre-

trial conference (7a). It was suggested to the court during

trial (242a) and the court recognized our position (243a).

After striking it from the case, the court granted us an

exception (291a). The record is therefore protected.

This is the heart of the trial court’s rationalization of

its ruling (386a-387a) :

‘‘Since plaintiff was unsuccessful in showing any

admission by the company, or by Mr. Morrison per-

sonally, or any other evidence that plaintiff was doing

any work in excess of her physical ability or that plain-

tiff had ever made a claim that she had been asked to

do work which was too difficult for her, and since con-

sideration of this testimony and these memoranda had

emphasized conflicting inferences that might be drawn

from the language of four exhibits (P-9, P-10, P-12

and P-13), [footnote] offered by plaintiff, the court

granted defendant’s motion to strike the testimony of

Mr. Morrison just before the closing speeches [foot-

note] and advised the jury to disregard the testimony

of Mr. Morrison at the beginning of the charge [foot-

note]. . . .’? (Emphasis supplied.)

On this unambiguous statement the court took from

petitioner her right to trial by jury on the issue and in

doing so flatly refused to adhere to clear law on the sub-

ject. That is error enough. Even more remarkable is that

the Court of Appeals, having such error brought directly

to its attention, refused to treat it at all in its opinion ex-

cept to find itself ‘‘in full accord’’ with the trial judge.

The effect of the decisions below is to withhold from

the jury’s consideration a theory of liability under the

Reasons for Granting the Writ 13

F. E. L. A. well bottomed in evidence and authenticated

by clear, authoritative decisional law.

This Court directly acknowledged the validity of the

theory in Stone v. N. Y. C. and St. L. R. R., 344 U.S. 407,

73 S. Ct. 358 (1953); Blair v. B. € O. R. R. Co., 323 U. S.

600, 65 S. Ct. 545 (1945), and can fairly be said to have done

so in Lillie v. Thompson, 332 U.S. 459, 68 S. Ct. 140 (1947).

The question is squarely before this Court now in Texas

and Pacific Railway Company v. Thomson, 232 F. 2d 313

(C. A. 5, 1956), cert. granted October 22, 1956, No. 321,

and Deen v. Gulf, Colorado and Santa Fe Railway Com-

pany, 275 S. W. 2d 529, cert. granted October 8, 1956,

No. 199, both set for argument in the week beginning

April 1, 1957.

The decisions below are also in conflict with the law

in the Second Circuit: Stewart v. B. d O. R. R. Co., 137

F. 2d 527 (C. A. 2, 1943); Comiskey v. P. R. R., 228 F. 2d

687 (C. A. 2, 1956); with the law previously announced by

the Court of Appeals below: Nuttall v. Reading Company,

235 F’. 2d 546 (C. A. 3, 1956); Robak v. P. R. R., 178 F. 2d

485 (C. A. 3, 1949); and with the law in the Fifth Circuit:

Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744

(C. A. 5, 1951). y

See also McGuigan v. Southern Pacific Company, 247

P. 2d 415 (D. C. of App. 1st Dist., Cal., 1952).

The error of the courts below in refusing to acknowl-

edge the operation of this theory of liability in the case was

of a piece with their excision of the evidence in question.

Under F. E. L. A. decisional law there was an evidentiary

basis in this record for a jury’s finding of negligence on

the theory claimed. Lavender v. Kurn, 327 U. 8S. 645, 66

S. Ct. 740 (1946). The two theories of liability in question

were closely interwoven, and it was clear that respondent’s

negligence could have been considered on one thecry or

the other, or both. In those circumstances the emp.oyer’s

negligence may be determined by viewing its conduct as

awhole. Blair v. B. d O. R. R. Co., supra. These ases,

14 Reasons for Granting the Writ

we respectfully submit, completely substantiate our view,

but if there were any lingering doubts they have been dis-

pelled by the recent holdings in this Court in Rogers v.

Missouri Pacific Railroad Co., 352 U. 8. 500, 77 S. Ct. 443

(1957) ; Webb v. Illinois Central Railroad Co., 352 U.S. —,

77 S. Ot. 451 (1957) ; Shaw v. Atlantic Coast Line R. R. Co.,

No. 743 and Futrelle v. Atlantic Coast Line R. R. Co., No.

782, both decided April 1, 1957.

As we had earlier indicated, the very language of the

trial court used to justify the excision is in total conflict

with the great body of law on the point. Whereas it found,

and the Court of Appeals was in full accord with the find-

ing, that ‘conflicting inferences”’ arose from the testimony

and memoranda in question and therefore struck the testi-

mony from the case, that is exactly what should not have

been done. In this posture, the matter had to be for the

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

S. Ct. 409 (1944); Myers v. Reading Company, 331 U. S.

477, 67 S. Ct. 1334 (1947).

Point II.

Under the F. E. L. A. the Employer’s Absolute Duty to Use

Reasonable Care to Furnish a Reasonably Safe Place

to Work Includes the Duty of Antecedent Inspection of

That Place.

The Trial Court charged (330a) :

‘‘ Even if you believe plaintiff’s position that there

were so many pebbles that an unsafe condition existed,

you must consider, among other things, whether the de-

fendant’s foreman, Mr. DiLuzio, who was the defend-

ant’s chief representative on the scene, should have

had notice of this condition, in view of the fact that

only an hour, approximately, elapsed between the time

work started at this location and the time of the acci-

dent and the fact that plaintiff herself admitted that

Reasons for Granting the Writ 15

all the other workmen, except ihe man loosening the

dirt in the pile of dirt for her, were on the other side

of the railroad track.

‘You must decide whether this condition existed

long enough so that the defendant, under all the cir-

cumstances, could be said to have failed to have used

reasonable care in not removing the pebbles by sweep-

ing or otherwise.’’

The effect of this instruction was to leave the jury

with the understanding that respondent could lawfully

order or permit its crew to begin working immediately

upon arrival at the place in question regardless of its con-

dition, and that the employer would thereafter have a rea-

sonable time to inspect it to determine whether it was rea-

sonably safe. If this were the law, the doctrine of safe

place to work would be words stripped of substance. It is

not the law.

In Webb v. IWinois Central R. Co., 352 U. S. —, 77

S. Ct. 451 (1957) decided in this Court on February 25,

1957, petitioner slipped and fell over a clinker which was

imbedded in the roadbed of the railroad. The holding

there necessarily assumes that liability flowed from re-

spondent railroad’s breach of its duty to make an anteced-

ent inspection of the place where its employee was injured.

The Court there said:

‘‘As the jury might find that the clinker was in the

ballast used in the repair work, so also the jury might

find, from the fact that it was in the roadbed for three

weeks, that inspection was not properly made. There

was evidence from which it could have been found that

the clinker was not discovered either by the foreman

in semiweekly inspections of the location, made in part

to discover and remove hazards to workmen, or by a

track inspector and a track supervisor making less

frequent inspections. It was for the jury to weigh

16 Reasons for Granting the Writ

the evidence and to decide whether or not the inspec-

tions satisfied respondent’s duty to provide the peti-

tioner with a safe place to work.”’

The ‘‘inspection’’ referred to necessarily means an

inspection antecedent to the employee’s working in the place

in question.

The charge on the point in question (330a), of course,

means that railroads may furnish- the! is provide at the

ontset—uasafe places to work to their employees, and they

thereafter have some unspecified period of time within

which they may make an inspection to determine and cor-

rect the unsafe condition. This would simply make a

mockery of the safe place to work doctrine.

Since the employer’s duty is to furnish a safe place to

work, directing or permitting an employee to enter an

unsafe place to work such as here is palpably the breach of

that duty. It is negligence. What in effect has been done

by the courts below is to destroy the absolute quality of the

duty and instead make of it a spurious duty coming into

play at some indefinite time after the employee has arrived

at the scene. There is thus created a hiatus in which in-

jury may result from the employer’s negligence—failing

to furnish a safe place to work—and yet the employer will

be insulated from liability on the claim that it did not have

a reasonable time after furnishing the unsafe place to

discover its condition.

Not to correct the error below would generate a rash

of additional litigation in all such cases, for defendants

would always claim that even though admittedly they fur-

nished an unsafe place to work, they did not have a reason-

able time after the employee had been placed in those cir-

cumstances in which to discover the unsafe quality of the

area. It is an impossible contention because it posits a

breach of a duty which is by definition negligence and yet

claims that breach is not necessarily negligence—a bold con-

tradiction in terms. This is the embarrassing logic of the

Reasons for Granting the Writ 17

error below. If the doctrine is to have any meaning at all,

it must subsume the duty of the employer to make an an-

tecedent inspection.

What is urgently needed now and what only this Court

can give with the full force of its authority is a clear re-

statement laying down the duty of antecedent inspection.

Only thus will such potential litigation be smothered.

Cases in other Courts of Appeals demonstrate the law

to be other than that suggested by the erroneous rulings

below. These erroneous decisions below are thus in conflict

with the law in the Second Circuit: Cereste v. New York,

New Haven & Hartford R. Co., 231 F. 2d 50 (C. A. 2, 1956),

cert. denied 351 U. 8. 95, 76 S. Ct. 848 (1956) ; with the law

in the Fourth Circuit: Chesapeake & Ohio Ry. Co. v.

Thomas, 198 F. 2d 783 (C. A. 4, 1952), cert. denied 344 77. S.

921, 73 S. Ct. 387 (1953); Williams v. Atlantic Coast Line

R. Co., 190 F. 2d 744 (C. A. 5, 1951); with the law in the

Seventh Circuit: Waddell v. Chicago & E. I. R. Co., 142 F.

2d 309 (C. A. 7, 1944), cert. denied 323 U. S. 732, 65 S. Ct. 69

(1944) ; Beattie v. Elgin, Joliet and Eastern Railway Co.,

217 F. 2d 863 (C. A. 7, 1954); with the law in the Eighth

Cireuit: Terminal R. Ass’n of St. Louis v. Fitejohn, 165 F.

2d 473 (C. A. 8, 1948) ; Chicago G. W. R. Co. v. Smith, 228

F. 2d 180 (C. A. 8, 1955); Chicago G. W. R. Co. v. Casura,

234 F’. 2d 441 (C. A. 8, 1956).

See also: Brock v. Gulf, Mobile & Ohio Railroad Com-

pany, 270 S. W. 2d 827 (Mo., 1954).

Point ITI.

Where There Is Evidence From Which a Jury Can Infer

the Cause of the Accident in Suit, Instructions Permit-

ting a Finding That Injuries Resulted From a Mere

Accident Are Erroneous.

The trial court charged:

. . If you find that the injury resulted from an

accidental slip on one of a few pebbles, neither the de-

ec

Reasons for Granting the Writ

fendant nor the plaintiff could be said to be negligent,

and you must find a verdict for the defendant, of course.

The railroad isn’t responsible for accidents. They

might happen anywhere.’’ (330a)

To charge thus in the face of this record where the

reasonable inference can be drawn that petitioner slipped

as a result of the presence of pebbles on the road surface is

sheer error. Such an instruction would permit the jury to

make a finding that had no basis in law or in fact.

A large number of cases have laid down this general

principle of law with which the decisions below are now in

conflict.

In Wetterer v. The Atchison, Topeka @& Santa Fe Ry.

Co., 277 Ill. App. 275 (1934), cert. den. 295 U. S. 754, 55 S.

Ct. 835 (1935), the defendant asked the Court to charge as

follows at 298:

‘*The Court instructs you that the fact that if you

believe from the evidence the injury complained of by

the plaintiff was the result of a mere accident, you

must find the defendant not guilty.’’

The court held that it would have been error so to charge.

One may not charge in the abstract. The facts of a case

must be tied in with the allegations and proof. The jury

must give due consideration to the facts in the case and

decide whether under all the evidence there was or was not

negligence. -1s the Wetterer case points out, this instruc-

tion on mere accident is subject to the criticism that it omits

the question of negligence which may have caused the ac-

cident. The question of negligence must be incorporated

in the specific point. This the court below did not do in

this case as it did not in Wetterer.

In Johnson et al. v. Macias, 193 F. 2d 475 (C. A. 5,

1952), the plaintiff while on defendant’s premises was in-

jured when struck by flying fragments of a metal pulley

which disintegrated while revolving at a high speed. The

ee,

Reasons for Granting the Writ 19

court affirmed a verdict for the plaintiff and held that the

trial judge properly refused to charge on the subject of

‘‘ynavoidable accident’’. Said the Court at 479:

‘*The trial court did not err in refusing to give a

charge on ‘unavoidable accident’. An ‘unavoidable’

accident is one which is not occasioned in any degree,

directly or remotely, by lack of due care. If the injury

complained of could have been prevented by the exer-

cise of reasonable prudence, it would not be the result

of ‘unavoidable’ accident. There is no evidence here

tending to show that plaintiff’s injuries resulted from

any cause other than negligence on the part of some one.

The issue of unavoidable accident is therefore not pre-

sented. Magnolia Coca Cola Bottling Co. v. Jordan,

124 Tex. 347, 78 S. W. 2d 944, 97 A. L. R. 1513; Dallas

Terminal Co. v. Darden, Tex. Com. App., 38 S. W. 2d

777. Finding no prejudicial error, the judgment is

Affirmed.’’ (Emphasis ours.)

In Maher v. St. Louis € 8. F. Ry Co., 234 8. W. 1034

(St. Louis Ct. of App., Mo., 1921), the court held that the

trial judge properly refused to instruct the jury “‘. . . that

if the injury received was caused by accident, mischance

or misadventure, and without the negligence of either plain-

tiff or defendant, plaintiff was not entitled to recover’’ (at

1037). The point as submitted failed to tie into the factual

issues in the case. See also Kansas City, M. dé O. Ry. Co. v.

Estes, 228 S. W. 1087 (Tex. 1921) and Pennsylvania R. Co.

v. Ribkee, 174 N. E. 427 (Indiana, 1930).

Indeed, we might note that respondent had not pleaded

in this case that this was a ‘‘mere accident’? or an

‘“‘ynavoidable accident’’. Hence this was not an issue in

this case. The court should not have charged upon subjects

which were not properly made issues in the case.

In Carpenter v. B. € O. R. Co., 109 F. 2d 375 (C. A. 6,

1940), the court so held. At page 379 said:

Reasons for Granting the Writ —

‘‘ Applying the well-recognized rule that in deter-

mining the scope of instructions, the court must keep

in mind the issues as made by the pleadings in the

cause and that no instructions be given which tender an

issue not supported by the pleadings, the court com-

mitted an error in submitting to the jury the issue of

contributory negligence and assumed risk and in charg-

ing the jury that the fellow servant rule applied.’’

The other prejudicial effect which resulted from a

charge such as this was accurately noted by Judge Kalodner

in his dissent below. It is that such a charge is an infer-

ential ruling that there was no absolute duty on the part of

the defendant to provide the plaintiff with a reasonably safe

place to work, thus operating in effect to tak» from the

jury’s consideration the entire ‘‘safe place to work’’ issue

(at page 16a). Thus, not only was that issue emasculated by

the court’s failure to charge the duty of antecedent inspec-

tion, but what little life that might have been left in it was

destroyed by this inferential ruling.

In so doing, the courts below give recrudescence to the

rule of Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34

S. Ct. 635 (1914) declared no longer to be the law in

Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413 (1949).

Point IV.

A Jury Charge in an F. E. L. A. Case Which Places Upon

the Plaintiff the Burden of “Convincing” the Jury of

Negligence and Exonerates Defendant of Liability in

the Absence of That “Conviction” or “If There Is Just a

Doubt” in the Jury’s Mind Imposes Upon Plaintiff a

Prejudicial and Patently Erroneous Burden of Proof.

The concept of different burdens of proof in civil and

criminal cases is part of the bedrock of Anglo-Saxon law.

The criminal accused is shielded by a number of funda-

mental safeguards one of which is that a finding of guilt

can be made only after the prosecution has carried the

Reasons for Granting the Writ 21

great burden of proving guilt ‘‘beyond a reasonable doubt.’’

This is the heaviest burden of proof known to our law. With

that onerous burden this petitioner was shackled in an

F. E. L. A. action.

In most civil cases, and certainly in F. E. L. A. actions,

the plain*iff bears no such burden. He need only prove his

case by a mere preponderance of the evidence. It is primer

law that there is a great difference between the burdens of

‘*preponderance of the evidence’’ and ‘‘beyond a reason-

able doubt.’’ In order to meet the test of preponderance

of the evidence all that is necessary is that the evidence in

the plaintiff’s case merely outweigh that in the defendant’s

ease, so that it tips the scale in the plaintiff’s favor or

stated simply: the plaintiff need only show that he has a

better case than defendant. To require in an F. E. L. A.

case that the jury be ‘‘convinced’’ by argument to belief

beyond doubt is to place upon a plaintiff at least as heavy

a burden as that imposed on the prosecution in a criminal

case, and, of course, it profoundly diminishes railroad de-

fendants’ exposure to verdicts against them. The whole

remedial purpose of the F. E. L. A. is thus subverted. This

is precisely what occurred in the case at bar.

The trial court in this case charged the jury as follows

at Page 329(a):

‘*. . . If, after considering all the evidence, the ques-

tion of whether or not the defendant or its employees,

other than the plaintiff, of course, were negligent in

failing to use reasonable care to provide plaintiff with

a safe place to work is so evenly balanced in your mind

that you have no conviction, then you must find for the

defendant. It is her burden to convince you that there

was this negligence. . . .’? (Emphasis supplied.)

Further at Page 333(a) the Court went on to say in

emphatic reiteration of this manifestly erroneous state-

ment of law as to burden of proof:

*asons for Granting the Writ

‘‘Now, this is one of the big points for you, this ques-

tion of whether the plaintiff has proved to you by a

preponderance of the evidence that there was a failure

to use reasonable care under all these circumstances.

There she was with her galoshes, her overalls, her work

jacket. The evidence must do more than raise a doubt

in your mind on these points, if plaintiff is to sustain

the burden. If there is just a doubt in your mind, you

must bring in a verdict for the defendant, and that ends

your consideration of the case. You don’t need to go

any further... .”’ (Emphasis supplied.)

The net effect of these instructions was to impose upon

plaintiff the burden of ‘convincing”’ the jury which Web-

ster’s New Collegiate Dictionary defines to mean ‘‘to bring

by argument to belief beyond doubt.’’ Such has never been

the burden of proof in a civil jury case, least of all in

F. E. L. A. cases. The majority of the Court of Appeals,

straining to avoid the sheer error of the charge, affirmed

the trial court’s language, saying at page 8a:

‘‘In any event there must surely be a conviction in the

minds of the jurors before they may bring in a verdict

for the plaintiff. They must be convinced or satisfied

[footnote] in their minds that the plaintiff is entitled

to their verdict.’? (Emphasis supplied.)

As Judge Kalodner so capably demonstrates in his

dissent, certainly this is not the law. It is indeed note-

worthy that the majority below made no effort to deal with

the cases cited and discussed by Judge Kalodner. This

refusal is the source of the error and conflict now existing

as between the Third Circuit on the one hand and all state

courts of last resort and Courts of Appeals which have

ruled on the problem.

In Larson v. Jo Ann Cab Corp., 209 F. 2d 929 (C. A. 2,

1954), Judge Frank acknowledged the state of authorities

at Page 930:

Reasons for Granting the Writ 23

‘‘Courts and commentators have said that, in the ordi-

nary civil suit, usually a judge commits reversible error

if he instructs the jury that the plaintiff cannot re-

cover unless ‘he convinces’ them (or the like). [Foot-

note to authorities] Such a charge, it is maintained in-

dicates something midway between a ‘preponderance’

and ‘beyond a reasonable doubt,’ and should therefore

be reserved for certain exceptional sorts of civil cases

where more than a ‘preponderance’ is required. . . .”’

He recognized the objections to the court’s failure to

abide by the rule applicable when he stated at Page 935:

‘‘Nevertheless, at least until such time as we have

satisfactory returns from checks of popular reactions

to the traditional formulas, we think we should ad-

here to the ruling that, in an ordinary civil suit, such

as the instant case, words like ‘convince’ and ‘con-

viction’ should be shunned in a jury charge. . . .”’

Any attempt to distinguish Larson on grounds that the

above quoted language was dicta must fail in the light of

Johnson v. Erie Railroad Co., 236 F. 2d 352 (C. A. 2, 1956)

where the law in the Second Circuit is laid down very

clearly and in the same tenor as Larson. Johnson should

have been dispositive here. There the trial court had

charged that it was up to the plaintiff to prove the medical

side of his F. E. L. A. case with ‘‘reasonable certainty.’’

The unanimous Court found that this instruction was er-

roneous in holding at Page 354:

‘¢. | . At least as to injuries actually suffered prior

to the trial, it was incumbent on the plaintiff to prove

a causal connection with the defendant’s negligence

only by a fair preponderance of the evidence : to require

proof to a ‘reasonable certainty’ imposed an excessive

burden.’’

In the case at bar the trial judge not only required

proof at the level of ‘‘a reasonable certainty’’ by using the

24 Reasons for Granting the Writ

language as to ‘‘just a doubt in your mind,’’ but went even

further when he spoke in terms of ‘‘conviction.’’ This did

nothing less than lay upon plaintiff the burden of the prose-

cution in a criminal action.

The language in the case at bar as to ‘‘doubt”’ is strik-

ingly similar to language charged in the Johnson case,

supra and quoted at Page 355:

‘|. éf you have any doubt about it then he [the

plaintiff] has not sustained the burden of proof which

the law imposes upon him.’’

Of that instruction Judge Hincks said at Page 355:

‘That statement was erroneous. Notwithstanding a

doubt thus engendered a jury might yet properly find

that the plaintiff had sustained the burden under which

he labored.’’

State courts as well as Federal Courts recognize the

error of the language used in the case at bar. See Nelson

v. Lee, 32 So. 2d 22 (Ala., 1947); Hill Grocery Co. v.

Wilson, 89 So. 2d 687 (1956); Se-Ling Hosiery, Inc. v.

Margulies, 364 Pa. 45, 73 A. 2d 387 (1950); Botta v.

Brunner, 42 N. J. Super. 95 (1956).

Point V.

A Jury Charge in an F. E. L. A. Case Which Instructs That

« _ . [the Jury] Should No More Be Swayed by

Sympathy for the Plaintiff Than for the Widows and

Orphans Who May Be Receiving Dividends or Interest

From [Defendant Railroad] and Who May Need That

Income for Themselves and for Their Families” * Is

. Highly Prejudicial and in and of Itself Commands the

Grant of a New Trial if a Verdict for Defendant Is

Returned.

As we have shown, supra, this charge was an extraor-

dinary concentration of error. Perhaps the single most

3. 325(a).

Reasons for Granting the Writ 25

shocking and prejudicial aspect of it was the instruction

quoted in the heading of this Point, supra.

At the very outset of the charg: the trial judge errone-

ously struck out one whole theory of liability. Having

thus improperly sapped petitioner’s cause of action of much

of its strength, he immediately thereafter fatally infected

what little was left of her case with the above-quoted in-

struction.

In attempting to justify the instruction, the majority

below stated at page 3a:

««. | , [the trial judge] was not, as the plaintiff

argues, bringing into the case for the jury’s considera-

tion additional parties who had no place there, as was

done in the cases which the plaintiff cites. On the

contrary he was obviously seeking to eliminate all such

extraneous parties on both sides from the jury’s con-

sideration and in this graphic way to make it clear to

them that no sympathy of any sort for either side

should play any part in their decision.’’

Fairly paraphrased, this statement suggests that the

way a trial judge should teach objectivity is to bring ex-

traneous material into a case and then tell the jury to dis-

regard it. It is a curious epistemology which expects a jury

to learn objectivity by being asked to ignore the emotionally

charged contrast of needy widows and orphans—untold

numbers of them—pitted against one litigating claimant.

These were widows and orphans of whose existence,

we hasten to add, there was not a shred of proof in the

entire record of the case, and of whose dependency on the

dividends and interest from respondent there was an

equally total failure of proof.

In the terms of the trial judge and the majority below,

this is ‘‘neutraliz[ing]’’—a concept on these facts approxi-

mately as valid as unscrambling an egg.

4. See “Point I”, supra.

26 Reasons for Granting the Writ

Even assuming, pro arguendo, that the comments of

petitioner’s counsel were not proper, this utterance by the

trial judge can no more be justified in law than in instruc-

tional psychology. If the trial judge thought it was incor-

rect, he should have charged the jury to ignore that refer-

ence and thus take it from their consideration, a recognized

procedure he had no hesitation in using when he charged

competent evidence out of the case So too he could have

ordered a mistrial or set aside a verdict for petitioner.

The majority below, so quick to invoke the trial judge’s

right of ‘‘neutralizing’’ alleged prejudice with rampant

prejudice, has failed to heed the obligations of the rule laid

down within the recent past by its very own court: that

counsel may not reply in kind to improper remarks made

by opposing counsel. Robmson v. Pennsylvania R. Co., 214

F. 2d 798 (C. A. 3, 1954).

If recrimination by counsel be barred, how much more

unseemly is it that the court indulge the equivalent of re-

crimination and then euphemize it as ‘‘neutralizing.’’ We

protest not the motive but the effect of such behavior, and

that effect is more prejudicially telling when accomplished

by a court than it would be if attempted by zealous counsel

in the heat of trial because it is invested with the dignity

and authority of the court.

The instruction complained of was prejudicially argu-

mentative and erroneous, inexcusable on the theory sought

to justify it below, and a radical departure from traditional

concepts of fair trial. Quercia v. U. S., 289 U. S. 466, 53

S. Ct. 698 (1933); Sperber v. Connecticut Mut. Life Ins.

Co., 140 F. 2d 2 (C. A. 8, 1944), cert. denied 321 U. S. 798,

64 8. Ct. 939 (1944) ; Knapp v. Kinsey, 232 F. 2d 458 (C. A.

6, 1956), cert. denied 352 U. S. 892, 77 S. Ct. 131 (1956) ;

Cook v. U. 8., 18 F. 2d 50 (C. A. 8, 1927) ; Boatright v. U. 8.,

105 F. 2d 737 (C. A. 8, 1939) ; Stoneking v. U. S., 232 F. 2d

385 (C. A. 8, 1956), cert. denied 352 U. §. 835, 77 S. Ct. 54

5. See “Point I”, supra.

27

Conclusion

(1956) ; Virginian Railway Co. v. Armentrout, 166 F. 2d 400

(C. A. 4, 1948). Identical conduct has been declared prej-

udicial reversible error in Pennsylvania, where this trial

court sat. Narcisco v. Mauch Chunk Twp., 369 Pa. 549,

87 A. 2d 233 (1952); Knight v. Allegheny County, 377 Pa.

502, 105 A. 2d 141 (1954).

If this error is countenanced, and not corrected by

grant of certiorari and reversal of the judgment below, the

mischief to which it will lead will be immediate. It is a

bold invitation to every corporate defendant in personal

injury actions—F. E. L. A., Jones Act, common-law neg-

ligence—to invoke the pitiful, irrelevant (and unproven)

image of needy widows and orphans dependent upon de-

fendants for dividends and interest whenever sympathy—

real or otherwise—comes into a plaintiff’s case. The argu-

ment such defendants will urge is «s foreseeable as the

mischief: ‘‘If courts can ‘neutralize’ this way, surely we

can too.’’

CONCLUSION.

The judgment in the case at var was the result of seri-

ous and prejudicially erroneous errors of law justification

for which was attempted in the decisions supporting the

judgment below. Those decisions are in direct conflict with

a mass of consistent, authoritative law in this court, fed-

eral Courts of Appeal and state courts of last resort on a

number of vital aspects of the Federal Employers Liability

Act and civil trial by juvy generally.

Unless corrected here by a grant of certiorari, reversal

and new trial, the errors below will deprive petitioner of

rights granted her by solemn Act of Congress, ramify into

emasculating administration of the F. E. L. A. in courts

throughout the entire nation and thus deprive countless

other employees of interstate carriers by rail of the bene-

fits of this remedial legislation. The errors below also pose

oe

28 Conclusion

the immediate threat of serious disruption of long standing

fundamental rules governing civil trial by jury generally.

This petition for a writ of certiorari should therefore

be granted.

Respectfully submitted,

B. Naruantet Ricuter,

Szyrmovr I. Tot,

Barsara Ann Durry,

RicutTer, Lorp anp Levy,

Counsel for Petitioner.

APPENDIX.

UNITED STATES COURT OF APPEALS

For tae Turep Circuir

No. 11,908

LUCILLE H. BURCH,

Appellant

v

READING COMPANY

AppgeaL From tue Unrrep Srares District Court ror THE

Bastern District or PENNSYLVANIA

Argued November 5, 1956

Before Maris and Ka.opner, Circuit Judges, and WorrTen-

DYKE, District Judge.

Opinion of the Court.

(Filed January 8, 1957)

By Manis, Circuit Judge.

This is an appeal by the plaintiff from a judgment en-

tered on a verdict in favor of the defendant in an action

brought under the Federal Employers’ Liability Act to

recover for injuries suffered by the plaintiff while working

as a track laborer for the defendant railroad. The plaintiff

asserts that the trial judge erred in certain trial rulings

and instructions to the jury. All the matters complained

of were fully considered by the district court in an elaborate

opinion by Judge Van Dusen denying the plaintiff’s motion

(1a)

2a Opinion of the Court

for a new trial. 140 F. Supp. 136. Finding ourselves in

full accord with what is there said we conclude that the

judgment should be affirmed. To what Judge Van Dusen

has said we need add merely a few comments with respect to

three of the objections raised to the trial judge’s charge.

The plaintiff was injured on November 27, 1950 while

working as a member of a railroad section gang at Scott’s

Lane crossing in the Hast Falls section of Philadelphia.

That morning her task was to carry dirt in a shovel from

a pile by the side of Scott’s Lane below the crossing to fill

in holes under the rails of the tracks in the crossing. She

had been engaged in this work for about an hour when on

crossing Scott’s Lane with an empty shovel returning from

the tracks toward the pile of dirt she fell and broke her

ankle. It was for this injury that she sought to recover

damages in the suit before us.

At the time of the trial the plaintiff was a widow 55

years of age. She testified that she had raised two chil-

dren, not her own, both of whom were then grown and no

longer living with her. In his closing argument to the jury,

counsel for the plaintiff laid much stress on this fact, ap-

pealing for a verdict which would enable her to be ‘‘a

mother to little children that needed it’’ and to make it

possible for her to leave something ‘‘to those who are

near and dear to her’’.. To neutralize any possible preju-

dice resulting from this appeal on behalf of nonexistent

‘little children’? the trial judge felt it was his duty, as he

states in his opinion,? to charge the jury as follows:

‘‘If you are sympathetic or prejudiced in favor

of or against either the plaintiff or the defendant, you

should not allow such sympathy or prejudice to in-

fluence you at all in your verdict. You should no more

be swayed by sympathy for the plaintiff than for the

widows and orphans who may be receiving dividends

1. The exact used by counsel is quoted in the opinion

of the district court, 140 F. Supp. 136, 150-151.

2. 140 F. Supp. 136, 151.

Opinion of the Court 3a

or interest from the defendant company and who may

need that income for themselves and for their families.

No sympathy of any sort fur either side should play

any part in your decision.’’

While this language is perhaps not what this court

would have chosen we cannot hold that it was error for the

trial judge so to charge under the circumstances. He was

not, as the plaintiff argues, bringing into the case for the

jury’s consideration additional parties who had no place

there, as was done in the cases which the plaintiff cites.

On the contrary he was obviously seeking to eliminate all

such extraneous parties on both sides from the jury’s con-

sideration and in this graphic way to make it clear to them

that no sympathy of any sort for either side should play

any part in their decision. A federal trial judge has the

right, indeed the duty, to do this.’ And he has a wide dis-

cretion as to the manner of doing it.

We must assume that jurors are intelligent and con-

scientious individuals, each with a background of knowl-

edge and experience. They are not robots who come to the

courthouse with minds tabula rasa and who respond me-

chanically to every impression they receive in the court

room. On the contrary they are expected, as by explicit

direction of the trial judge this jury were, to use their

common sense and their experience in the affairs of life

in evaluating the testimony and reaching a verdict. It

would be naive to assume that a group of intelligent jurors

did not know, what is common knowledge, that a large rail-

road corporation such as the defendant here is very likely

to have among its stockholders widows and orphans who

receive income from its dividends. To thus point out that

sympathy might enter into the picture on the defendant’s

side as well as the sympathy for which the plaintiff’s coun-

sel had appealed, and to direct that all considerations of

sympathy on either side be left wholly out of their delibera-

3. See N. Y. Central R. R. Co. v. Johnson, 1929, 279 U. S.

310, 318.

4a Opinion of the Court

tions was in our view within the discretionary power of the

trial judge in this case.

Another matter calling for additional comment relates

to the charge of the trial judge with respect to the plain-

tiff’s burden of proof. In this connection the trial judge

said to the jury:

‘*The plaintiff has the burden of proving to you by

the weight or the fair preponderance of the evidence

that the defendant or its employees, other than the

plaintiff, did not provide her with a reasonably safe

place to work and that this negligence caused, in whole

or in part, this injury to plaintiff. If, after consider-

ing all the evidence, the question of whether or not the

defendant or its employees, other than the plaintiff,

of course, were negligent in failing to use reasonable

care to provide plaintiff with a safe place to work is

so evenly balanced in your mind that you have no con-

viction, then you must find for the defendant. It is her

burden to convince you that there was this negligence.

Also, if the question of whether or not such negligence

was a factor in causing the injury is so evenly balanced

in your mind that you have no conviction, then you

must find for the defendant.

‘*Now, this is one of the big points for you, this

question of whether the plaintiff has proved to you by

a preponderance of the evidence that there was a fail-

ure to use reasonable care under all these circum-

stances. There she was with her galoshes, her overalls,

her work jacket. The evidence must do more than

raise a doubt in your mind on these points, if plaintiff

is to sustain the burden. If there is just a doubt in

your mind, you must bring in a verdict for the defend-

ant, and that ends your consideration of the case. You

don’t need to go any further. On the other hand, if

you are convinced by the preponderance of the evi-

Opinion of the Court 5a

dence that the defendant or its employees, other than

the plaintiff, were negligent, and that this negligence

was a factor in causing the injury, then you must find

for the plaintiff.

“*If you find for the plaintiff for the reasons stated

above, then you must consider the damages. The mere

fact that I instruct you on the subject of damages must

not be considered as an indication of my views on

whether or not the plaintiff has sustained her burden

of proving that the defendant or its employees were

negligent in failing to provide her with a safe place to

work. If you find that the plaintiff sustained the

burden of proving the defendant negligent, through

its failure to use reasonable care in providing a safe

place to work, then you must carefully consider all the

following elements of damage: First, loss of past

earnings; second, loss of future earnings; third, pain,

suffering, injuries, mental and physical; fourth, medi-

cal expenses, past and future.

**. . . I must point out to you the various possi-

bilities in accordance with the contentions of counsel,

and it is for you to find the facts, and nothing I said

should be allowed to make you feel that the plaintiff

had not sustained her burden of proving this case or

that she had. That is for you to decide. That is your

problem. All I can tell you is the law, which is that the

defendant has the duty to use reasonable care and to

provide this plaintiff with a reasonably safe place to

work under ail the circumstances.’’

The plaintiff objects to these instructions upon three

grounds. (). is that it was error, as she argues, for the

trial judge w use the words ‘‘conviction’’ and ‘‘convince’’

ia explaining to the jury the nature of their fact finding

6a Opinion of the Court

duty in this civil case. Another is that it was equally

erroneous to use the word ‘‘doubt’’ for that purpose. The

third is that it was error in the two portions of the charge

last quoted not to add to each reference to the plaintiff’s

burden of proof the statement that the proof need only be

made by a preponderance of the evidence. We are satis-

fied that there is no merit in the plaintiff’s contentions in

th’. regard and that the portions of the charge which we

have quoted, considered as a whole, adequately informed

the jury as to their legal duty in the case. The problem in-

volved in the first two contentions, however, calls for a

little more searching analysis than is customarily given to

it. For we are here dealing with ancient legal phrases,

cliches which may have precise meaning for judges and

lawyers but which must be far less than clear to lay jurors.‘

It is, however, with the success of these statements in il-

luminating the minds of jurors as to their fact finding duty

that we must be concerned.

The classical statement of the burden of proof in an

ordinary civil case such as this is that the facts must be

proved by a ‘‘preponderance of the evidence’’. But there

are obvious difficulties with this metaphorical description

of the plaintiff’s burden of persuasion. It does not refer

directly to the fact finding process itself but merely to the

character of the evidence required and even there is less

than clear since it refers only to the ‘tweight’’ of the evi-

dence. The latter ambiguity is perhaps cleared up by the

usual statement to the effect that ‘*preponderance’’ is not

dependent upon the number of witnesses testifying on

either side but rather upon the credibility which, in the

. This is hically indicated by the results of a uestionnaire

sent up former jurors by Judge Walter “Wanamaker of Akron, Ohio.

In answer to the question, “What propositions of law were most

difficult to understand?” the answers were:

“a. Preponderance of the evidence 232

b. Reasonable doubt a

c. Negligence

d. Proximate 203.”

lo cause

Trial by Jury, 1937, 11 U. of Cin. L. Rev. 119, 192.

Opinion of the Court Ta

light of all the evidence in the case, the jury attributes to

their testimony and the effect of that testimony in inducing

belief in its truth. But even so, it has been suggested with

much force that the use of this ancient metaphor re-

ferring, <8 it does, to the ‘‘greater weight’’ of evidence is

intrinsically of very limited usefulness in giving to a juror

real guidance as to his duty. One cannot weigh evidence

as on a scale. Certainly no mechanical device is available

to jurors to measure the truthfulness of a witness or the

accuracy of his memory.

Moreover, as we have suggested, the ‘‘preponderance

of the evidence’’ formulation is not directed to the basic

procedural problem confronting the jury, that is, the degree

of accuracy in finding the facts which they are being asked

to employ in reaching their verdict in a civil case. Cer-

tainly they are not required to find the facts to an absolute

certainty or even beyond a reasonable doubt, as in a criminal

case. But we do not think it is wrong to say, as the trial

judge in this case did, that the jury must be convinced by

the fair preponderance of the evidence that the facts were

as the plaintiff asserted them to be.

It would doubtless be much more comprehensible to a

jury if they were told, as Professor McBaine has suggested

in his thoughtful essay on the subject,* that the plaintiff’s

burden is to convince them upon all the evidence before them

that the facts asserted by the plaintiff are more probably

true than false." This, we think, is the intended effect of

5. See Judge Frank’s discussion of the subject in Larson v. Jo

Ann Cab Corp., 2 Cir. 1954, 209 F. 2d 929. See also McBaine,

Burden of Proof: Degrees of Belief, 1944, 32 Cal. L. Rev. 242, 247;

McCormick on Evidence, 1954, p. 676.

6. McBaine, Burden of Proof: Degrees of Belief, 1944, 32 Cal.

L. Rev. 242, 262. And see Morgan, The Law of Evidence, 1941-1945,

a L. Rev. 481, 492-493, and McCormick on Evidence, 1954,

33 7. In Beckwith v. Town of Stratford, 1942, 129 Conn. 506, 29

A. 2d 775, Chief Justice Maltbie described the standard of proof in a

civil case as “proof which produces ‘a reasonable belief of the

ability of the existence of the material facts’”. Likewise in M v.

Slawsby, 1915, 77 N. H. 555, 94 A. 193, Chief Justice Parsons said:

8a Opinion of the Court

the ‘‘preponderance of the evidence’’ rule and it would

place the emphasis upon the nature of the function which

the jurors are being asked to perform and the degree of

belief which must be produced in their minds before the

plaintiff is entitled to a favorable finding from them.

In any event there must surely be a conviction in the

minds of the jurors before they may bring in a verdict for

the plaintiff. They must be convinced or satisfied * in their

minds that the plaintiff is entitled to their verdict. This, of

course, need not be a conviction of the certainty of the

facts they find,® but they must at least be convinced that the

evidence considered as a whole, i ‘*preponderance’’ to use

the traditional term, indicates that the facts asserted by the

plaintiff are probably true. The contrast here is between

two different states of mind, a state of belief and a state of

doubt or uncertainty. If, as the trial judge suggested in his

charge in this case, the eivdence merely raises a doubt in the

jurors’ minds as to whether or not the facts asserted by the

plaintiff are true or if in their minds the probabilities of

those facts being true or false appear equal the plaintiff

has not met his burden of proof and a finding for the plain-

tiff would be inconsistent with the jurors’ duty to render a

true verdict.

We are satisfied that in the portions of the charge to

which the plaintiff objects and which we have quoted above

the trial judge adequately explained to the jury their duty

in this regard. We are not impressed with the plaintiff’s

the burden resting upon him.” And see Northwest States Utilities

Co. v. Ashton, 1937, 51 Wyo. 168, 65 P. 2d 235; Mutual Life Ins.

Co. of New York v. Springer, 1937, 193 Ark. 990, 104 S. W. 2d

In this setting the two verbs appear to be yms.

M vy. Waterhouse, 1896, 113 Cal. 407, 45 P. 866; 20

ur., Evidence, §§ 1249, 1250.

Opinion of the Court 9a

lent in connection with each of the references which he made

later in his charge to the plaintiff’s burden of proof. He

had already adequately, as we have pointed out, instructed

the jury as to their duty to follow the preponderance rule

and we certainly cannot say that it was error not thus to

reiterate summary references to that rule.

The other matter upon which we shall comment briefly

relates to the instructions given by the trial judge with

respect to the defendant’s duty to provide the plaintiff

with a safe place to work. The following portion of the

charge is objected to:

‘*Reasonableness varies with the place and the

danger of the work, Less diligence is required to con-

stitute reasonable care where the danger is slight than

would be required where the danger is great. If you

find that the injury resulted from an accidental slip on

one of a few pebbles, neither the defendant nor the

plaintiff could be said to be negligent, and you must

find a verdict for the defendant, of course. The rail-

road isn’t responsible for accidents. They might hap-

pen anywhere.’’

In considering the object raised to this language it must

be borne in mind that the trial judge affirmed and read to

the jury 8 of the plaintiff’ points for charge which related

to the applicable principles of law with respect to the de-

fendant’s duty to provide the plaintiff with a safe place to

work. Among these were the plaintiff’s 7th point, as fol-

lows:

‘*7, If you find that the plaintiff slipped, tripped

or fell because of the presence of loose stones or pebbles

which were present in the highway where she was

obliged to work or where the defendant knew or should

have known she would be working and that such condi-

tion was one which the railroad company knew or

should have known was one whick aight cause her to

fall and suffer injury, then you may find that the failure

Opinion of the Court

of the railroad company to make the place reasonably

safe or to provide a reasonably safer way for the

plaintiff to perform her duties was negligence. If you

find that the plaintiff sustained her injuries in whole or

in part by reason of such negligence on the part of the

defendant railroad company then your verdict must be

for the plaintiff.’’

It must also be remembered that the plaintiff’s place of

work at the time of her injury was on a public street upon

which she slipped and fell. The evidence was sharply

conflicting as to whether the street was in a dangerous

condition, being covered with loose pebbles, pr whether it

provided a safe surface for walking with only a few pebbles

scattered here and there. In the light of the charge as a

whole and the affirmance of the plaintiff’s points the instruc-

tion complained of permitted the jury to find that the street

upon which the plaintiff was walking was a reasonably safe

place to work and that her injuries were the result of a

purely accidental slip by her on one of a few pebbles. This

was not error. For contrary to the rule under workmen’s

compensation acts the Federal Employers’ Liability Act

does not impose liability without fault and there is, there-

fore, no liability on the part of an employer under that Act

for injuries suffered by an employee as a result of a pure

accident occurring while working in a reasonably safe place.

The judgment of the district court will be affirmed.

Katooner, Circuit Judge, dissenting

I disagree with the majority’s view that the trial judge

was acting within his discretionary power when he made

reference in his charge to ‘‘. . . widows and orphans who

may be receiving dividends or interest from the defendant

company and who may need that income for themselves and

their families. . . .”

In my opinion the injection into the case of the pecuni-

ary interest of widows and orphans dependent upon income

lla

Opinion of the Court

from their investment in the defendant railroad company’s

securities constituted prejudicial error requiring reversal.

Two wrongs don’t make a right.

Plaintiff’s counsel was clearly out of bounds when he

injected into the case the fact that the plaintiff had raised

two foundlings (long since grown up) as her own and at

least inferentially appealed for a verdict which would permit

further such philanthropy on her part. His conduct war-

ranted withdrawal of a juror or at the very least a vigorous

caution to the jury to disregard this unjustifiable attempt to

invoke its sympathy. The trial judge chose to take neither

one of these available steps but on the other hand, no doubt

unwittingly, chose, as the majority put it, ‘‘to neutralize any

possible prejudice resulting from this appeal on behalf of

non-existent ‘little children.’ ’’?

I fully subscribe to the majority’s view as to the trial

judge’s motive but we cannot give judicial sanction to

fighting fire with fire. Here the trial judge sought to ex-

tinguish the flame of sympathy for foundlings ignited by

plaintiff’s counsel with a countering flame of sympathy for

widows and orphans. Neither the foundlings nor the

widows and orphans were parties to this litigation and

their injection into the case was violative of the rights of

the respective parties and constituted reversible prejudicial

error. Cf. Knight v. Allegheny County, 377 Pa. 502 (1954)

and Narcisco v. Mauch Chunk Township, 369 Pa. 549 (1952).

As to the trial judge’s instructions with respect to the

plaintiff’s burden of proof.

In the first two portions of the trial judge’s charge

which the majority quotes he twice instructed the jury that

1. The trial ju t it this way in his opinion rted at 140

F. Supp. 136 (E. re 1956), at page ° Sygate -

“In view of this emphasis on these ‘little children’ and the plain-

tiff having something to leave to those ‘who are near and dear to her,’

the trial judge felt it was his duty to neutralize any possible prejudice

by including in his charge a sentence indicating that there might be

those interested in the defendant who were also in need and included

the following paragraph in his charge :”

12a Opinion of the Court

it must find for the defendant if it had ‘‘no conviction’’ and

also twice instructed it that it must be ‘‘convinced’’ of the

defendant railroad’s negligence supplementing those in-

structions with the admonition that ‘‘If there is just a doubt

in your mind, you must bring in a verdict for the de-

fendant .. .’’

I disagree with the majority’s view that the instruc-

tions stated did not constitute prejudicial error.

As was stated by Judge Frank in Lerson v. Jo Ann Cab

Corp., 209 F.2d 929, 930, 935 (2d Cir. 1954):

‘‘Courts and commentators have said that, in the

ordinary civil suit, usually a judge commits reversible

error if he instructs the jury that the plaintiff cannot

recover unless he ‘convinces’ them (or the like). Such

a charge, it is maintained indicates something midway

between a ‘preponderance’ and ‘beyond a reasonable

doubt,’ and should therefore be reserved for certain

exceptional sorts of civil cases where more than a

‘preponderance’ is required . . . Nevertheless... .

we think we should adhere to the ruling that, in the

ordinary civil suits . . . words like ‘convince’ and

‘conviction’ should be shunned in « jury charge.’’*

In common parlance ‘‘conviction’’ is synonymous with

‘‘certainty’”’ and ‘‘convince”’ is ‘‘to cause ‘o feel certain.’’*

In instructing the jury that it must tind for the defend-

ant if it had ‘‘no conviction’’ and that plaintiff had the

burden ‘‘to convince’’ it that defendant was negligent, the

trial judge imposed a burden of proof on plaintiff far in

excess of that imposed by the ‘‘preponderance of the evi-

dence’’ rule.

In Nelson v. Lee, 32 S.2d 22, 24 (1947) the Supreme

Court of Alabama held that reversible error was committed

by the trial judge in giving the following instruction:

2. In that case no exception was taken to the charge as made and

the Court held it was not adequately reserved for review.

3. Webster’s New World Dictionary of the American Language,

College Ed. 1956.

Opinion of the Court 13a

‘*T charge you, gentlemen of the jury, that if after a

consideration of all the evidence in this case your

minds are left in a state of doubt and uncertainty so

that you are not reasonably satisfied from the evidence

that on the occasion complained of the defendant was

guilty of negligence in and about the transportation,

handling or removal of the rifle in question you cannot

return a verdict in favor of the plaintiff and against

the defendant.’’

In doing so it stated that ‘‘. . . this charge placed too high

a degree of proof upon the plaintiff.’’

The same court in the recent case of Hill Grocery Co.

yv. Wilson, decided September 13, 1956, 89 S.2d 687, ruled

that the trial judge had correctly, on a motion for a new

trial held that he had committed prejudicial error when

he had given the following instructions to the jury:

‘*. . . Where the evidence leaves it uncertain as to

whether the cause of the injury was something for

which the defendant was responsible, or something for

which the defendant was not responsible, there is a

failure of proof, and unless you are reasonably satisfied

from the evidence in this case that the negligence of the

defendant, if any, was the proximate cause of the in-

juries sustained by Mrs. Wilson, you cannot return a

verdict in favor of the plaintiff and against the de-

fendant.’’

In ruling that the trial judge had acted correctly in

granting a new trial the Supreme Court of Alabama said

of the instructions which had been held to be prejudicial

error:

‘*. . . if the jury had the slightest uncertainty as to

whether the defendant was responsible for the injury,

they were required to find that there was failure of

proof as to such fact. The effect of the charge is to

place the burden upon the plaintiff to show beyond all

uncertainty that the defendant was responsible for the

14a Opinion of the Court

injury sustained by the plaintiff. As pointed out in the

foregoing authorities, the charge places too high a

degree of proof upon the plaintiff.’’

In Botta v. Brunner, 42 N.J. Super 95 (1956), the

Appellate Division of the Superior Court of New Jersey

held that the trial judge had committed prejudicial error

when he charged the jury that it was incumbent upon the

plaintiff ‘‘. . . to prove by clear convincing evidence that

her injuries were the result of the accident,’’ and that ‘‘The

evidence must, therefore, establish with reasonable cer-

tainty that the injuries and losses for which you award any

damages are properly attributable to the accident.’’ With

respect to these instructions the Court stated:

‘‘There can be no doubt that the court’s imposition

upon plaintiff of the burden of producing ‘clear, con-

vincing’ evidence that her claimed ‘injuries’ easily to

be understood by the jury in the added sense of dis-

abilities, were the result of the accident, assessed her

with a probative burden exceeding what the law calls

for in an ordinary civil action.’’

In Johnson v. Erie Railroad Company, 236 F.2d 352,

354, 355 (2d Cir. 1956), after correctly charging the jury

with respect to the burden of proof the trial judge went on

to say:

‘It is up to you ladies and gentlemen to determine

whether the evidence adduced before you shows with

reasonable certainty that the plaintiff’s alleged injury

or future disability, if you find he has any, resulted

from the aggravation of the previous condition, or,

rather from the previous condition itself, in order to

warrant a recovery of damages in this case.’’

The Appellate Court held that the instruction given

was erroneous, stating:

‘¢. | . At least as to injuries actually suffered prior

to the trial, it was incumbent on the plaintiff to prove a

Opinion of the Court lida

causal connection with the defendant’s negligence only

by a fair preponderance of the evidence; to require

proof to ‘a reasonable certainty’ imposed an excessive

burden.’’ (Emphasis supplied)

The Court also held erroneous the following instruction:

‘*. . . I don’t want to review that evidence, but it is

up to you to decide whether you want to believe one or

the other, because if you have any doubt about it then

he (the plaintiff) has not sustained the burden of proof

which the law imposes upon him.’’

Said the Court of that instruction:

‘‘That instruction was erroneous. Notwithstanding a

doubt thus engendered a jury might yet properly find

that the plaintiff has sustained the burden under which

he labored.’’

In the third and fourth portions of the trial judge’s

instruction relating to plaintiff’s burden of proof, quoted

by the majority the jury was thrice told that plaintiff must

sustain ‘‘the burden of proving’’ the defendant’s negli-

gence. That of course was reversible error since the in-

structions omitted any reference to a ‘‘fair preponderance

of the evidence.’’

In Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45

(1950), the trial judge instructed the jury in a civil action

that the plaintiff ‘‘had the burden of proof’’ and did not add

the phrase ‘‘by the fair preponderance of the evidence.’’

Said the Court at page 50:

‘«. . . Ifa trial judge in a civil case instructs the jury

that plaintiff ‘has the burden of proof’ the defendant

has no cause for complaint, because of what is implicit

in that phrase when it stands alone. However, a plain-

tiff would have grounds for complaint if the jury was

not instructed that ‘burden of proof’ im a civil case

meant only ‘by the fair preponderance of the evidence’

16a Opinic a of the Court

the members of the jury might have the idea that the

phrase ‘burden of proof’ meant some higher degree

of proof than mere preponderating evidence. There-

fore, the omission of the phrase ‘by the fair preponder-

ance of the evidence’ im the judge’s charge im the in-

stant case was something of which the plaintiff could

have justly complained . . .”? (Emphasis supplied)

With respect to the sum total of the instructions as to

burden of proof, above discussed, the following statement

made in Johnson v. Erie Railroad Company, supra, at page

156 is particularly appropriate:

‘¢We need not consider how far separately each of the

statements referred to would require reversal, since

the cumulative effect of the several references is such

as to make the possibility of confusion too great to dis-

regard. We think the plaintiff entitled to a new trial.”’

Because of the view expressed that a new trial should

be granted because of the trial judge’s erroneous and con-

fusing instructions relating to the plaintiff’s burden of

proof, it is unnecessary to dwell at length on her contention

respecting the trial judge’s instruction that

‘©. . . If you find that the injury resulted from an

accidental slip on one of a few pebbles, neither the de-

fendant nor the plaintiff could be said to be negligent,

and you must find a verdict for the defendant.’’

I subscribe to the plaintiff’s contention that this in-

struction was erroneous because it inferentially ruled that

there was no absolute duty on the part of the defendant to

provide plaintiff a reasonably safe place to work and oper-

ated in effect to remove from the jury’s consideration the

‘*safe place to work’’ issue.

JUDGMENT.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this case be, and the same is hereby affirmed,

with costs.

Attest:

Ina O. Creskorr,

Clerk.

January 8, 1957.